author: FREEDMAN, J.

text:
    AMAL DAS v. RUTH RODGERS
    (AC 16434)
    Foti, Lavery and Freedman, Js.

      Argued September 15
    officially released December 2, 1997

      Mark S. Rosenblit, for the appellant (defendant).

      David A. Haught, for the appellee (plaintiff).
   Opinion

FREEDMAN, J.

The defendant appeals from a judgment of strict foreclosure, rendered by the trial court, following the trial court’s acceptance of an attorney trial referee report. On appeal, the defendant claims that the trial court improperly (1) failed to correct the attorney trial referee’s findings of fact as requested by the defendant, (2) found that the defendant’s predecessor in interest, David Rubinfeld, transferred the subject attached property without notice to the plaintiff and in violation of a restraining order, and (3) concluded that the judgment hen filed by the plaintiff against the defendant’s real property related back to a prior attachment against the property. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1986, the plaintiff in the present action, Amal Das, commenced an action against David Rubinfeld, claiming damages for breach of contract and breach of warranty (Das I). That action was assigned docket number CV860313663S. The trial court in that action granted the plaintiffs application for an attachment in the amount of $20,000 on five parcels of land in Avon. The trial court further enjoined Rubinfeld from transferring the attached property. On January 16, 1986, an attachment hen on the subject real property was properly recorded on the Avon land records. On March 16,1987, the court ordered the attachment increased to $100,000 on the basis of the stipulation of the parties.

The case proceeded to trial in 1990. During jury selection, the parties reached an agreement, in the presence of the presiding judge, to forgo the jury trial and to proceed to arbitrate the issues under the rules of the American Arbitration Association. The award of the arbitrator was to be presented to the court for judgment in the pending action. By agreement dated November 16,1990, the parties submitted the dispute to arbitration as agreed.

The arbitration proceedings were closed on March 24, 1993. The arbitrator issued his award on April 6, 1993. Pursuant to the award, Rubinfeld was to pay $28,539.45 to the plaintiff. On May 4, 1993, the plaintiff filed an application to the court to confirm the arbitrator’s award in the action that was still pending in the Superior Court. The Superior Court clerk’s office returned the May 4 application with instructions that the application be served on Rubinfeld with an order to show cause and returned to the court with a $150 filing fee.

The plaintiff then prepared and filed a duplicate application dated May 11, 1993. This application was served and returned to the court with the filing fee (Das II). The second application was in all relevant respects identical to the first application. The only difference between the applications was that the typewritten caption on the first application referred to case number CV 86-0313663-S and was dated May 4, 1993, while the second application was dated May 11, 1993, and had a typewritten caption stating “Return Date: June 1, 1993” to which had been added in the clerk’s handwriting “704294” without a CV date. In addition, the second application included forms with respect to service, summons and an order to show cause.

On May 24, 1993, the trial court entered two orders in Das II. One order reduced the attachment on lot 25 from $100,000 to $30,000, and the second rendered judgment confirming the arbitrator’s award. On June 2, 1993, the plaintiff filed a judgment lien on the property that had been attached at the time the litigation between the parties commenced in 1986. On September 10,1993, the plaintiff brought the present action to foreclose the judgment lien. The defendant proffered a defense that the judgment, lien was invalid and unenforceable.

The case was tried before an attorney trial referee, who concluded that the judgment lien was valid and enforceable against the interest of the defendant, Ruth Rodgers. The attorney trial referee, therefore, concluded that a judgment of foreclosure should be rendered against the defendant on the judgment lien in the amount decreed by the court. The attorney trial referee denied the defendant’s motion to correct the attorney trial referee report. The trial court subsequently denied the defendant’s exception to the attorney trial referee report and overruled the defendant’s objection to the acceptance of the report. Following the entry of a judgment of strict foreclosure and the setting of law days, the defendant appealed to this court.

I

We first address the defendant’s claim that the trial court improperly concluded that the judgment lien related back to the original attachment. If the defendant prevails on this claim, we need not address the defendant’s remaining claims.

According to the defendant, the trial court improperly held that the judgment lien related back to the attachment obtained in Das I. The plaintiff counters by claiming that the trial court correctly determined that the plaintiffs application to confirm the arbitration award in Das II was not a separate civil action but, rather, was ancillary to, consolidated with, or a part of the civil action in which the subject property was previously attached. We agree with the plaintiff.

“General Statutes § § 52-328 and 52-380a together provide a four month period after final judgment in which a prevailing party may file a judgment lien so that the lien relates back to the prejudgment attachment.” Mac’s Car City, Inc. v. DiLoreto, 238 Conn. 172, 173 n.1, 679 A.2d 340 (1996). According to the defendant, the plain language of both §§ 52-328 (b) and 52-380a (b) makes clear that a judgment lien securing a judgment can relate back only to an attachment obtained in the same action in which said judgment was rendered. Since no judgment was ever rendered in Das I, the defendant argues that the plaintiff has no judgment lien that can relate back to his attachment in Das I.

The defendant’s argument, however, is premised on his claim that Das II was a separate action from Das I. The court in Waterbury v. Waterbury Police Union, 176 Conn. 401, 408, 407 A.2d 1013 (1979), held, however, that “proceedings brought pursuant to § 52-420 to confirm, modify or vacate arbitration awards are not civil actions within the meaning of title 52.” In so holding, the court noted that “applications brought to confirm, modify or vacate arbitration awards are special statutory proceedings. Boltuch v. Rainaud, 137 Conn. 298, 301, 77 A.2d 94 [1950]. It has long been established by the courts of this state that certain statutory proceedings are not ‘civil actions’ within the meaning of title 52 of the General Statutes.” Waterbury v. Waterbury Police Union, supra, 406-407; see Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993). We agree with the plaintiff that if an application to confirm an arbitration award is not a civil action, then, by definition, it cannot be a separate civil action.

Furthermore, “[o]ur courts have wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . Courts favor arbitration as a means of settling differences . . . . [I]ts autonomy requires a minimum of judicial intrusion.” (Citation omitted; internal quotation marks omitted.) New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 386-87 n.8, 677 A.2d 1350 (1996). With this policy in mind, it must be emphasized that in the present case the parties reached an agreement, in the presence of the presiding judge, to arbitrate the issues and to present the award of the arbitrator to the court for judgment in the pending case. When the plaintiff attempted to confirm the arbitrator’s award in the pending action, pursuant to this agreement, he was instructed by the clerk’s office to take further steps regarding the filing of an order to show cause and a filing fee. Those further steps resulted in the assignment of a new docket number to the application to confirm the award. All of the proceedings in Das II involved the same parties, the same subject matter and the same claim by the plaintiff. Under all of the facts and circumstances of this case, not the least of which is the agreement of the parties to arbitrate the issues and to present the arbitration award to the court for judgment in accordance with the award, it would be a gross miscarriage of justice to hold that the judgment lien in Das II did not relate back to the prior attachment.

Finally, the defendant argues that, pursuant to General Statutes § 52-424, a plaintiff taking part in permissive arbitration is entitled to have judgment rendered on the arbitration award in the same civil action in which the reference to arbitration was made. According to the defendant, had the plaintiff filed his application to confirm the arbitration award pursuant to § 52-424, the application would have been accepted, and judgment would have been rendered in Das I. In that case, all of the plaintiffs prejudgment rights would have been preseived and capable of postjudgment perfection. The defendant argues, however, that since the plaintiffs original application was filed pursuant to General Statutes § 52-417 and Practice Book § 525, the application was rejected, and the plaintiff was instructed to take the additional steps regarding the order to show cause and the filing fee. According to the defendant, by proceeding pursuant to § 52-417, the plaintiff waived his right to have judgment rendered in Das I and, therefore, the judgment that was rendered in Das II did not preserve any of the plaintiffs prejudgment rights obtained in Das I.

There is no authority for the defendant’s contention, however, that the court or the clerk’s office would have treated the plaintiffs original application differently had it relied on § 52-424 rather than § 52-417 and Practice Book § 525. The plaintiff attempted to file the application to confirm the arbitration award in Das I, which was still pending at the time. The plaintiff was given instructions by the clerk’s office with regard to an order to show cause and a filing fee. The plaintiff followed the instructions from the clerk’s office, resulting in Das II. The plaintiff should not be penalized for following the instructions from the clerk’s office. Under these circumstances, we agree with the attorney trial referee that “the confirmation of the award under a different docket number must be treated as a proceeding ancillary to or at a minimum consolidated with the original civil action with the result that the judgment lien valid under the newly assigned docket number relates back to the attachment in the original action under [General Statutes] § 52-380a (b).”

II

The defendant next argues that the trial court improperly failed to correct the attorney trial referee’s findings of fact as requested by the defendant in several respects. We disagree.

The defendant first argues that the trial court improperly failed to correct the report of the attorney trial referee to add the fact that on December 10, 1993, Das I was dismissed pursuant to Practice Book § 251 (the dormancy program) and that this judgment of dismissal was not subsequently opened. The defendant further argues that the trial court should have added the fact that the clerk of the court, pursuant to General Statutes § 52-324, subsequently issued a certificate declaring said dismissal of the case and discharging the plaintiffs real estate attachment against the defendant’s property.

The fact that Das I was dismissed on December 10, 1993, and the fact that the attachment was subsequently discharged, however, does not affect the validity of the judgment lien, which was filed in June, 1993. Nor, as the plaintiff argues, do these facts affect the attorney trial referee’s conclusion that the proceeding to confirm the arbitration award in Das II was merely ancillary to the initial proceeding. “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 trial referee.” TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 45 Conn. App. 743, 750-51, 699 A.2d 173, cert. denied, 243 Conn. 908, 701 A.2d 338 (1997). The trial court, however, “cannot find additional facts or reject others unless a material fact has been found without evidence.” Id., 751. Because the arbitration award was properly confirmed on May 24, 1993, and the judgment lien was properly filed on June 2, 1993, prior to the December 10, 1993 dismissal of Das I, the trial court did not improperly fail to add these facts to the attorney trial referee’s report.

The defendant further argues that the trial court improperly failed to strike from the report of the attorney trial referee the fact that the Superior Court clerk’s office returned the May 4, 1993 application to the plaintiff with instructions that the application be served on the defendant with an order to show cause and a $150 filing fee. According to the defendant, no testimonial evidence was presented, and none of the documentary evidence submitted explained how or why the plaintiffs application to confirm was accepted as Das II rather than as a pleading in Das I.

The attorney trial referee had before him, however, the affidavit of Attorney Matthias J. DeAngelo. DeAngelo had represented the plaintiff in May, 1993. DeAngelo stated in his affidavit that on May 4, 1993, he prepared an application to confirm the arbitration award in the action that was pending between the parties, and that this application was mailed back to him from the clerk’s office with instructions that the application must first be served on the defendant with an order to show cause and returned with a $150 filing fee. DeAngelo further stated in the affidavit that accordingly, he prepared the second application dated May 11, 1993. The attorney trial referee, therefore, had sufficient evidence from which to make this finding of fact.

Ill

The defendant’s last argument is that the attorney trial referee improperly found that Rubinfeld, the defendant’s predecessor in interest, had transferred the attached property without notice to the plaintiff and in violation of the court’s restraining order in Das I.

In addition to finding that Rubinfeld had transferred the property without notice to the plaintiff, the attorney trial referee also found that “Ruth Rodgers, the defendant, in the foreclosure proceedings, acquired only such interest in Lot No. 25 as belonged to Rubinfeld at the time of her acquisition. This interest was then subject to the plaintiffs unreleased attachment of which she had notice on the land records of the town of Avon, Connecticut, and the records in the proceedings in the Superior Court which continued to judgment and the proper recording of the judgment hen within four months thereof.” As the plaintiff correctly points out, because Rodgers acquired title subject to the attachment, the transfer from Rubinfeld to Rodgers does not affect the plaintiffs right to foreclose the judgment lien. Because a resolution of whether Rubinfeld transferred the property to Rodgers without notice to the plaintiff and in violation of the restraining order will not affect the outcome of this case, we decline to address that issue.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       One of these five parcels, lot 25, is the property at issue in the present case.

       The attorney trial referee found that on December 4, 1990, while the arbitration proceedings were under way, Rubinfeld, without notice to the plaintiff and in violation of the court’s restraining order, quitclaimed lot 25, the subject of the present foreclosure action, to his wife, Gail Rubinfeld, who subsequently transferred lot 25 to her mother, Ruth Rodgers, the named defendant in the present action.

       General Statutes § 52-328 (b) provides: “No real estate that has been attached may be held subject to the attachment to respond to the judgment obtained in the suit, either against the debtor or any other creditor, unless the judgment creditor places a judgment lien on the real estate within four months after a final judgment.”

       General Statutes § 52-380a (b) provides in relevant part: “From the time of the recording of the judgment lien certificate, the money judgment shall be a lien on the judgment debtor’s interest in the real property described. If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment . . . .”

       General Statutes § 52-424 provides: “When the parties to any action pending in court desire to refer it to arbitration, each may choose one arbitrator and the court may appoint a third; and the award of such arbitrators, returned to and accepted by the court, shall be final, and judgment shall be rendered pursuant thereto and execution granted thereon with costs.”

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       Practice Book § 525 provides: “In proceedings brought for confirming, vacating or correcting an arbitration award under Gen. Stat, §§ 52-417, 52-418 or 52-419, the court or judge to whom the application is made shall cause to be issued a citation directing the adverse parly or parties in the arbitration proceeding to appear on a day certain and show cause, if any there be, why the application should not be granted.”

       We do note that “[t]he purposes of a citation and order to show cause are ordinarily to obtain personal jurisdiction over and give proper notice to a party. Where the parties are already in court regarding the arbitration proceeding, there is no vital need for a citation and order to show cause.” Shelby Mutual Ins. Co. v. Evans, 20 Conn. App. 1, 5, 563 A.2d 1041 (1989).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    MARVIN BEASLEY v. COMMISSIONER OF CORRECTION
    (AC 16381)
    Foti, Lavery and Healey, Js.
    Argued October 1
    officially released December 9, 1997

      Craig Lyle Perra, certified legal intern, with whom were Timothy H. Everett and, on the brief, Jason M. Lipsky, certified legal intern, for the appellant (petitioner).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

This is an appeal from the dismissal of an application for a writ of habeas corpus filed by the petitioner, Marvin Beasley. The petitioner was convicted of reckless manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), as a lesser included offense of murder, General Statutes § 53a-54a. On direct appeal, we affirmed the judgment of the trial court. State v. Beasley, 29 Conn. App. 452, 615 A.2d 1072 (1992). Following the habeas court’s dismissal of his petition, the petitioner filed a request for certification to appeal to this court, which was granted.

On appeal, the petitioner claims that he was denied effective assistance of counsel when his trial attorney failed to request lesser included offense instructions on second degree manslaughter and criminally negligent homicide. We affirm the judgment of the habeas court.

The habeas court determined that evidence presented at the trial showed that on the evening of May 9, 1989, at approximately 9 p.m. in the vicinity of 40 Crystal Avenue, a multifamily, low income, high rise apartment complex located in New London, the petitioner fatally shot David Stewart with a semiautomatic .45 caliber pistol. Earlier that day, the petitioner had obtained the pistol and bullets from a friend, Lewis Thomas, in anticipation of meeting the victim. Thomas had shown the petitioner how to use the pistol. The petitioner had been having difficulty with the victim, who had acted in a threatening manner toward him. The petitioner claimed that he wanted a meeting with the victim to resolve their dispute peacefully. He claimed that he brought the pistol with him for the purpose of scaring the victim should that become necessary. He stated that he “needed to scare him off.” He indicated that on one prior occasion he had seen a friend of his successfully intimidate the victim by gesturing toward him as though he had a pistol in his hand. He claimed he also wanted to scare the victim so that the victim would leave him alone if he could not convince the victim to do so through discussion. In his taped statement to the police, which was introduced as evidence during the criminal trial, the petitioner stated that when he arrived at the Crystal Avenue apartments, he first went into his mother’s apartment and then he loaded the pistol on the staircase before exiting the building. In his taped statement, the petitioner stated: “I picked up the gun and my friend came with me. And we go down to Crystal Avenue and we were standing outside. Then Dave [the victim] was out there again. He was riding on a bike. So he said, ‘You want to fight? Want to fight now?’ I said, ‘Dave just leave it alone.’ He said, ‘No.’ I said, ‘Then do whatever you want to do.’ And then he started to reach in his jacket. And then that’s when I got scared and I pulled out my gun and shot him. Then I ran.”

The petitioner fired seven rounds, five of which struck the victim. The victim was struck once in the back, twice in the buttocks, once in the back of his left upper leg and once through his left hand. In his taped statement, in response to a police officer’s question concerning what the victim did once the petitioner started to fire the pistol, the petitioner stated: “He was running. He ran, then I guess I hit him in the leg. That’s when he fell. ... I missed him a couple of times, and then I must have got him in the leg, then that’s when he fell. And the clip was empty.” Once the clip was empty, the petitioner ran and, while in flight, he dropped the first clip from the pistol and loaded a second clip. When asked why he loaded the second clip, he stated, “Because I didn’t know if Merrill Epps was still in the area and he was going to come after me or not.” The petitioner then threw the pistol in bushes by Winthrop School and proceeded to a pay telephone from which he called the New London police.

At the trial, the petitioner’s version of the events was somewhat different. He testified that when he saw the victim get off his bike and walk toward him, knowing that the victim’s friends were in the area, in order not to be trapped, he walked around so that no one would be behind him. He further testified that as the victim approached him, he asked the victim why, when the victim was by himself, he “never said nothing, but when his friends were around he would harass me?” He told the victim, “Just end it, you know, let it go.” He testified that the victim said, “My friends aren’t around now” and took off his coat and started walking toward the petitioner. The petitioner stated, “That’s when I knew it wasn’t going to end peacefully. So I had the gun and I fired twice down toward the ground.” At that point, the petitioner indicated, the victim was standing approximately eight feet from him.

Thomas testified at trial that while the petitioner and the victim were talking, they were “about five feet away.” Thomas also testified that there were other people in the area. He stated that “[t]here was like, you know, fifty, twenty-five people out there.” Thomas stated that, as the victim started walking toward the petitioner, “Marvin pulled out the gun and started shooting.” Rena Cook, who was with the victim, testified at the criminal trial that when the victim went to take off his jacket, “that’s when [the petitioner] pulled out the gun and started shooting.” She testified that after the initial shots “[m]e and [the victim] turned around and we started running, and then he shot like four or five more times. And I was asking everybody, did David get shot? And then that’s when I seen him on the ground. And I went across the street and stood over there.” In his trial testimony, the petitioner stated that after he fired the two shots toward the ground, the victim turned to run and the bullets “[c]ome constantly and repeatedly, and it has a lot of kick to it.” He stated that he was still trying to point the gun toward the ground but each time he fired, it “just kept going up.”

In essence, the petitioner claimed at trial that he never intended to hit the victim, that he was simply trying to scare him and that the victim was struck accidentally. He claimed that he was unfamiliar with this particular weapon and that he never had fired a pistol before. The petitioner also testified at trial that he fired the shots into the ground “[b]ecause I didn’t want to shoot him or shoot anybody in the area. That’s why I fired down toward the ground and not over here or over there. Because there were people all around.” The petitioner testified that the victim “ran into a dark area.” That the area of the shooting was dark was corroborated by police testimony.

At trial, the petitioner testified that he called the police to turn himself in because he thought that the police could help him prove that he did not actually mean to shoot the victim. Once the police had the petitioner in custody, he led them to the location where he had left the pistol. The pistol was found with a clip in it loaded with six bullets, in addition to one bullet in the firing chamber. At the criminal trial, Officer Kenneth Edwards of the New London police department testified that once in custody, the petitioner said “something to the effect of, T shot him cause he was going to get me.’ ”

The petitioner’s trial counsel, Richard Perry, testified at the habeas hearing. Perry, who at the time of the hearing had been an attorney for approximately fourteen years, was employed in the public defender’s office in New London. At the time of his representation of the petitioner, he served the court periodically as a special public defender. Perry stated that he did not file a request to charge on the lesser included offenses of manslaughter in the second degree or criminally negligent homicide because he did not feel that the evidence supported either charge. He based that determination on his own familiarity with weapons as a former police officer and on the facts that the petitioner was not familiar with weapons, that he utilized a .45 caliber semiautomatic pistol and that the pattern of bullet holes found in the victim demonstrated that there were five wounds, all within an area of approximately two feet. He testified to his belief that the petitioner’s version of the accident was not substantiated by the evidence before the jury. He believed that there was no evidence to support the claim of accident apart from the petitioner’s own testimony. Perry testified that, at the time of trial, he believed that his own credibility during argument would be significant for the jury, and he did not feel that he could credibly argue either criminally negligent homicide or manslaughter in the second degree. He also stated that he perceived a detriment to his client if he risked his credibility by arguing lesser included offenses that he thought were not supported by the evidence. He expressed a concern that if he argued too many lesser included offenses, he would risk losing the jury’s favorable consideration of the one lesser included offense, manslaughter in the first degree, on which he believed he could credibly present argument to the jury. As to manslaughter in the second degree, he testified that he did not feel that he could credibly argue that the petitioner had not acted under circumstances evincing an extreme indifference to human life, an element that distinguishes manslaughter in the first degree from manslaughter in the second degree. Aside from those reasons, Perry also testified that he did not believe the evidence would have supported a legal entitlement to a jury charge on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide.

At the habeas hearing, attorney Jon Schoenhom testified as an expert in criminal law in support of the petition. Schoenhom, whom the court found to be an experienced criminal defense attorney, knowledgeable in Connecticut criminal law and procedure, offered his opinion that the petitioner was indeed entitled to have the jury charged on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide. Schoenhom further testified that no reasonable attorney would have failed to ask the court to charge the jury on these lesser included offenses. He noted that, as a norm, a reasonably pmdent defense attorney would decline to request a charge on lesser included offenses only in a case in which the defendant claims noninvolvement and where the availability of lesser included offenses might lead to a compromise verdict, thus decreasing the potential for an outright acquittal. It was Schoenhorn’s view that the facts of the allegations against the petitioner and his admitted involvement as the shooter did not present such a situation. Finally, Schoenhom disagreed with Perry concerning the issue of credibility during argument. Schoenhom testified that counsel is not required to articulate an argument for each offense on which the jury has been charged. It was Schoenhom’s view that the mere availability of a lesser included offense before a juiy could facilitate a verdict on the lesser offense where there is jury debate during deliberations on the defendant’s degree of culpability.

In dismissing the petition, the habeas court found that it was reasonable for trial counsel not to have requested additional lesser included charges on manslaughter in the second degree and negligent homicide. The habeas court concluded that the decision was not based on a mistaken belief that the petitioner was not entitled to the charges on the lesser included offenses, but rather on counsel’s belief that he would be more credible in arguing a lesser included offense of manslaughter in the first degree and that he would be less credible in arguing the charges of manslaughter in the second degree or negligent homicide, while preserving the possibility of a guilty verdict on the lesser charge of manslaughter in the first degree. The habeas court also determined that the petitioner had not shown that he was prejudiced by his trial counsel’s failure to make such a request, noting that the evidence was overwhelming that the petitioner had shot the victim under circumstances evincing an extreme indifference to human life, a required element of manslaughter in the first degree. The habeas court concluded, therefore, that the possibility of a conviction, under the circumstances shown, of either manslaughter in the second degree or negligent homicide, was not a sufficient probability to have undermined confidence in the jury’s verdict.

The petitioner claims that he was denied his constitutional right to effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice. . . . Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992).

“In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial. Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); see also Strickland v. Washington, [supra, 466 U.S. 687]. A reviewing court can find against the petitioner on whichever ground is easier. Valeriano v. Bronson, supra [85-86]; Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).” (Internal quotation marks omitted.) Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990).

We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). The habeas court judge, as trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378 (1993), on appeal after remand, 234 Conn. 139, 662 A.2d 718 (1995).

The habeas court concluded that the petitioner was not deprived of effective assistance of counsel because his trial counsel’s decision not to request the instructions as to the additional lesser included offenses was reasonable. We agree.

While the petitioner may have been entitled to those two lesser included offense instructions, his counsel’s failure to request them does not, under the circumstances present, necessarily deprive him, as a defendant in a criminal matter, of effective assistance of counsel. See Fair v. Warden, 211 Conn. 398, 404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).

The habeas court found trial counsel's testimony credible as to his reason for not requesting the lesser included offense instructions; specifically, to argue the applicability of those lesser offenses would have jeopardized his argument that the petitioner was not guilty of murder. We agree, as the habeas court concluded, that the evidence was overwhelming that Beasley shot the victim under circumstances evincing an extreme indifference to human life. Manslaughter in the first degree, the lesser included charge to murder, of which the petitioner was convicted, requires the jury to find that the petitioner acted “under circumstances evincing an extreme indifference to human life” and that he “recklessly [engaged] in conduct which [created] a grave risk of death to another person . . . .” General Statutes § 53a-55 (a) (3). Conversely, manslaughter in the second degree, as a lesser included charge to murder, does not require that the reckless conduct have occurred under circumstances evincing an extreme indifference to human life.

In reviewing a claim of ineffective assistance of trial counsel, we indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; it is the petitioner’s burden to overcome the presumption that his attorney’s actions or inactions were not, in fact, sound trial strategy. See Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985); Larkin v. Commissioner of Correction, 45 Conn. App. 809, 818, 699 A.2d 207 (1997). We also must make every effort to evaluate the challenged conduct from the counsel’s perspective at the time. Magnotti v. Meachum, supra, 22 Conn. App. 674-75.

Guilt or innocence was not the issue at the petitioner’s trial. There was no question that the petitioner caused the death of the victim by shooting him. The sole issue was whether the petitioner’s actions, in firing seven shots in a crowded area and hitting the victim five times, constituted murder or whether the petitioner’s reckless actions under circumstances evincing an extreme indifference to human life made him guilty of manslaughter in the first degree.

What constitutes effective assistance of counsel cannot be determined with yardstick precision, but necessarily varies according to the unique circumstances of each representation. Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 219, 650 A.2d 602 (1994). The habeas court may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel’s perspective at the time of the trial. In doing exactly this, the habeas court concluded that Perry’s conduct fell within the range of reasonable professional assistance and, therefore, the petitioner had failed to demonstrate that he received ineffective assistance of counsel. We conclude that the petitioner did not overcome the presumption that under the circumstances, his counsel’s decision not to request further lesser included offense charges was sound trial strategy. See Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992); Hull v. Warden, 32 Conn. App. 170, 175, 628 A.2d 32, cert. denied, 227 Conn. 920, 632 A.2d 691 (1993).

After a careful review of the record and transcripts, we agree with the habeas court that the performance of the petitioner’s trial counsel, in not requesting instructions on the lesser included offenses of manslaughter in the second degree or negligent homicide, did not fall below the standard of reasonable competence. Having so concluded, we find it unnecessary to determine whether the habeas court properly dismissed the petitioner’s writ on the basis of the petitioner’s failure to establish prejudice. See Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991) (reviewing court can find against petitioner on either prong of Strickland); see also Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989); Nardini v. Manson, supra, 207 Conn. 124; Harris v. Commissioner of Correction, 40 Conn. App. 250, 256-57, 671 A.2d 359 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       On direct appeal to this court, the petitioner’s sole claim involved an abuse of discretion in his sentencing.

       Because our opinion on the direct appeal, State v. Beasley, supra, 29 Conn. App. 452, does not set forth the facts that the jury reasonably could have found, we use the habeas court’s determinations, as set forth in its memorandum of decision, for that purpose.

       The parties stipulated, and the habeas court found, that the petitioner would have been entitled to a jury charge on manslaughter in the second degree, General Statutes § 53a-56, had a proper request been made to the trial court. While not persuaded that the petitioner would have been entitled, as a matter of law, to a jury instruction on criminally negligent homicide, the habeas court assumed, arguendo, that one would have been given if requested.

       “[T]o show prejudice, the petitioner must establish that there exists a reasonable probability that the result of the trial would have been different but for counsel’s ineffective assistance. Levine v. Manson, [supra, 195 Conn. 640]. A reasonable probability is a probability sufficient to undermine confidence in the verdict. Bunkley v. Commissioner of Correction, [supra, 222 Conn. 454].” Dontigney v. Commissioner of Correction, 42 Conn. App. 304, 305, 679 A.2d 55, cert. denied, 239 Conn. 918, 682 A.2d 999 (1996).


author: DALY, J.

text:
    F. B. MATTSON COMPANY, INC. v. CONRAD TARTE ET AL.
    (AC 16993)
    (AC 17049)
    O’Connell, C. J., and Landau and Daly, Js.
    Argued September 23
    officially released December 9, 1997

      Robert P. Hanahan, for the appellants (named defendant et al.).

      Stephen R. Griffin, for the appellant (defendant Great Western Bank).

      Thomas A. Kaelin, for the appellee (plaintiff).
   Opinion

DALY, J.

The defendants, Conrad Tarte, Commercial Investments International, Inc. (Commercial Investments), and Great Western Bank, appeal from the judgment of strict foreclosure of a mechanic’s lien in favor of the plaintiff, F. B. Mattson Company, Inc. (Mattson). The defendants claim that the trial court improperly rendered judgment in favor of Mattson in violation of General Statutes § 49-34. We agree and reverse the judgment of the trial court.

The trial court found the following facts. In the spring of 1995, Mattson, a corporation licensed as a general contractor under Connecticut law, entered into a written agreement with Commercial Investments to undertake renovations of property owned by Commercial Investments, located at 161 Hillside Avenue, Waterbury. Tarte was the president and one-third owner of Commercial Investments. The property, which is located in a historic district, includes a mansion and carriage house that were constructed in the late 1880s. The principal part of the work to be performed under the contract was the replacement of the mansion’s deteriorated copper roof. Mattson began the work in April, 1995, and completed it in early October of that year. By that time, Commercial Investments had fallen behind in payments due under the contract. On October 10, 1995, Mattson stopped working on the property, leaving the scaffolding and roof brackets in place. At the request of Tarte, who took title to the property in October, 1995, two Mattson employees returned to the property on November 10, 1995, and worked the entire day removing the scaffolding and roof brackets. Mattson performed no further work on the premises. On January 25, 1996, Mattson recorded a certificate of mechanic’s lien against the property claiming a balance due of $83,723.29. The certificate stated that Mattson ceased furnishing services and materials to the property on November 10, 1995.

The trial court held that where work is done at the request of the owner, the statutory period for filing a mechanic’s lien under § 49-34 is calculated from the date the requested work is performed. Accordingly, the trial court concluded that, under the facts of this case, the ninety day period for filing the mechanic’s lien ran from November 10, 1995, and Mattson’s lien, filed on January 25, 1996, was timely.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.” (Citation omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). With those principles in mind, we now turn to the defendants’ single claim on appeal.

The issue raised by the defendants in this appeal is whether the trial court properly determined that Matt-son timely filed the certificate of mechanic’s hen even though the court found that the work was substantially complete on October 3, 1995. The defendants claim that the ninety day period for filing the certificate of mechanic’s hen began to ran on October 3, 1995, because that was the date the plaintiff ceased to work on the property. Mattson argues that the last work performed on the property was November 10, 1995, and that the ninety day period began to run as of that date.

“In Connecticut, a mechanic’s lien is a creature of statute and establishes a right of action where none existed at common law. Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 99 Conn. 396, 403, 122 A. 102 (1923). It is the general rule that where a statute creates a right of action that did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone.” H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 429, 601 A.2d 1040 (1992).

“To determine whether the trial court erred in its conclusion that the hen in this case was valid, it is necessary to apply to the facts the principles set forth in [Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., supra, 99 Conn. 396], where the work is substantially completed and the delay in final completion is unreasonable and the balance of the work is trivial, the time to file the lien is not extended.” Backros, Inc. v. Davies, 2 Conn. Cir. Ct. 365, 367-68, 199 A.2d 349 (1963).

In Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., supra, 99 Conn. 396, the defendant contested the validity of the petitioner’s lien, contending that the contract for construction was substantially complete on March 9, 1921, and that the petitioner filed its lien beyond the statutory filing period as calculated therefrom. The petitioner filed its certificate of mechanic’s lien on May 23, 1921, stating that it ceased furnishing materials and rendering services on April 6, 1921. The facts revealed that no material was furnished after March 9, 1921, and that the only labor furnished was that of a carpenter on March 15, 1921, and that of the petitioner’s superintendent of construction. The superintendent “was employed up to and including April 6th, 1921, in cleaning up and making alterations and getting petitioner’s equipment in condition for removal and removing it from the job, as required by the contract.” (Internal quotation marks omitted.) Id., 402. The court determined that the period for filing the lien began to run from April 6, 1921. The court, assuming that March 9, 1921, was the date of substantial completion, held that there was no delay in finishing the contract and that the work done and services rendered after March 9, 1921, were not trivial. The court found persuasive the fact that the work performed by the superintendent was continuous through April 6 and was “a necessary part of the construction of the building.” Id., 403.

In support of its position that Tarte’s request extended the period for filing the lien, the plaintiff herein relies on the statement in Marlin Tire & Rubber Co. that “trivial work done or material furnished will be sufficient to extend the time for filing the lien if done at the request of the owner, and not for the mere purpose of saving his lien.” Id., 400, citing Nichols v. Culver, 51 Conn. 177 (1883). In Nichols, however, the work done at the request of the owner was “final work upon the house, such as making a frame for an inside cellar door, putting glass into the cellar windows, putting up clothes hooks, brackets and a shelf.” Nichols v. Culver, supra, 183.

In the present case, the work performed on November 10, 1995, at Tarte’s request, was not the type of work contemplated by Nichols v. Culver, supra, 51 Conn. 177. Mattson was obligated to remove the scaffolding, roof brackets and equipment at the completion of its contract and the defendant owner merely requested that it do so. Thus, Tarte’s request did not extend the period for filing the lien. We acknowledge, however, that the delay in removing the equipment was not unreasonable, as it was due to the expectation that the parties might contract for additional painting work. Nevertheless, the task of removal was trivial, entailing the services of a carpenter and an apprentice for only one day. Unlike in Martin Tire & Rubber Co., the work performed in this case was not continuous and involved the work necessary only to remove Mattson’s equipment. “We should not upon this record be able to hold that the preparation for removal and the removal of the petitioner’s equipment from this building was the rendition of such service as would warrant the filing of a mechanic’s hen or fix the date of the running of the hen.” (Emphasis added.) Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., supra, 99 Conn. 403.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       While there are three counts in the plaintiffs complaint, the trial court bifurcated the counts and proceeded to trial on the first count only. A judgment of foreclosure of the mechanic’s lien was entered on the first count of the complaint on March 3, 1997. On March 14, 1997, this court granted the defendants’ motion for permission to appeal from the judgment pursuant to Practice Book § 4002C. Thereafter, the defendants filed appeals. On June 2, 1997, this court granted the defendants’ motion to consolidate the appeals only for purposes of oral argument and preparation of a single record.

       General Statutes § 49-34 provides in relevant part: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk ... a certificate in writing . . . .”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ANTHONY OLIPHANT
    (AC 15393)
    O’Connell, C. J., and Lavery and Schaller, Js.
    Argued September 16
    officially released December 9, 1997

      PaulR. Kraus, special public defender, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of larceny in the first degree in violation of General Statutes § 53U-122. On appeal, the defendant claims that the trial court improperly (1) failed to conduct an adequate canvass of the defendant prior to accepting his waiver of the right to counsel, (2) denied the defendant the effective assistance of standby counsel, and (3) concluded that the evidence presented at trial was sufficient to prove the defendant’s guilt beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, Anthony Oliphant, was the recipient of welfare assistance payments from the city of Hartford from May 10 through September 30, 1993. He was then declared ineligible because he failed to submit a case plan setting forth his specific needs, such as job training or substance abuse treatment. He later reapplied for benefits from Hartford, and his application was granted. He resumed receiving benefits from November 25, 1993, through June 30, 1994.

In July, 1993, the defendant applied for welfare benefits from the city of Meriden under the alias of Jerome Martin without informing the welfare office that he was simultaneously receiving benefits from Hartford under the name of Anthony Oliphant. The defendant provided documents that supported his application in the name of Jerome Martin. As a result, the defendant received welfare benefits from Meiiden from July 23, 1993, through December 27, 1994. The defendant, therefore, received duplicate welfare benefits from Hartford and Meriden for two separate time periods: July 23 to September 30, 1993, and November 25, 1993, to June 30, 1994. The defendant received total benefits from Meriden in the amount of $5518.46, which formed the basis of the larceny charge.

At the defendant’s arraignment, a public defender, Michael Moscowitz, was appointed to represent him at trial. Moscowitz had represented the defendant in two prior proceedings. On the first day of jury selection, the defendant expressed dissatisfaction with Moscowitz and requested a different public defender. The trial court denied that request. The defendant then expressed his desire to represent himself in this matter. The trial court then proceeded to question the defendant as to his understanding of the implications of his waiver of counsel pursuant to Practice Book § 961.

I

The defendant first claims that his canvass by the trial court regarding his waiver of the right to counsel on the eve of trial was insufficient pursuant to Practice Book § 961. A criminal defendant’s right to counsel is a fundamental right guaranteed by both our federal and state constitutions. See Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984). In addition, a criminal defendant enjoys the constitutional right to self-representation at trial, provided he knowingly and intelligently waives the right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also State v. Gethers, supra, 533, citing Lyles v. Estelle, 658 F.2d 1015, 1020 (5th Cir. 1981); see generally annot., 98 A.L.R.3d 13 (1980). The court in Faretta articulated the standard in the following manner: “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Faretta v. California, supra, 835; see also Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

Practice Book § 961 sets forth the criteria that must guide the trial court in ascertaining whether the waiver of counsel is made properly by the defendant. Section 961 “ ‘was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself . . . ” State v. Townsend, 211 Conn. 215, 219, 558 A.2d 669 (1989), quoting State v. Gethers, supra, 193 Conn. 532. “Some of the factors bearing on the defendant’s capacity include age, education, mental health, prior experience with criminal trials and consultation with counsel prior to proceeding pro se, although none of these inquiries is a constitutional necessity. 2 W. LaFave & J. Israel, [Criminal Procedure (1984) § 11.5 (c)], p. 46. However, a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation .... Faretta v. California, supra, [422 U.S. 835]. Rather a record that affirmatively shows that [he] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will sufficiently supports a waiver. Id.; [State v. Gethers, supra, 536].” (Internal quotation marks omitted.) State v. Townsend, supra, 221.

In this case, the defendant stated clearly on the record that he did not want to proceed with the public defender appointed by the court. Knowing that the court would not appoint another public defender, he preferred to represent himself. The trial court then questioned the defendant to ensure that he understood the consequences of his decision to waive his right to counsel. The trial court informed the defendant of the potential exposure that he faced in terms of imprisonment. The court also expressed, on the record, its reluctance to allow the defendant to proceed pro se in this matter, unless convinced that this was clearly what the defendant desired. The trial court then questioned the defendant further and, as a result, was satisfied that the defendant clearly wanted to proceed pro se.

While a review of the trial court’s canvass may indicate that the defendant may have preferred to have a public defender other than Moscowitz, our law is clear that a criminal defendant does not have the right to have the public defender of his choice. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); State v. Nash, 149 Conn. 655, 663, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). In addition, our Supreme Court stated that the mere fact that the defendant would have preferred to retain private counsel of his choice, could he have afforded such counsel, does not make the waiver of a court-appointed attorney involuntary. State v. Day, 233 Conn. 813, 830, 661 A.2d 539 (1995). As long as the defendant clearly and unequivocally indicates that he wants to proceed pro se instead of proceeding with the public defender appointed for him, his waiver of counsel is knowing and voluntary. Id., 829. In this case, the defendant made it clear that he did not want to proceed with Moscowitz and understood that a rejection of Moscowitz meant that he would be proceeding pro se. Therefore, the mere fact that he would have preferred to proceed with another attorney is irrelevant to whether the § 961 waiver of counsel was proper.

With respect to the defendant’s intelligence and capacity to understand the consequences of his choice, the record reveals that the trial court was familiar with the defendant because, as the defendant himself stated on the record, the trial judge had presided over proceedings involving the defendant on two previous occasions. The trial court, therefore, possessed knowledge of the defendant’s intelligence and capacity to understand the proceedings even prior to conducting the § 961 canvass of the defendant. See State v. Siano, 20 Conn. App. 369, 375, 567 A.2d 1231 (1989), aff'd, 216 Conn. 273, 579 A.2d 79 (1990) (court may take judicial notice of facts available to trial court at time of trial). The record reveals that the defendant was familiar with legal proceedings generally and trial tactics specifically. In fact, immediately after the trial court’s canvass, the defendant filed several pretrial motions with the court, demonstrating his familiarity with legal procedures and practices. As a result, the trial court was properly satisfied that the defendant’s waiver of counsel was knowing and intelligent in conformity with § 961.

In State v. Gethers, supra, 193 Conn. 526, our Supreme Court noted that once there is a reasonable basis to believe that the requirements of § 961 have been satisfied, the failure to question the defendant formally concerning each particular element in § 961 is not fatal. “Although a more formal inquiry involving specific consideration of each element of the rule is preferable, our principal concern is not form but substance. Even if there had been an omission, the constitutional right of the defendant to defend himself could not have been denied unless it were shown that his waiver of counsel was involuntary or uninformed.” Id., 539.

We conclude that the defendant’s responses to the trial court’s questions during the canvass, under the circumstances of this case, were sufficient to satisfy the requirements of § 961. As a result, the trial court properly found that the defendant’s waiver of counsel was knowingly and intelligently made.

II

The defendant next claims that the trial court denied him the right to the effective assistance of standby counsel and abused its discretion by denying his motion for a mistrial. In support of this claim, the defendant makes two assertions: (1) Practice Book §§ 962 through 964 unconstitutionally limit the role of standby counsel, and (2) the performance of standby counsel in this case was ineffective.

We begin our analysis with the proposition that a defendant does not have a state or federal constitutional right to standby counsel. See State v. Gethers, 197 Conn. 369, 385-87, 497 A.2d 408 (1985). Once a defendant has properly embarked on the path of self-representation, his constitutional right to counsel ceases. State v. Day, supra, 233 Conn. 821. The defendant’s claim that he was denied the effective assistance of counsel is without merit because after deciding to proceed pro se, he had no constitutional right to the effective assistance of counsel in any capacity. The language and application of Practice Book §§ 962 through 964 are based on United States Supreme Court precedent and, accordingly, meet constitutional standards. See McKaskle v. Wiggins, 465 U.S. 168, 177-79, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); Faretta v. California, supra, 422 U.S. 806.

In addition, the usual context in which standby counsel has abridged a defendant’s right to conduct the trial occurs when standby counsel is overly zealous and interferes with the defendant’s ability to conduct his trial. See McKaskle v. Wiggins, supra, 465 U.S. 168. In this case, there is no evidence that standby counsel unduly interfered with the defendant’s ability to conduct his trial. In addition, the defendant relied on Moscowitz at several points during the trial regarding the admissibility of evidence and trial tactics. There is no merit to the defendant’s claim that standby counsel was ineffective in this case.

Ill

The defendant finally claims that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. Specifically, the defendant claims that there was insufficient evidence to prove the statutory requirement of the defendant’s intent to deprive Meriden permanently of welfare benefits. He claims that because he informed Meriden, after the receipt of certain benefits, that he was in fact Anthony Oliphant, and not Jerome Martin as he had claimed, he lacked the specific intent to deprive Meriden permanently of welfare benefits received thereafter.

“When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, [supra, 31]; State v. Rivera, supra [200-201],

“It is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. ... It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Reddick, 33 Conn. App. 311, 332-33, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994); State v. Ketchum, 45 Conn. App. 270, 280-81, 696 A.2d 987, cert. denied, 242 Conn. 910, 697 A.2d 368 (1997).

While the defendant claims that he disclosed to Meriden welfare officials that he was actually Anthony Oliphant and not Jerome Martin as he had claimed, there was testimony at trial to the contrary. This testimony revealed that the defendant consistently referred to himself as Jerome Martin and never corrected Meriden officials when they referred to him as Jerome Martin. The jury apparently credited this testimony and did not find the defendant’s claim to the contrary credible. We cannot disturb this finding as clearly erroneous under the circumstances. Therefore, the defendant’s claim that there was insufficient evidence to prove his guilt beyond a reasonable doubt is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and . . . (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.”
      The relevant portions of General Statutes § 53a-119 provide: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . . (6) Defrauding of public communüy. A person is guilty of defrauding a public community who (A) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (B) knowingly accepts the benefits from a claim he knows is false . . . .”

       The following excerpt from the trial transcript reveals the extent of the trial court’s canvass of the defendant.
      “Mr. Moscowitz: Good afternoon, Your Honor. Your Honor, I would only indicate that I did have an opportunity to speak to Mr. Oliphant. Mr. Oliphant did represent to me that he does wish to represent himself. I did indicate to him that that is an option. I did indicate to him that I would be standby counsel. In light of that, I did also discuss with Mr. Oliphant possibly requiring a § 54-56d to determine Mr. Oliphant’s competency. The only reason I move for that approach is because I don’t know whether Mr. Oliphant appreciates this situation. His exposure in this matter being the fact that it is a larceny one is twenty years. He is already doing a sentence of fifteen months. He could, right now, have an exposure of twenty-one years and three months, which is an extensive period of incarceration, and I am not quite sure whether Mr. Oliphant appreciates this situation in light of what has transpired. For that reason, I am asking the court to consider a § 54-56d, even though my discussions with Mr. Oliphant indicate that he objects to that.
      “The Court: Well, all right, let me address the issue of representation. I do not want Mr. Oliphant to represent himself. However, if you insist that you want to do that, Mr. Oliphant, if you feel competent to do that, I’ll defer to your wish and I will allow you to do that.
      “Mr. Oliphant: Well—
      “The Court: Let me just finish. Let me finish, please. You have a habit of interrupting, and I don’t want you to do that. I don’t want you to do that because I don’t think it is in your best interest that you represent yourself. But in any event, if I allow it, and I’ll hear you in just a moment. If I allow it, Mr. Moscowitz is going to remain in attendance should you need his counsel and advice. You don’t have to seek it. You don’t have to ask him any questions. But if you feel the need to do that, he’ll be here under any circumstance available for that purpose. Now what do you have to say about representing yourself?
      “Mr. Oliphant: I have no alternative, Your Honor. I asked that Mr. Moscowitz be removed from the last trial I had due to his ineffectiveness. If I can’t have someone who [is] going to be effective for me, what choice do I have?
      “The Court: Well, I am satisfied that Mr. Moscowitz provided you with effective assistance. He is going to remain as your attorney on this case. There is no issue as to that.
      “Mr. Oliphant: Can I represent myself? You say you are satisfied. But that is not the question. I am not satisfied.
      “The Court: No, no, I make the decision.
      “Mr. Oliphant: You make the decisions, but I am not satisfied, sir. I am not satisfied.
      “The Court: I am sitting up here and I make the decisions, and my decision is that Mr. Moscowitz will continue as your counsel. If not primarily so, then as in assistance to you if you are allowed to represent yourself. Do you still wish to represent yourself under those circumstances?
      “Mr. Oliphant: Yes, Your Honor. Under those circumstances, I wish to represent myself. And with all due respect, Your Honor, I ask that you remove yourself from my case.
      “The Court: Well, that motion is denied. Now, on the next, let me just understand one thing for sure now Mr. Oliphant. Mr. Moscowitz, in his remarks, referred to the exposure which you face in this matter. As I understand it, you are charged with larceny in the first degree. That is a class B felony, and exposes you to maximum penalties of up to twenty years, plus substantial fines.
      “Mr. Oliphant: I understand that, Your Honor.
      “The Court: I don’t want you to proceed representing yourself unless you are convinced that is what you want to do notwithstanding this exposure.
      “Mr. Oliphant: The only thing I am convinced of, Your Honor, to address your question, is that I seek to be weighed in an even balance, sir. That is all I seek is to be weighed in an even balance. And God may release my— nobody else does, you know. And I am not getting that from this court, Your Honor. This is the third trial with you, starting with a housing court issue, which you found against me. And the second time with the misdemeanor case, which you again found against me. And the third time, and you know, the ante still keeps going up for me. And I am still getting hit off every time, you know. I had ineffective counsel both times.
      “The Court: Well, that issue is moot because Mr. Moscowitz, as I said, afforded you independent counsel.
      “Mr. Oliphant: Yeah, it’s moot all right.
      “The Court: And afforded you effective counsel and support throughout the trial that you refer to. And he will continue as your counsel in this case. At least to assist you as you deem necessary. So I am going to grant your request and allow you to represent yourself until such time as you indicate that you want Mr. Moscowitz to take over the defense, if that time comes. All right. Now, what about the motion for a competency examination. What do you say to that Mr. Oliphant?
      “Mr. Oliphant: I waive it, Your Honor.
      “The Court: Pardon me?
      “Mr. Oliphant: I waive it.
      “The Court: You waive it? What does that mean?
      “Mr. Oliphant: No.
      “The Court: You don’t want it?
      “Mr. Oliphant: Thank you.
      “The Court: You feel yourself competent?
      “Mr. Oliphant: I’m standing here aren’t I?
      “The Court: Well do you understand the nature of the proceedings against you?
      “Mr. Oliphant: Oh, Your Honor, how well do I understand. I ain’t hanging up yet.
      “The Court: All right. And you feel that you can present your defense individually and, if need be, with whatever help you might seek from Mr. Moscowitz?
      “Mr. Oliphant: No, I don’t.
      “The Court: You don’t feel you can represent yourself?
      “Mr. Oliphant: Not with him, no.
      “The Court: Well he is going to stay here to assist you if you need it. If you don’t need him or want him—
      “Mr. Oliphant: Why him, Your Honor?
      “The Court: It’s up to you. If you don’t want to use Mr. Moscowitz in any capacity, he will just remain in attendance.
      “Mr. Oliphant: I have been seeking from this trial, from the beginning of this trial and the beginning of the last trial, to have him removed, Your Honor—
      “The Court: The motion to disqualify Mr. Moscowitz is denied and I don’t want to hear any more about it. Now we’re on the question of your competency examination, as I understand your position, you object to any such examination, is that so?
      “Mr. Oliphant: I don’t know how to answer your question, Your Honor, without being in contempt it seems like.
      “The Court: Well, do you feel you are competent to carry on your own defense?

        “Mr. Oliphant: I just explained that, Your Honor. Not with this man here, no sir.
      “The Court: Well, then you just don’t use Mr. Moscowitz then, if that is the way you feel.
      “Mr. Oliphant: Well, who am I going to use then, Your Honor? I am not an attorney, Your Honor.
      “The Court: You are not picking your public defender, Mr. Oliphant.
      “Mr. Oliphant: I am not trying to pick my public defender.
      “The Court: Well, you’re not going to.
      “Mr. Oliphant: I am asking for qualified legal counsel, that is all I am asking.
      “The Court: Well you are not going to. You have Mr. Moscowitz who will remain.
      “Mr. Oliphant: That’s all I am asking for, as a right.
      “The Court: The motion for a competency examination is denied. I think Mr. Oliphant is quite competent ... to stand trial.”

       It should be noted that, in his brief, the defendant argues that the trial court improperly failed to establish his competency in two respects: (1) competency to waive his right to counsel pursuant to Practice Book § 961, and (2) competency to stand trial pursuant to General Statutes § 54-56d. Because there is a presumption in favor of competency to stand trial and no specific evidence was advanced that supported the defendant’s incompetency to stand trial pursuant to § 54-56d, we decline to review this claim. In addition, the defendant waived this issue at oral argument.

       Practice Book § 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      ‘‘(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       The trial court stated in its memorandum of decision concerning the defendant’s motion for allocution of sentencing that it had “presided at a misdemeanor criminal trial and an eviction proceeding, both involving the defendant,” on prior dates during the term.

       Practice Book § 962 provides: “-Standby Counsel for Defendant Representing Himself”
      Practice Book § 963 provides: “--Appointment
      “When a defendant has been permitted to proceed without the assistance of counsel, the judicial authority may appoint standby counsel, especially in cases expected to be long or complicated or in which there are multiple defendants. A public defender or special public defender may be appointed as standby counsel only if the defendant is indigent and qualifies for appointment of counsel under Gen. Stat. § 51-296, except that in extraordinary circumstances the judicial authority, in its discretion, may appoint a special public defender for a defendant who is not indigent.”
      Practice Book § 964 provides: “--Role
      “If requested to do so by the defendant, the standby counsel shall advise the defendant as to legal and procedural matters. If there is no objection by the defendant, such counsel may also call the judicial authority’s attention to matters favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.”

       The defendant points to one occurrence during the trial that he claims produced confusion regarding the role of standby counsel. This matter, however, was promptly resolved by the trial court. The following colloquy occurred immediately after standby counsel and the defendant made a confusing set of alternative objections regarding the admissibility of evidence.
      “The Court: I think there is a feeling that an objection should be made by you Mr. Moscowitz. Can you indicate that to Mr. Oliphant? If you need some time to do that, I’ll allow it, but I think this business of both of you hopping up and making the same objection, citing the same grounds that have already been ruled upon is highly improper, not consistent with the rules, and I don’t want it to happen.

        “Mr. Moscowitz: Your Honor, the court has made a suggestion that seems like a very good procedure, whereby I pass it on to Mr. Oliphant. Your Honor, just to prevent any if I want to, what I need is a technicality as to how I am going to do that. I would like to pass it on to Mr. Oliphant, but how do I do it in stopping the state from going on any further. Should I just indicate objection, or will the court wait?
      “The Court: Well, when an offer is made, clearly, you need to confer with your client. Ask the court and I will allow you to do that.
      “Mr. Moscowitz: And I appreciate that suggestion. It has been a little difficult for me to figure out what to do in that situation. Would the court just give me a minute to speak to Mr. Oliphant, would that be sufficient?
      “The Court: Please don’t take up the court’s time with respect to what I have already ruled on.
      “Mr. Moscowitz: No, no, no. I just want to know, in the future, because I know, I don’t mean to anger the court on behalf of either Mr. Oliphant or myself, but I’m having a little problem with the technicality of relating this to Mr. Oliphant.
      “The Court: Well, I understand and I have tried to be lenient about it.
      “Mr. Moscowitz: And the court has.
      “The Court: But I can’t, I just can’t allow both of you to argue about the same issue, almost simultaneously. To answer your question, yes, you may confer with Mr. Oliphant right here and now, if you wish.
      “Mr. Moscowitz: I don’t need to do it now, but in the future if it arises, could I just ask the court if it would give me a moment to talk to Mr. Oliphant?
      “The Court: You may certainly do that. And I am quite sure I will allow that.”