author: SCHALLER, J.

text:
    MARIE CLAIRE FRANCE MARTIN v. FRANCIS WALTER MARTIN
    (AC 27514)
    Flynn, C. J., and Schaller and Hennessy, Js.

      Argued January 3
    officially released May 8, 2007

      Kevin B. F. Emerson, for the appellant (defendant).

      Jean M. Stawicki, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

In this marital dissolution action, the defendant, Francis Walter Martin, appeals from the judgment of the trial court with respect to the court’s financial orders. Specifically, the defendant claims that the court abused its discretion by (1) awarding the plaintiff, Marie Claire France Martin, 100 percent of the equity in the former marital residence, (2) awarding the plaintiff 100 percent of the equity in the residence as an offset against an award of alimony on the basis of erroneous findings, (3) valuing the residence as of the date of the parties’ separation instead of the date of dissolution and (4) valuing the residence without any appraisal or expert testimony. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties were married on August 8, 1987, in Quebec, Canada. Although the parties did not have any issue of the marriage, for a period of time the plaintiffs children from a prior relationship resided with the parties. The defendant, a former Connecticut state police trooper, had received two disability pensions (pensions) since 1981, prior to his marriage to the plaintiff. The parties stipulated that, as of November 30, 2005, the value of the defendant’s pensions was $363,000.

In 1998, the parties purchased a condominium located at 64 Highland Circle (residence) in Colchester. The purchase price for the residence was $147,900, and the parties financed $133,100. The defendant, with the help of the plaintiff, made numerous improvements to the residence. The parties stipulated that, as of November 30, 2005, the value of the residence was $272,500, subject to a mortgage of approximately $99,723.77, resulting in equity in the amount of $172,777. The defendant moved out of the residence in December, 2003, and did not contribute to the mortgage, the plaintiffs living expenses or the expenses associated with the residence.

The plaintiff commenced the dissolution action on February 4, 2004. After a one day trial, the court issued its memorandum of decision on December 20, 2005. The court found that the marriage had broken down irretrievably without hope of reconciliation, with the defendant having been more at fault for the breakdown. After considering the pertinent statutory factors, the court dissolved the marriage and issued various financial orders. Specifically, the court ordered that the “defendant shall quitclaim any interest he had in the [residence] to the plaintiff. She shall assume all indebtedness on said [residence], and pay all expenses connected thereto and hold the defendant harmless therefrom.” Further, the court awarded no alimony to either party and stated that “[t]he defendant shall retain his life insurance and his pensions, which the court finds to be a premarital asset, free of any claim from the plaintiff.”

On January 4, 2006, the defendant, pursuant to Practice Book § 11-11, filed a motion to reargue, which the court denied with respect to the issues on appeal. The defendant filed the present appeal on March 27, 2006. On May 22, 2006, the defendant moved for an articulation of the court’s decision, which was denied on June 9, 2006. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the standard of review and legal principles applicable to the defendant’s claims on appeal. “In fashioning its financial orders, the court has broad discretion, and [j judicial review of a trial court’s exercise of [this] broad discretion . . . is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Sander v. Sander, 96 Conn. App. 102, 105, 899 A.2d 670 (2006); see also Purnell v. Purnell, 95 Conn. App. 677, 685, 897 A.2d 717, cert. denied, 280 Conn. 903, 907 A.2d 91 (2006).

“In distributing the assets of the marital estate, the court is required by [General Statutes] § 46b-81 to consider the estate of each of the parties. . . . General Statutes § 46b-81 (a) provides in relevant part: At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . . Courts are not required to ritualistically recite the criteria they considered, nor are they bound to any specific formula respecting the weight to be accorded each factor in determining the distribution of marital assets.” (Citation omitted; internal quotation marks omitted.) Mann v. Miller, 93 Conn. App. 809, 812, 890 A.2d 581 (2006); Raso v. Raso, 92 Conn. App. 678, 681, 886 A.2d 863 (2005).

Last, we recite our standard with respect to the court’s factual findings. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005); Chyung v. Chyung, 86 Conn. App. 665, 667-68, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). Guided by these principles, we address each of the defendant’s claims presented on appeal.

I

The defendant first claims that the court abused its discretion by awarding the plaintiff 100 percent of the equity in the residence. Specifically, he argues that it was improper for the court to offset his pensions, a premarital asset, against all of the equity in the residence, a marital asset, which was awarded to the plaintiff. We are not persuaded.

As we previously noted, among other orders, the court awarded the plaintiff the residence and the defendant his pensions. Pension benefits constitute a form of deferred compensation for services rendered. Thompson v. Thompson, 183 Conn. 96, 100, 438 A.2d 839 (1981). “Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends.” (Internal quotation marks omitted.) Ricciuti v. Ricciuti, 74 Conn. App. 120, 124, 810 A.2d 818 (2002), cert. denied, 262 Conn. 946, 815 A.2d 676 (2003); Stamp v. Visconti, 51 Conn. App. 84, 86, 719 A.2d 1223 (1998). Nevertheless, there is no set formula that a court must follow when dividing the parties’ assets, including pension benefits. Casey v. Casey, 82 Conn. App. 378, 386-87, 844 A.2d 250 (2004).

Our Supreme Court has stated that “the purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his [or hers]. . . . The bare legal title to property acquired or accumulated by the spouses during marriage often does not correspond to their real rights in such property. H. Clark, Law of Domestic Relations (1968) § 14.8, p. 450.” (Citation omitted; internal quotation marks omitted.) Watson v. Watson, 221 Conn. 698, 711, 607 A.2d 383 (1992); see also A. Rutkin & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice (1999) § 26.3, p. 472 (“[g]iven the broad scope of the Connecticut equitable distribution statute, attorneys are spared the effort or need to distinguish between ‘marital’ and ‘non-maritai’ assets”). This process is not bound by a well defined blueprint but, rather, is molded to the needs of justice. See Lawler v. Lawler, 16 Conn. App. 193, 204, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989).

“The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other. . . . In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. . . . This approach to property division is commonly referred to as an all-property equitable distribution scheme. See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01 [2] [a] [v], p. 37-19. [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court’s broad allocative power. A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400.” (Emphasis added; internal quotation marks omitted.) Bender v. Bender, 258 Conn. 733, 741-42, 785 A.2d 197 (2001); see also North v. North, 183 Conn. 35, 38-40, 438 A.2d 807 (1981); Karen v. Parciak-Karen, 40 Conn. App. 697, 702, 673 A.2d 581 (1996); Tyc v. Tyc, 40 Conn. App. 562, 565-66, 672 A.2d 526, cert. denied, 237 Conn. 916, 676 A.2d 398 (1996).

A

The defendant first contends that it was improper for the court to consider his pensions when distributing the property because he had acquired the right to them prior to the marriage. This contention is without merit. As we have noted, a court’s power to allocate property is not limited by timing or method of acquisition. See, e.g., A. Rutkin & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice (1999) § 26.1, p. 470 (“The Connecticut statute is also unlike the provisions in effect in many other jurisdictions in that it does not limit distribution to property acquired during a particular period of time. For example, the statute does not limit distribution to items which were acquired after the date of the marriage, prior to the commencement of the action, or prior to the separation of the parties.”). Moreover, our Supreme Court expressly has stated that the trial court has the authority to distribute individually held property as well as jointly held property. Lopiano v. Lopiano, 247 Conn. 356, 370, 752 A.2d 1000 (1998). “Although it is not improper for the trial court to consider the actual source or ownership of an asset, these are but two factors to be considered in reaching an equitable division in dissolution proceedings. The fact that a particular asset belongs to one spouse may cause the trial court to be predisposed to awarding it to its owner; however, if the marital estate is otherwise insufficient to maintain the other spouse, the court must be able to exercise its discretion in arriving at an equitable distribution, taking into consideration the needs and assets of both parties. The failure to interpret property broadly pursuant to § 46b-81 could result in substantial inequity where, for example, a spouse who recovers a substantial amount in a personal injury action is left with income-producing assets, bought solely with money from the award, and the uninjured spouse is left destitute. Such a result clearly would be contrary to the purposes of § 46b~81 and would not be in keeping with the equitable nature of dissolution proceedings under that section.” Id., 370-71. We conclude, therefore, that the court properly considered the defendant’s pensions when it crafted the financial orders.

B

The defendant also argues that the court improperly found that his pensions had appreciated during the course of the marriage. The court stated that the defendant’s pensions “increase by 3 [percent] each year” and that the present value of the pensions was $363,000. We conclude that the court’s finding was not clearly erroneous.

The following additional facts are necessary for our discussion. The parties stipulated to the value of the defendant’s pensions rather than present expert testimony. The following colloquy then transpired:

“The Court: You are telling me it makes no difference what the value of the pension was at the time of the marriage because prior to that it would be his?

“[The Defendant’s Counsel]: My position for the court is [that] it makes no difference what the value is now either because it is a premarital asset—

“The Court: All I will deal with is the $363,000?

“[The Defendant’s Counsel]: That is the present value as of today.

“The Court: All right.”

Despite this apparent agreement, counsel for the defendant later indicated that he was unsure whether the annual 3 percent cost of living increases applied to the original value of the pensions or to what was remaining in the pensions. Nevertheless, the parties subsequently submitted a joint exhibit indicating that the defendant is entitled to an annual 3 percent cost of living adjustment, which, over the course of an eighteen year marriage, resulted in a 54 percent increase in monthly payments.

On the basis of these facts, we cannot say that the court’s finding that the defendant’s pensions increases by 3 percent each year was clearly erroneous. The amount received by the defendant from his pensions in fact does increase by 3 percent on an annual basis. The defendant speculates that the court’s statement means that the actual value of the pensions increases. We do not agree with this speculation. In the sentence immediately preceding the discussion of the annual increase of his payments from the pensions, the court noted that “[a]fter his marriage is terminated, [the defendant] will lose about $300 per month in benefits.” Reading the two sentences together, it is apparent that the court was referring to the 3 percent increase in payments to the defendant and not a 3 percent increase in the total value of the pensions. We conclude, therefore, that the court’s finding regarding the cost of living adjustment to the defendant’s pensions was not clearly erroneous.

C

The defendant next argues that the court reasonably could not have concluded that awarding him his pensions was an offset against the value of the residence. Specifically, he maintains that the court failed to abide by its statutory obligation to consider the “contribution of each party in the acquisition, preservation or appreciation in value” of an asset, as set forth in § 46b-81. We do not agree.

The court stated that it considered “the pertinent statutes, the requests of the parties and the financial conditions of the parties, their respective ages, their income streams and ability to earn income, etc. . . .” The court further indicated that if it were to award the plaintiff alimony, it then would award the defendant a portion of the residence. The court ultimately decided, however, to forgo an alimony award in favor of awarding the plaintiff the residence and the defendant his pensions.

“In fashioning its financial orders, the court has broad discretion, and [jJudicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Farrell-Williams v. Williams, 99 Conn. App. 453, 455, 913 A.2d 1136 (2007).

The court awarded the defendant his entire pensions, providing him with an undivided monthly stream of income. The court then balanced the financial interests of the plaintiff by awarding her the total interest in the residence, which was subject to a mortgage. In reviewing the court’s actions, we are limited by our standard of review and do not contemplate whether we would reach the same result. Instead, we limit our review to whether the court correctly applied the law and reasonably could have awarded the defendant his pensions and the plaintiff the residence. Mindful of this deferential standard, after reviewing the entire record, we conclude that the court’s financial orders did not constitute an abuse of discretion. In other words, the defendant failed to carry his burden that the court did not consider the proper criteria. See Rummel v. Rum-mel, 33 Conn. App. 214, 222-23, 635 A.2d 295 (1993).

II

The defendant next claims that the court abused its discretion by awarding the plaintiff 100 percent of the equity in the residence as an offset against an award of alimony on the basis of an erroneous finding regarding the termination of the plaintiffs employment. Specifically, he argues that the court erroneously found that the plaintiff had been discharged from her employment in a restaurant two years prior to the trial. We agree that the court’s finding was clearly erroneous. Nevertheless, we conclude that this erroneous finding constituted harmless error.

The following additional facts are necessary for our discussion. The plaintiff testified that she had been employed at several different restaurants. She then indicated that she had been laid off by her employer on November 18, 2005, twelve days before the trial. In its memorandum of decision, however, the court stated: “[The plaintiffs] last employment was as a waitress at Marianni’s Restaurant. This ended about two years ago when she was laid off.”

As we previously stated, a finding of fact is clearly erroneous when there is no evidence in the record to support it. See Gervais v. Gervais, supra, 91 Conn. App. 844. We have reviewed the entire record and conclude that there is no evidence to support the finding that the plaintiffs employment was terminated two years prior to the trial. We agree, therefore, that this finding is clearly erroneous.

Although one of the court’s findings was clearly erroneous, it does not follow a fortiori that the court’s financial orders constituted an abuse of discretion. “Where, however, some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole.” (Internal quotation marks omitted.) Grimm v. Grimm, 82 Conn. App. 41, 48, 844 A.2d 855 (2004), rev’d in part on other grounds, 276 Conn. 377, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006); Owens v. New Britain General Hospital, 32 Conn. App. 56, 78, 627 A.2d 1373 (1993), aff'd, 229 Conn. 592, 643 A.2d 233 (1994); DiNapoli v. Doudera, 28 Conn. App. 108, 112, 609 A.2d 1061 (1992); see O'Bymachow v. O'Bymachow, 12 Conn. App. 113, 117, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987).

In the present case, the court considered the respective age and health of the parties. The court noted that the plaintiff lacked any sort of pension benefits and that her only present income was approximately $300 per week from social security, while the defendant received more than $2100 per month. The plaintiff sold property that she had owned prior to the marriage and used the proceeds to purchase a house in Florida in which both parties had lived. After moving to Connecticut, both parties contributed to the residence until the defendant moved out in December, 2003. After that time, the defendant did not assist the plaintiff financially in any way, leaving her to pay the mortgage, her living expenses and the expenses associated with ownership of the residence. After considering the statutory factors, the court, in an effort to untangle the parties’ finances, ordered that the defendant quitclaim his interest in the residence to the plaintiff and that the plaintiff solely be responsible for its expenses. Neither party was awarded alimony. The plaintiff was given one motor vehicle, while the defendant received three. The plaintiff was required to give the defendant a painting valued at $12,000. The parties were ordered to pay their own attorney’s fees, to provide their own medical insurance coverage and to pay their joint debts equally. Finally, the court awarded the defendant, free from any claim by the plaintiff, his life insurance and pensions.

Despite the court’s erroneous finding regarding the timing of the termination of the plaintiffs employment, after reviewing the entire record before us, we cannot say that the court’s financial awards constituted an abuse of discretion. The court considered the relevant statutory criteria and applied its broad allocative authority to distribute the property equitably between the parties. “An equitable award does not require that the marital estate be divided equally.” (Internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 656, 684, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000); see also Purnell v. Purnell, supra, 95 Conn. App. 681. In allowing for every reasonable presumption in favor of the correctness of the court’s actions, we cannot conclude that the court abused its discretion with respect to its property distribution between the parties in the present case.

Ill

The defendant next claims that the court abused its discretion by valuing the residence as of the date of the parties’ separation instead of the date of dissolution. Although it is difficult to discern from his brief, the defendant appears to argue that the court improperly awarded the plaintiff all of the appreciated value of the residence from the time of the separation. We disagree.

As a general rule, “§ 46b-81 indicates that it is the date of dissolution, rather than the date of separation, on which the [parties’] marital assets are to be determined.” (Internal quotation marks omitted.) Kiniry v. Kiniry, 71 Conn. App. 614, 624-25, 803 A.2d 352 (2002), aff'd, 79 Conn. App. 378, 830 A.2d 364 (2003); Benedetto v. Benedetto, 55 Conn. App. 350, 356, 738 A.2d 745 (1999), cert. denied, 252 Conn. 917, 744 A.2d 437 (2000). In Wendt v. Wendt, supra, 59 Conn. App. 656, this court stated that valuation as of the date of dissolution “is simply part of the broader principle that the financial awards in a marital dissolution case should be based on the parties’ current financial circumstances to the extent reasonably possible.” (Internal quotation marks omitted.) Id., 661-62. Nevertheless, “[t]he principle that requires the court to value assets as of the date of dissolution does not absolutely preclude the court from considering the significance of the date of separation. . . . [T]he date of separation may be of significance in determining what is equitable at the time of distribution. In distributing property . . . the court is instructed to consider the contribution of each spouse in the acquisition, preservation and appreciation of the marital estate. After the date of separation, it is not difficult to conceive that one spouse may acquire a particular asset without any contribution from the other spouse.” (Internal quotation marks omitted.) Id., 663-64.

The defendant argues that the plaintiff was earning more income in December, 2003, and January, 2004, the time at which he left the residence. As a result of that factor, combined with his age, he maintains that it was equitable to expect the plaintiff to pay the expenses associated with the residence, including the mortgage, while he paid for his own living expenses. The court, however, found that the defendant, after separating from the plaintiff and moving out in December, 2003, ceased paying any of the expenses associated with the residence. Moreover, it heard evidence that the defendant’s total income, including his pensions and social security payments, actually was greater than the plaintiffs. Further, during the two year period after the parties separated until the trial, the plaintiff alone maintained the residence, while the defendant purchased various motor vehicles. The court then determined it equitable to award the plaintiff all of the appreciation in the residence. On the basis of the entire record before us, we cannot conclude that this determination constituted an abuse of discretion.

IV

The defendant’s final claim is that the court abused its discretion by valuing the residence without any appraisal or expert testimony. Specifically, the defendant argues in his brief that the “only evidence regarding the value of the residence in 2003 was the self-serving testimony of the [p]laintiff. Pursuant to Connecticut Practice Book § 25-33, the trial court has the authority [to] appoint an expert to value an asset, should the trial court deem it necessary.” The defendant concludes that such a valuation was necessary in the present case.

The defendant has provided no citation or legal authority in support of this claim. It is well established that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 166, 908 A.2d 13 (2006); Sander v. Sander, supra, 96 Conn. App. 114. Accordingly, we decline to review this claim on the basis of an inadequate brief.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court granted the motion with respect to the issue of the division of personal property, which the court referred to arbitration.

       The defendant did not seek review of the denial of his motion for articulation.

       We also note that the defendant failed to seek an articulation of the court’s decision with respect to the issue of the cost of living adjustments to his pension. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening System, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005); see also Premier Capital, Inc. v. Grossman, 92 Conn. App. 652, 660 n.l, 887 A.2d 887 (2005).

       We are entitled to presume that the court acted properly and considered all of the evidence before it. Misinonile v. Misinonile, 35 Conn. App. 228, 234, 645 A.2d 1024, cert. denied, 231 Conn. 929, 649 A.2d 253 (1994); Rummel v. Rummel, 33 Conn. App. 214, 222, 635 A.2d 295 (1993).

       The defendant also argues that the court improperly found that the plaintiff most recently had been employed as a restaurant manager and therefore had a higher earning capacity than a waitress. We note that the court was in possession of the plaintiffs most recent financial affidavit, listing her income, and the defendant has not challenged the veracity of that evidence. The defendant, moreover, failed to present any evidence regarding the amount of income earned by the plaintiff as a manager as compared with that of a waitress. “As [our Supreme Court has] observed, [i]t is the function of the trial court, not [an appellate] court, to find facts. . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 105, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).

       The defendant argues that the court failed to find that the proceeds from these sales were in Canadian dollars, which “are worth significantly less than American dollars, given the exchange rate.” The defendant, however, failed to present any evidence to the trial court regarding the exchange rate between United States and Canadian dollars during the relevant time period. We therefore decline to consider this claim. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Urich v. Fish, 97 Conn. App. 797, 801, 907 A.2d 96 (2006).

       To the extent that the defendant challenges the valuation of the residence, we decline to review that claim. The parties stipulated that the value of the residence at the time of trial in 2005 was $272,500, subject to a mortgage of $99,723.77. The court accepted the parties’ stipulation. “Ordinarily . . . stipulations of the parties should be adopted by the court. Central Coat, Apron & Linen Service, Inc. v. Indemnity Ins. Co., 136 Conn. 234, 236, 70 A.2d 126 (1949).” Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 438, 606 A.2d 729 (1992); see also State v. Phidd, 42 Conn. App. 17, 31, 681 A.2d 310 (formal stipulation of facts by parties constitutes judicial admission that should normally be adopted by court deciding case), cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997).
      Because the defendant stipulated to the value of the residence before the trial court, he cannot now challenge that finding by the court. “This situation is in the nature of induced error. Actions that are induced by aparty ordinarily cannot be grounds for error [on appeal].” (Internal quotation marks omitted.) Sachs v. Sachs, 60 Conn. App. 337, 345, 759 A.2d 510 (2000).
      Additionally, we note that the court did not value the residence at the time of separation, in 2003. The court expressly stated that it accepted the parties’ stipulation that the value of the residence at the time of the trial was $272,500 with equity in the amount of $172,777.

       Even if we were to review this claim, we would conclude that it is without merit. As the plaintiff noted in her brief, homeowners are permitted to testify concerning their opinion as to the fair market value of the property. Gregorio v. Naugatuck, 89 Conn. App. 147, 156, 871 A.2d 1087 (2005); see also Pestey v. Cushman, 259 Conn. 345, 364, 788 A.2d 496 (2002) (“[t]his rule reflects . . . the common experience that an owner is familiar with her property and knows what it is worth” [internal quotation marks omitted]); Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 47, 634 A.2d 870 (1993); McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981). The court, therefore, was free to accept the plaintiffs testimony regarding the value of the residence.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALLEN ADGERS
    (AC 26408)
    Graendel, Rogers and Peters, Js.

      Argued February 23
    officially released May 8, 2007

      Brendon P. Levesque, special public defender, with whom were Daniel J. Krisch and, on the brief, Michael S. Taylor, for the appellant (defendant).

      Julia K. Conlin, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mark Brodsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

Pursuant to General Statutes § 53a-183 (a) (2), a person is guilty of harassment in the second degree if “with intent to harass, annoy or alarm another person, he communicates with a person by . . . mail ... in a manner likely to cause annoyance or alarm.” In this case, the defendant challenges the sufficiency of the evidence to establish that he violated this statute by mailing letters containing civil pleadings to his former wife while he was incarcerated for having kidnapped and assaulted her. Alternatively, he claims that, if his conduct is held to fall within the ambit of the statute, the statute is unconstitutionally vague. Because we are not persuaded by either contention, we affirm the judgment of the trial court.

On January 16, 2003, the state filed an information charging the defendant, Allen Adgers, with nine counts of harassment in the second degree in violation of § 53a-183 (a) (2). After a jury trial, the defendant was convicted of eight counts and acquitted of one count. In response to a second information filed February 1,2005, a jury subsequently found the defendant guilty of being a persistent offender in violation of General Statutes § 53a-40d. The trial court sentenced him to a total effective term of forty-eight months to be served consecutively to the prior sentence that had been imposed for his conviction of first degree kidnapping, sexual assault in a spousal relationship and assault in the second degree.

The jury reasonably could have found the following facts. The victim and the defendant separated in March, 2000, after having gotten married a year earlier. Thereafter, on May 8, 2000, the defendant cut the victim with a razor blade, but she was able to escape further injury. A year later, on June 12, 2001, the defendant kidnapped the victim and assaulted her both physically and sexually. On May 31, 2001, after pleading nolo contendere to the latter charges, the defendant was sentenced to twenty-five years in prison, suspended after thirteen years, and ten years of probation with the condition that he have no contact with the victim. At the sentencing hearing, the defendant accused the victim of having set him up and of destroying his family.

Both before and after his conviction, the defendant sent mail to the victim although she had no desire to communicate with him. The victim recognized his handwriting on these mailings. After the defendant had begun serving his sentence, he filed a civil action against the victim in which he charged her with having broken a mutual covenant not to say anything bad against each other. Relying on the advice of a court clerk, the victim filed a pro se appearance in this lawsuit but turned over to the Hartford state’s attorney’s office most of the documents relating thereto that she received from the defendant. To avoid prison censorship, the defendant had sent documents relating to his civil action in envelopes labeled “legal mail” or “court mail.” The documents were sent to the victim at her home address in envelopes that, in most instances, bore additional writing such as a biblical reference or the words “You mislead me . . . over parties and drinking” or “Life number five gone cause your drinking.” According to the victim, these mailings annoyed and alarmed her.

The defendant did not deny sending these mailings but emphasized his right to file civil pleadings and denied that he had intended to annoy or alarm the victim. In his view, the victim was behaving vengefully because he had caused her to be charged with child welfare fraud.

I

The crux of the defendant’s appellate claim on insufficiency of the evidence is that, because his mailings concerned civil pleadings, the state failed to establish that his communications to the victim would cause annoyance or alarm to “a person of common intelligence.” (Internal quotation marks omitted.) State v. Murphy, 254 Conn. 561, 574 n.24, 757 A.2d 1125 (2000). Although the defendant emphasizes that the mailings must be viewed “objectively” and “in their entirety,” he acknowledges that it was proper for the jury to take account of “the underlying history between the parties.” Indeed, in State v. Lewtan, 5 Conn. App. 79, 84, 497 A.2d 60 (1985), this court held that a jury considering the response of “a person of common intelligence” may receive evidence of the particular circumstances surrounding a particular communication. See also State v. Snyder, 40 Conn. App. 544, 552, 672 A.2d 535 (applicability of § 53a-183 [a] [2] depends on effect on “the intended victim”), cert, denied, 237 Conn. 921, 676 A.2d 1375 (1996), on appeal after remand, 49 Conn. App. 617, 717 A.2d 240 (1998).

Our standard of review of the defendant’s claim is well established. “[P]roof 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 jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Murphy, supra, 254 Conn. 575-76.

The defendant’s appeal challenges the sufficiency of the evidence of harassment with respect to six of the nine communications that he mailed to the victim between March 21 and December 17, 2002. The victim testified that she found each of these communications annoying and alarming. The juiy heard that the previous May, at the defendant’s sentencing for having kidnapped and assaulted the victim, the defendant had accused her of being “a prideful woman” whose conduct had “destroyed his family.”

A centerpiece of the defendant’s claim of insufficiency of the evidence is his contention that his mailings to the victim could not reasonably be found to have annoyed or alarmed her because they contained legal pleadings. The defendant relies on case law holding that, as a general rule, communications uttered or published in the course of judicial proceedings are absolutely privileged as long as they are pertinent to the subject of the controversy. See Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986); Dlugokecki v. Vieira, 98 Conn. App. 252, 256, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006); see also 3 Restatement (Second), Torts § 586, comment (a), p. 247 (1977). Significantly, however, the defendant has not argued that, under the circumstances of this case, this common-law privilege gave him absolute immunity from criminal liability under § 53a-183 (a) (2) as a matter of law. By focusing on the sufficiency of the evidence against him, the defendant implicitly has acknowledged that if a jury reasonably found that the mailings he sent to the victim contained collateral notations that would cause annoyance or alarm to “a person of common intelligence” in light of “the underlying history between the parties,” such mailings were not privileged.

Examination of the defendant’s mailings to the victim reveals that none of them contained only civil pleadings. In each case, either on the envelope or on the enclosures or both, the defendant had added comments or messages that were not relevant to his civil suit against the victim. Even though the messages were not threatening on their face, it was not unreasonable for the jury to find that their very ambiguity made it likely that they would have annoyed or alarmed the victim in light of the assaults to which the defendant recently had subjected her. On this record, we are unpersuaded by the defendant’s claim of evidentiary insufficiency. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510-11, 668 A.2d 1288 (1995).

II

In the defendant’s alternative claim for reversal of the judgment against him, he argues that, as applied to him, § 53a-183 is unconstitutionally vague. Although this claim was not raised at trial, we agree with the defendant that it is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). On the merits, however, we agree with the state that the statute passes constitutional muster.

“A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. . . . Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. ... A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. ... To demonstrate that [a statute] is unconstitutionally vague as applied to [him], the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citation omitted; internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 709-10, 905 A.2d 24 (2006).

The defendant argues that, as applied to the mailings that he sent to the victim, § 53a-183 (a) (2) is unconstitutionally vague for three reasons. He maintains that he reasonably believed that his conduct was lawful because (1) the victim filed a pro se appearance in response to his lawful civil suit, leading him to expect that she would respond to his subsequent civil pleadings, (2) at the time of the mailings, there no longer was an outstanding “no contact order” prohibiting him from sending legal pleadings to the victim and (3) no one ever informed the defendant to stop sending legal pleadings to the victim. We are not persuaded.

We agree with the state that it was not reasonable for the defendant to infer from the victim’s failure to object to his civil pleadings that she would not likely be alarmed or annoyed by the myriad of extraneous comments that he attached thereto. Similarly, we are not persuaded that it was reasonable for the defendant to infer consent from the victim’s failure to renew a “no contact order” during his period of incarceration.

Furthermore, our conclusion that, under the circumstances of this case, the statute is constitutional, is buttressed by the fact that the defendant’s conviction depended on proof by the state that the defendant sent mailings to the victim “with intent to harass, annoy or alarm” her. Numerous cases have held that “[u]nder appropriate circumstances, the presence of a specific intent element in the offense may purge a potentially vague criminal statute of constitutional infirmity.” (Internal quotation marks omitted.) State v. Payne, 40 Conn. App. 1, 7, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004); see also State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988).

The defendant urges us to discount the significance of the specific intent requirement by hypothesizing that the jury improperly might have inferred that the defendant had the requisite intent from the victim’s testimony that she felt harassed, alarmed and annoyed by any contact with the defendant. This argument fails for lack of a supporting record. In the absence of a copy of the jury instructions, we do not know what charge the trial court gave the jury with respect to proof of the specific intent requirement of the statute. Contrary to the defendant’s hypothesis, we presume that the trial court, in instructing the jury, undertook a proper analysis of the law and the facts. We do not presume error. State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant guilty with respect to exhibit seven, a letter containing a motion for immediate judgment by default in the defendant’s civil action against the victim.

       Because the victim did not respond to the defendant’s civil suit except by entering her appearance, the defendant obtained a default judgment against her. Thereafter, however, the trial court, Beach, J., declined to award damages to the defendant. The court held that an agreement not to disparage another violates public policy because, if enforced under the circumstances of this case, it would place a monetary penalty on a person’s reporting a crime.

       In this appeal, the defendant has challenged the validity of his conviction only with respect to mailings that contained civil pleadings. Thus, he is not contesting the propriety of his conviction with respect to exhibits six and nine, which contained photocopied pictures and the obituary of the defendant’s father.

       The first count of the information was based on an envelope with three biblical references, the name of the victim under one reference and the name of the defendant under another reference. The envelope also contained the phrase, “the store dream.” Enclosed in the envelope were four documents: a handwritten “motion to revised” that referred to the victim as “always stubborn never willing to just communicate that to easy ... So Let do it”; a handwritten memorandum in opposition to court delay with the word “bunny” next to the victim’s name; a short calendar list form; and an unsigned appearance form.
      The second count of the information was based on an envelope repeating one of the biblical references that contained a handwritten “Motion to Revise Complaint” that, among other representations, charged the victim with having “Broken promise And Commitment to family.”
      The third count of the information was based on an envelope stating, “You mislead me . . . over parties and drinking,” as well as “legally only my Destiny is to have you speak the truth only. Even if take court a Life time . . . the State enable you” followed by two biblical references and the victim’s first name. The envelope contained a motion “for Leadway in proving Defendant, Bare false wittness And Broken pledge” and an appearance form.
      The fourth count of the information was based on an envelope addressed to “Att, Pro Se [victim’s name]” that contained reference to two girls, pictures of a half-moon, rain and pork chops, and five stick figures near one of which was the legend “Life #5 gone Cause your drinking.” The envelope contained a motion for contempt.
      The fifth count of the information was based on an envelope with a number of statements on the back, including “[victim’s first name] of the heart,” “to Save A family” and “That All I have” as well as a drawn cross. Inside the envelope were a handwritten “Motion to enter as Co-plaintiff ’ identifying the victim as the plaintiff and a third party as the defendant, as well as an appearance form signed by the defendant.
      The sixth count of the information was based on a mailing containing a death notice of the defendant’s father. The defendant does not challenge his conviction on this count.
      The seventh count of the information was based on a mailing containing two motions, one for judgment by default and the other for a garnishment hearing. The jury found the defendant not guilty on this count.

        The eighth count of the information was based on a mailing containing a handwritten list with signatures on the bottom. On the back, the defendant had written a note to the victim stating, “You knew we had an agreement, after put you out of house in front of the police for falsely calling the police on me. Sunday 4-8-2000 And because you threaten to ruin me . . . You are forgive, your forever in my Heart but God will punish you, for Your falsehoods.”
      The ninth count of the information was based on a mailing containing five documents. These included a “Happy Holidays” letter addressing the victim as “Bunny face,” a purported “Bill of Labor of Love,” another copy of the handwritten list referenced in the eighth count, and photographs of children at play, including the victim’s children. The defendant does not challenge his conviction on this count.

       This court previously has held that § 53a-183 (a) (2) is not unconstitutionally vague on its face. State v. Snyder, 49 Conn. App. 617, 629, 717 A.2d 240 (1998).


author: ROGERS, J.

text:
    SHAWN CROCKER v. COMMISSIONER OF CORRECTION
    (AC 26603)
    Schaller, Rogers and Lavine, Js.
    Argued October 20, 2006
    officially released May 8, 2007

      Joseph A. Jaumann, special public defender, for the appellant (petitioner).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROGERS, J.

The petitioner, Shawn Crocker, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his trial counsel did not render ineffective assistance regarding (1) his failure to object to the admission into evidence of the transcript testimony of a witness from the petitioner’s first criminal trial and (2) adequately investigating his case prior to his second trial. We affirm the judgment of the habeas court.

The relevant facts and procedural history are set forth in our decision affirming the petitioner’s conviction on direct appeal. State v. Crocker, 83 Conn. App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). “Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as ‘the Island.’ The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the [fatal shooting] of Grear’s brother, Corey Grear [by the victim], which had occurred approximately one week earlier, for which the victim . . . apologized. Corey Grear was a friend of the [petitioner], and the [petitioner] had held [Corey Grear] in his arms after Grear was fatally shot by the victim. The [petitioner] had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the [petitioner], of the Island Brothers, a street gang into which the victim had been introduced and sponsored by the [petitioner], As his sponsor, the [petitioner] was responsible for disciplining the victim should the victim kill a fellow gang member. As Tacuma Grear walked away from the Jeep, the [petitioner] had come up to the driver’s side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep.” Id., 619. After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217.

Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of his trial counsel, Leo Ahem, who had represented the petitioner throughout his first criminal trial, which resulted in a mistrial, and then again in his second trial. The habeas court rejected the petitioner’s claims of ineffective assistance of counsel but later granted the petition for certification to appeal. Additional facts will be set forth as necessary.

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

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Citation omitted; internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn. App. 526, 529-30, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that Lj]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 425, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

“The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citation omitted; internal quotation marks omitted.) Porter v. Commissioner of Correction, 99 Conn. App. 77, 83, 912 A.2d 533, cert. granted on other grounds, 281 Conn. 922, 918 A.2d 272 (2007).

“Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1, 11-12, 916 A.2d 864 (2007).

I

The petitioner first claims that his trial counsel provided ineffective representation for failing to object to the admission into evidence of the testimony of Travis Jenkins from the petitioner’s first trial and by subsequently objecting to the state’s motion to open its case to allow Jenkins to testify. Specifically, the petitioner contends that Ahern’s failure to object to the admission of the Jenkins transcript was constitutionally deficient and prejudiced him because the testimony in the transcript contained a prior inconsistent statement by Jenkins, which the petitioner argues was inadmissible under State v. Williams, 231 Conn. 235, 645 A.2d 999 (1994), overruled on other grounds by State v. Murray, 254 Conn. 472, 499, 757 A.2d 578 (2000) (en banc), because Jenkins did not testify at the second trial and was not subject to cross-examination. We disagree.

The following additional facts are relevant to our resolution of the petitioner’s claim. During the petitioner’s second trial, the state presented evidence that it had been unable to procure the attendance of Jenkins, for whom the court previously had issued a capias. The court made a finding that the state had established, pursuant to § 8-6 of the Connecticut Code of Evidence and the common law, that Jenkins was unavailable to testify. The court then admitted into evidence Jenkins’ testimony from the petitioner’s first trial and permitted Ahem to preserve any objections he may have had as to the content of the testimony. After a recess in order to permit Ahern to review the transcript, the court asked him if he had any comments on the substance of the transcript, and he responded that he did not. After the state rested, and while the petitioner was presenting his case, the state informed the court that Jenkins was present. Ahern objected to the state’s opening its case and calling Jenkins to testify, and the court sustained the objection. State v. Crocker, supra, 83 Conn. App. 653.

At the habeas trial, Ahem testified that he was concerned that Jenkins might show up to testily and when he did, Ahem did not want Jenkins to testily. He believed that Jenkins had been somewhat cooperative when he testified at the first trial and did not want to risk Jenkins giving potentially more damaging live testimony. He also was skeptical about the state’s failure to locate Jenkins and wondered whether the state had tried to get him to say things that perhaps he did not say at the first trial.

We conclude that the petitioner has failed to demonstrate that there existed a reasonable probability that, absent the alleged errors by Ahem, the fact finder would have had a reasonable doubt respecting the guilt of the petitioner. The Jenkins transcript was not strong evidence for the state. In the state’s direct examination, Jenkins admitted that he initially told the police that the petitioner had shot the victim but recanted these prior statements on direct and cross-examination. Jenkins testified on direct examination and cross-examination that he was not present at the scene when the victim was shot and never saw the petitioner shoot the victim. He explained further on cross-examination that the only reason he told police that the petitioner had shot the victim was because the police had threatened to charge him with conspiracy to commit murder if he did not.

Additionally, the state presented other evidence probative of the petitioner’s guilt. Detective Richard Pel-letier testified during the second trial regarding the petitioner’s motive for killing the victim, who was believed to have killed the petitioner’s close friend, Corey Grear. Tacuma Grear testified for the state that he gave the police a tape-recorded statement, which was introduced into evidence. After reviewing that statement, Tacuma Grear testified that when four to five gunshots were fired, he saw someone who looked like the petitioner leaning toward the driver’s side window of the vehicle in which the victim was a passenger and saw flashes. The state also introduced testimony from Wright identifying the petitioner as the shooter. He testified that he saw someone fire gunshots into the Jeep in which the victim was sitting and as that person walked away, he recognized the petitioner’s limp. Wright had known the petitioner for eight years. Wright also saw that that person was dressed in the same clothes that he had seen the petitioner wearing approximately twenty minutes before the shooting. Wright testified that he told the police two days after the shooting that he was sure that it was the petitioner who had shot the victim. See State v. Crocker, supra, 83 Conn. App. 646.

On the basis of the foregoing, we conclude that the petitioner has failed to satisfy the prejudice prong of Strickland. See Strickland v. Washington, supra, 466 U.S. 687.

The petitioner has not demonstrated that there is a reasonable probability that, but for the admission of the Jenkins transcript, the result of the trial would have been different.

II

The petitioner next claims that his trial counsel was ineffective because he failed to investigate the state’s evidence or obtain any discoveiy of the state’s evidence prior to the start of the second trial in order to advise him properly concerning his right to testily. Specifically, he argues that Ahem was ineffective because he failed to discover two photographs that had been introduced in an unrelated criminal trial and failed to advise him not to testify on this basis. We are not persuaded.

The following additional facts are relevant to our resolution of the petitioner’s claim. At his second trial, “[t]he [petitioner] testified and on cross-examination, the state asked if he was a member of the Island Brothers or if he had participated in gang activities or rituals. The [petitioner] responded that he did not. The state then had two photographs marked for identification. The [petitioner] then asked to be heard outside the jury’s presence. Outside the jury’s presence, the [petitioner] denied that he was depicted in the photographs giving an Island Brothers’ hand sign. The state then offered the photographs as full exhibits. The court allowed the photographs into evidence, finding that their probative value outweighed any potential prejudice. . . . The photographs were admitted to impeach the [petitioner’s] denial of membership in the Island Brothers. The photographs depicted the [petitioner], wearing a bulletproof vest, along with some individuals with Island Brothers tattoos, making the hand sign that members of the Island Brothers used to signify their membership in the gang.” State v. Crocker, supra, 83 Conn. App. 641.

At the habeas trial, the petitioner testified that it was his understanding that Ahem did not conduct any discovery to obtain the photographs prior to the second trial and that Ahem did not discuss with him the possible effects of the photographs. He stated that Ahem had limited discussions with him concerning his testimony and that had he known that these photographs could have been used to impeach his credibility, it would have affected his decision to testify at trial. The petitioner admitted, however, that before he testified he had been made aware of the existence of the photographs by Carlos Ashe, with whom he had spoken while in lock-up. The photographs had been introduced in Ashe’s unrelated criminal trial. The petitioner testified that he did not tell Ahem about the existence of those photographs.

Ahem testified that the petitioner, who had testified at his first trial, was a good witness. Although the ultimate decision to testify at the second trial had been made by the petitioner, Ahem agreed with that decision. Ahem further testified that he was unaware of the existence of the photographs from the Ashe trial until the petitioner was impeached with them during his testimony. Regarding his investigatory efforts, Ahem testified that by the time of the second trial, he had received witness statements from the state as well as materials from the petitioner’s original attorney on the case, Michael Dolan, who had been disqualified. He testified that after obtaining the petitioner’s file, he went to the Quinnipiac housing project on Dover Street in New Haven to investigate by speaking to the people there and seeing if they knew anything about the case. He testified that he did so prior to the petitioner’s first trial and did so again between his first and second trials. In addition, he testified that he spoke with Dolan and worked with an investigator from the public defender’s office to perform an investigation and to locate people.

“[Constitutionally adequate assistance of counsel includes competent pretrial investigation. . . . Hindsight is irrelevant. . . . [T]he issue, therefore, is not what counsel should have done to constitute the proper representation of the [petitioner] considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the [petitioner] received effective assistance of counsel. . . . Furthermore, the effective assistance of counsel incorporates the obligation to investigate the circumstances of the case as well as all avenues leading to facts relevant to the merits of the case. . . . [C]ounsel need not track down each and every lead or personally investigate every evidentiaiy possibility before choosing a defense and developing it.” (Citations omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 861-62, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). We do not conclude that Ahern’s investigation was inadequate.

The habeas court found that the petitioner was aware of the existence of the photographs prior to taking the witness stand to testify but failed to advise Ahem about the existence of those photographs. The petitioner has offered no explanation as to how Ahem should have conducted discovery in connection with Ashe’s unrelated criminal case, much less any legal authority that he was constitutionally required to do so. He failed to establish that Ahern’s trial strategy of letting the petitioner testify at trial was unreasonable in light of what Ahem knew at the time, especially in view of the petitioner’s failure to advise him of the existence of the photographs. Accordingly, we conclude that the petitioner has failed to satisfy the first prong of Strickland for establishing ineffective assistance of counsel. We, therefore, do not need to analyze the prejudice prong of that test. 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).

The judgment is affirmed.

In this opinion the other judges concurred.

       In State v. Williams, supra, 231 Conn. 250, our Supreme Court held that it was improper, under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), to admit into evidence the prior inconsistent statement of an individual who had been a witness in a prior proceeding where the declarant was not a witness in the trial in which the statement was admitted under Whelan. We take no position on the issue presented under Whelan because we determine that our consideration of the petitioner’s ineffective assistance claim under the prejudice prong of Strickland is dispositive. See footnote 2.

       Because we conclude that the petitioner has failed to satisfy the prejudice prong of Strickland, we need not determine whether it constituted deficient representation for Ahern to fail to object to the admission of the Jenkins transcript and subsequently object to the state’s motion to open its case to allow Jenkins to testify. See Pierce v. Commissioner of Correction, supra, 100 Conn. App. 12 n.5.

       The state called Wright to testify, and he refused to respond to any of the state’s questioning despite the court’s order to testify. The court found that Wright was unavailable and permitted the state to introduce into evidence Wright’s prior probable cause hearing testimony.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. DARRYL FAUNTLEROY
    (AC 27016)
    Schaller, DiPentima and Gruendel, Js.

      Argued February 15
    officially released May 8, 2007

      David J. Reich, special public defender, for the appellant (defendant).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dea,r-ington, state’s attorney, and Richard L. Palombo, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Darryl Fauntleroy, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit burglary in the third degree in violation of General Statutes §§ 53a-49 and 53a-103 (a), attempt to commit larceny in the sixth degree in violation of General Statutes §§ 53a-49 and 53a-125b, and criminal mischief in the third degree in violation of General Statutes § 53a-117. On appeal, the defendant claims that (1) the state produced insufficient evidence for the jury to find him guilty of all charges and that the trial court was thus obligated to render a judgment of acquittal, (2) the court improperly instructed the jury on an essential element of larceny in the sixth degree, (3) § 53a-125b (a) is unconstitutionally vague and (4) General Statutes § 53a-121 (a) (3) unconstitutionally relieves the state of its burden of proof under the larceny statute. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the early morning hours of October 15, 2004, the defendant was observed by a Yale University police officer, Gregg Curran, walking through a well lit public parking lot on the Yale University campus looking through the windows of parked cars. The defendant stopped at a Nissan Pathfinder with tinted windows and began pulling on the door frame of the driver’s side door and shaking the vehicle. The Pathfinder contained two coats that had been placed in the locked vehicle earlier in the evening by its owner. After a few moments, the defendant moved to the rear driver’s side door, paused to look around the lot and then began striking the rear driver’s side window of the vehicle with a heavy object. Curran called for backup help and left his position to block the nearest exit from the lot. From his new position, Curran heard a car alarm sound in the lot. Sergeant Jeannine Hemenway was the first officer on the scene and stopped the defendant as he was attempting to exit the lot. Curran joined Hemenway and identified the defendant as the person attempting to break into the Pathfinder. At the time he was apprehended, the defendant did not have either of the coats in his possession. The defendant was arrested and charged. After the state rested at trial, the defendant made an oral motion for a judgment of acquittal with respect to the attempt to commit burglary, attempt to commit larceny and criminal mischief charges, which the court denied. Following the jury trial, the defendant was convicted and sentenced to five years incarceration, execution suspended, and three years of probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim on appeal is that the evidence was insufficient to form the basis of a conviction for attempt to commit burglary in the third degree, attempt to commit larceny in the sixth degree and criminal mischief in the third degree. Specifically, the defendant argues that the state failed to prove that (1) he had the requisite specific intent to steal the coats, (2) he took a substantial step toward completing the charged crimes and (3) he was not given permission to enter the vehicle. We are not persuaded.

In reviewing sufficiency of the evidence claims, 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Straub, 90 Conn. App. 147, 153-54, 877 A.2d 866, cert. denied, 275 Conn. 927, 883 A.2d 1252 (2005).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As 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 [jury], 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 jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 682, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004). With this standard of review in mind, we will review the defendant’s sufficiency claims together, as the defendant juxtaposes his arguments with respect to each conviction.

“Burglary in the third degree is defined in General Statutes § 53a-103 as entering] or remainfing] unlawfully in a building with intent to commit a crime therein.” (Internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 429, 599 A.2d 1065 (1991). As defined in General Statutes § 53a-100 (a) (1), a vehicle comes within the definition of building.

With respect to larceny, “Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Flowers, 69 Conn. App. 57, 69, 797 A.2d 1122, cert. denied, 260 Conn. 929, 798 A.2d 972 (2002). General Statutes § 53a-125b entitled, “Larceny in the sixth degree: Class C misdemeanor,” provides: (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

With respect to criminal mischief, “[t]he essential elements of the crime of criminal mischief in the third degree are (1) that tangible property of another was damaged, (2) that the defendant intentionally or recklessly caused the damage and (3) that the defendant has no reasonable ground to believe that he had a right to do so.” State v. Hoskins, 35 Conn. Sup. 587, 595, 401 A.2d 619 (1978).

The defendant was charged with attempt to commit burglary in the third degree and attempt to commit larceny in the sixth degree. “An attempt of a crime is accomplished when a person intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . . . The defendant also must have possessed the specific intent to commit the underlying crime. An attempt is an inchoate crime, meaning that it is unfinished or begun with the proper intent but not finished. . . . [T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 96 Conn. App. 634, 641, 902 A.2d 17, cert. denied, 280 Conn. 919, 908 A.2d 544 (2006).

A

The crux of the defendant’s first sufficiency claim is that because the coats in the vehicle were not in view and the type and quality of the coats were unknown, the state failed to prove that the defendant had the specific intent necessary to sustain a conviction for attempt to commit larceny in the sixth degree. Because larceny formed the basis of the attempt to commit burglary charge, he challenges the sufficiency of the evidence to sustain that conviction as well.

On the night of the incident, Lisa Smith had parked the Pathfinder in the lot while she and a friend went to local area clubs. She returned to the vehicle after it had been parked to put her coat and her friend’s coat in the backseat. After putting the coats in the backseat, she locked the doors. When questioned about her actions, Lisa Smith testified that she returned the coats to the car because the weather was warmer than she had anticipated and she did not want to leave them in the club.

“It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, aperson’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted). State v. Smith, 99 Conn. App. 116, 133, 912 A.2d 1080, cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007).

In the present case, the jury reasonably could have inferred from the defendant’s conduct, which included peering through the windows of the Pathfinder during the early morning hours in a well lit parking lot, pulling on the door frames and then striking the window with an object, that the defendant had seen the coats in the back of the vehicle and intended to steal the coats when he broke the window. Those facts amply support the jury’s conclusion that the defendant attempted to enter the vehicle unlawfully with the specific intent to commit a crime therein. The defendant’s claim that the tinted windows would have prevented him from seeing the coats is not convincing when considered in conjunction with the defendant’s conduct. We are equally not persuaded by the defendant’s assertion that because the value of the coats was unknown, the defendant’s intent was lacking. It is not necessary to prove that the coats were spun from silk or fashioned from the finest cloth to satisfy the statutory requirement of value set forth in § 53a-125b. Property is defined in the larceny statutes as merely “any . . . personal property ... or article of value of any kind. ...” General Statutes § 53a-118 (a) (1). Even the simplest garment has some cognizable value to its owner when used in some capacity. See, e.g., State v. McArthur, 96 Conn. App. 155, 170, 899 A.2d 691 (statutory requirement of value set forth in larceny statute satisfied where jury found credible testimony as to usefulness of item taken), cert. denied, 280 Conn. 908, 907 A.2d 93 (2006). In the present case, Smith testified about the coats’ usefulness on the night of the incident. On the basis of that testimony, the jury had a valid basis for finding that the coats had some cognizable value. See General Statutes § 53a-125b.

B

The defendant’s next sufficiency claim is that the state did not prove that the defendant took a substantial step toward completing the crime of larceny in the sixth degree or burglary in the third degree. Specifically, the defendant argues that because no proof of the damage to the Pathfinder was introduced at trial, the state did not meet its burden.

This argument warrants little discussion. There was ample evidence submitted at trial to establish that the defendant broke the window of the Pathfinder in an effort to commit a crime therein. That conduct, coupled with the defendant’s actions prior to breaking the window, constituted a substantial step in completing the crimes for which he ultimately was convicted.

C

The defendant’s final sufficiency claim, with respect to the attempt to commit burglary and criminal mischief charges, centers on whether he was given permission to enter the vehicle. The defendant claims that because no evidence was presented by the legal owner of the vehicle, James Smith, the state failed to prove that the defendant did not have permission to enter the vehicle.

At the time of the incident, the Pathfinder was registered to James Smith. His former wife, Lisa Smith, was in possession of the vehicle prior to, during and following the night of the incident. Lisa Smith testified that she did not know the defendant and did not give him permission to enter the vehicle.

The defendant mistakenly relies on the distinction between legal ownership and rightful possession to sustain his argument. For purposes of our criminal statutory scheme, however, that is a distinction without a difference. The defendant is correct that James Smith was the legal owner of the vehicle. There was testimony presented, however, establishing that Lisa Smith was in rightful possession of the vehicle prior to, during and following the incident. Neither the burglary nor the criminal mischief statute defines “owner.” In seeking guidance on the definition of “owner,” we find General Statutes § 53a-118 (a) (5) to be instructive. Section 53a-118 (a) (5) defines owner as “any person who has a right to possession superior to that of a taker, obtainer or withholder.” There is ample support in the record to justify the court’s finding, on the basis of the direct testimony of Lisa Smith, that the defendant did not have her consent to enter the vehicle. The present case is thus distinguishable from the case cited by the defendant, State v. Godfrey, 39 Conn. App. 1, 663 A.2d 1117 (1995) , appeal dismissed, 236 Conn. 904, 670 A.2d 1305 (1996) , in which there was no direct evidence that the defendant did not have the permission of the owner or person in rightful possession to enter the vehicle. Id., 7.

With respect to all of the defendant’s sufficiency challenges, we note that “[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn. App. 658, 666-67, 897 A.2d 710 (2006). Accordingly, we conclude that the evidence was sufficient to support the defendant’s conviction of attempt to commit larceny in the sixth degree, attempt to commit burglary in the third degree and criminal mischief in the third degree and, therefore, that the court was not obligated to render a judgment of acquittal with respect to those charges.

II

The defendant next claims that the court improperly instructed the jury on an essential element of larceny in the sixth degree. Specifically, the defendant argues that the court should have instructed the jury that the state had to prove beyond a reasonable doubt that the coats had some monetary value pursuant to § 53a-121 (a) (3). We are not persuaded.

The defendant concedes that he did not properly preserve his claim for appeal by taking exception to the charge as given. See Practice Book § 42-16. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).* 1* We will review the defendant’s claim pursuant to Golding because the record is adequate, and an improper instruction on an element of an offense is of constitutional magnitude. See State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

The following additional facts are necessary for our review of the defendant’s claim. During its charge to the jury with respect to larceny, the court gave instructions on the essential elements of larceny, which included setting forth the state’s burden of proof. After that recitation, the court provided further instruction concerning the degree of the larceny. “Now, in this case it’s—the grade is in the sixth degree, and the law sets a standard. In this particular case, the standard is not at all very complicated because it appears from the evidence, if you accept the evidence as it has been presented when you cannot determine the standards that the statutes allow for setting forth the value of the property—when you cannot determine, using those standards, that the state has proven that value beyond a reasonable doubt, you must set the value at less than $50.” The court then stated: “If you find the defendant is guilty of larceny, as I said, you go on to consider the value, and the value, as I said, based on the evidence we’ve heard and the standards that would not really apply in this case because nothing was really recovered, [the] law allows you to set that value at $50 or less, which falls within the parameters of larceny in the sixth degree, which is $250 or less.”

Our standard of review with respect to a constitutional challenge to a jury instruction is well established. “[T]he standard of review is whether it is reasonably possible that the jury [was] misled. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citation omitted; internal quotation marks omitted.) State v. Straub, supra, 90 Conn. App. 152-53. We note that “[j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Atkin v. Marko, 83 Conn. App. 279, 283, 849 A.2d 399 (2004).

In the present case, the court instructed the jury on the essential elements of larceny in the sixth degree. The defendant does not challenge the court’s charge with respect to its recitation of the essential elements of larceny. Rather, the defendant claims that the court failed to instruct the jury that the state had to prove beyond a reasonable doubt the value of the coats pursuant to § 53a-121 (a) (3). Because an exact monetary value had not been determined with respect to the coats, the court properly instructed the jury that it could set the value at less than $50 pursuant to § 53a-121 (a) (3). Although the court first used the word “must” with respect to the value assigned to the property, it then immediately repeated the instruction using the word “allow,” thereby correcting its earlier instruction and not creating a mandatory presumption as suggested by the defendant. Moreover, as the state notes correctly, during the charge on larceny in the sixth degree, the court made numerous references to the state’s burden to prove the elements of the crime charged beyond a reasonable doubt. The defendant challenges the technical accuracy of a portion of the language that the court used in conveying those principles to the jury, language that at the time of trial, he did not perceive to be so damaging as to require an exception or request for an additional instruction. See State v. Sullivan, 11 Conn. App. 80, 86, 525 A.2d 1353 (1987). The court’s charge, when read as a whole, did not mislead the jury by relieving the state of its burden of proving all of the essential elements of the crime charged beyond a reasonable doubt. We conclude, therefore, that this claim fails to meet Golding’s third prong.

Ill

The defendant next claims that § 53a-125b (a) is unconstitutionally vague as applied to the facts of this case. The defendant failed to raise this claim at trial and again seeks review under State v. Golding, supra, 213 Conn. 239-40. The record is adequate for our review, and a claim that a statute is unconstitutionally vague implicates a defendant’s fundamental due process right to fair warning. State v. Coleman, 83 Conn. App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). We decline to review the claim, however, because it is briefed inadequately.

We begin by setting forth the relevant legal principles. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties.” (Citations omitted; internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 158-59, 778 A.2d 955 (2001). “For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue.” (Internal quotation marks omitted.) State v. Ortiz, 83 Conn. App. 142, 158, 848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).

Although the defendant frames his argument as a void for vagueness claim, he does not challenge that he was denied “the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.” (Internal quotation marks omitted.) Id., 157. In fact, aside from citing State v. Hamlin, 90 Conn. App. 445, 878 A.2d 374, cert. denied, 276 Conn. 914, 888 A.2d 86 (2005), for the void for vagueness doctrine, the defendant cites no relevant facts and provides no legal analysis in support of his vagueness challenge. Accordingly, we decline to review the defendant’s claim because it has been briefed inadequately. See Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856 A.2d 358 (2004) (“We consistently have held that [a]naiysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]).

IV

The defendant’s final claim is that § 53a-121 (a) (3) unconstitutionally relieves the state of its burden of proof under the larceny statute and, thus, violates his right to due process as guaranteed to him by the state and federal constitutions. The defendant seeks Golding review of this unpreserved claim. As stated previously, a constitutional challenge to a statute warrants such review. We will not review the claim, however, because it has been briefed inadequately.

“The constitutionality of a statute presents a question of law over which our review is plenary. ... It is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute’s constitutionality .... Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.” (Citation omitted; internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 500, 915 A.2d 822 (2007); see also State v. Matos, 240 Conn. 743, 748, 694 A.2d 775 (1997).

“The fourteenth amendment to the United States constitution provides that the State [shall not] deprive any person of life, liberty, or property, without due process of law .... In order to prevail on his due process claim, the [defendant] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law.” (Internal quotation marks omitted.) Tedesco v. Stamford, 222 Conn. 233, 241, 610 A.2d 574 (1992).

As in his previous claim, the defendant again frames his argument as a constitutional challenge to a statute, yet fails to support that argument with any relevant facts or legal analysis. The defendant seems to be challenging whether the court’s instruction with respect to § 53a-121 (a) (3) imposed a mandatory presumption but provides no legal analysis in support of such a challenge. See Knapp v. Knapp, supra, 270 Conn. 823 n.8. We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-117 (a) provides in relevant part: “A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that such person has a right to do so, such person: (1) Intentionally or recklessly (A) damages tangible property of another . . .

       General Statutes § l-2z permits such guidance to be sought when determining the meaning of a statute. Section l-2z provides in relevant part: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. ...”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:
      (1) the record is adequate to review the alleged claim of error; (2) the claim
      is of constitutional magnitude alleging the violation of a fundamental right;
      (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001); see also State v. Estrella, 277 Conn. 458, 468 n.15, 893 A.2d 348 (2006).

       General Statutes § 53a-121 (a) (3) provides: “When the value of property or services cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars.”

       We note that the defendant purports to invoke the provisions of the Connecticut constitution. He does not, however, provide any specific, independent support for his state constitutional argument. We reiterate that “we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 518 n. 1, 853 A.2d 105 (2004). Accordingly, we confine our analysis to the defendant’s federal constitutional claim. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).