author: PELLEGRINO, J.

text:
    BRANDON GARCIA v. COMMISSIONER OF CORRECTION
    (AC 33827)
    Beach, Alvord and Pellegrino, Js.

      Argued October 23, 2013
    officially released January 21, 2014

      David B. Rozwaski, assigned counsel, for the appellant (petitioner).

      Rocco A. Chiarenza, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Brandon Garcia, appeals from the summary judgment rendered by the habeas court in favor of the respondent, the Commissioner of Correction. The petitioner claims that the habeas court erred in concluding that the United States Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), does not apply retroactively. We agree with the court that Gant does not apply retroactively to the petitioner’s habeas trial, and affirm the summary judgment.

The jury in the petitioner’s underlying criminal trial reasonably could have found the following facts, as detailed by this court in the petitioner’s direct appeal. “On June 22, 2004, undercover members of the Waterbury police tactical narcotics team . . . were surveil-ling the parking lot by the Shell gasoline station and convenience store .... The police had received numerous complaints about open drug dealing at this location and had made several narcotics arrests there previously. . . .

“Shortly after 9:30 p.m., the officers noticed Matthew Jenkins sitting in a Ford Explorer .... Minutes later, the [petitioner] arrived in a black Lexus. When Jenkins sounded his vehicle’s horn, the [petitioner] acknowledged him. The [petitioner] parked, exited his vehicle and walked to the Explorer, carrying a white shopping bag. At 9:42 p.m., the officers observed the [petitioner] get into the Explorer, remove a smaller bag from the shopping bag and place it next to Jenkins. They observed Jenkins hand the [petitioner] a roll of cash. The [petitioner] then exited the Explorer and headed toward the convenience store. [One of the officers] arrested and searched the [petitioner], finding marijuana on his person, $2650 in one of his pockets and $570 in another pocket. . . .

“Jenkins, meanwhile, attempted to escape in his Explorer. When [two of the officers] blocked Jenkins’ exit with their vehicles, Jenkins fled on foot. From [Jenkins’] Explorer, the officers recovered one bag containing 2.97 ounces of cocaine and another bag containing one half ounce of marijuana. Jenkins was apprehended subsequently. He testified at trial that when he telephoned the [petitioner] to arrange his purchase of three ounces of cocaine for $2400 and one half ounce of marijuana for $250, the [petitioner] suggested they meet at the Shell station parking lot. Jenkins also testified that he bought drugs from the [petitioner] in the manner described by the undercover officers, exchanging cash for cocaine and marijuana.

“At the arrest scene, [the officer assigned to drive the petitioner’s vehicle to the police station] quickly examined the [petitioner’s] vehicle to ensure that nothing in it would be disturbed or cause any danger dining transit. On the rear seat, he discovered a shoe box containing cash. In the trunk of the car, he discovered another shoe box containing cash. . . . [The officer] drove the car to the station, logged it in as evidence and conducted an inventory search of its contents. The inventory recovered included the boxes of cash from the rear seat and trunk, which contained $10,510 and $4000, respectively.” State v. Garcia, 108 Conn. App. 533, 535-37, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008).

After a jury trial, the petitioner was convicted of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of marijuana with intent to sell in violation of General Statutes § 2 la-277, and possession of marijuana with intent to sell within 1500 feet of a school in violation of § 21a-278a (b). Id., 537. On direct appeal to this court, the petitioner argued that the court erred in part by admitting into evidence any cash seized from his vehicle because it was either irrelevant or obtained without a warrant in violation of his rights pursuant to the fourth amendment to the United States, constitution. Id., 537, 541. We affirmed the conviction, holding that the cash seized was relevant, not overly prejudicial, and obtained in accordance with constitutional guarantees. Id., 539, 541, 546, 549-50. Our Supreme Court denied certification to appeal. State v. Garcia, 289 Conn. 916, 957 A.2d 880 (2008).

The petitioner filed a petition for a writ of habeas corpus on August 13, 2008, arguing that Arizona v. Gant, supra, 556 U.S. 332, should apply retroactively to his habeas trial. He farther contends that applying Gant to the facts of the present case would require a conclusion that the search of his car was unconstitutional and, therefore, he is entitled to a new trial. The petitioner and the respondent filed cross motions for summary judgment. The court, noting that the retroac-tivity issue was dispositive, held that the rule announced in Gant is not retroactive and rendered summary judgment in favor of the respondent. The habeas court granted the petitioner’s petition for certification to appeal. This appeal followed.

“Our standard of review is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct . . . .” (Internal quotation marks omitted.) J.P. Alexandre, LLC v. Egbuna, 137 Conn. App. 340, 346, 49 A.3d 222, cert. denied, 307 Conn. 913, 53 A.3d 1000 (2012). The issue of whether a judicial decision is retroactive is a question of law, and our review is plenary. See Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002).

I

We briefly summarize the relevant precedent regarding law enforcement’s ability to search a motor vehicle incident to the arrest of an occupant. In the seminal case of Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the United States Supreme Court held that when police make an arrest, it is reasonable to “search . . . the arrestee’s person and the area within his immediate control . . . .” (Internal quotation marks omitted.) When the police lawfully arrest the occupant of a motor vehicle, officers “may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile . . . [and] any containers found within the passenger compartment . . . .” (Footnotes omitted.) New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). In line with the majority of jurisdictions, we applied Belton broadly; see Arizona v. Gant, supra, 556 U.S. 341-43; permitting “a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area.” State v. Badgett, 200 Conn. 412, 425, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 273 (1986); but see State v. Waller, 223 Conn. 283, 292, 612 A.2d 1189 (1992) (state constitution requires that arrestee be detained at scene at time of vehicle search). Faced with the fact that courts had used Belton to perpetuate the “fiction . . . that the interior of the car is always within the immediate control of an arrestee who has recently been, in the car”; (emphasis in original; internal quotation marks omitted) Arizona v. Gant, supra, 341; the United States Supreme Court revisited the contours of the Belton rule in Gant.

In Gant, the defendant was handcuffed and secured in a police car for the crime of driving with a suspended license. Id., 336, 344. A subsequent search of the defendant’s vehicle uncovered cocaine and a firearm. Id., 336. On appeal, the state argued, pursuant to Belton, that the validity of a vehicle search incident to the arrest of a recent occupant of the vehicle does not depend on whether the occupant could gain access to the interior of the vehicle at the time of the search. Id., 344. The court declined to endorse the state’s broad interpretation of Belton, and held: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id., 351. The petitioner argues that if the holding in Gant was applied retroactively to his habeas petition, he is entitled to relief because the search of his vehicle was invalid pursuant to the fourth amendment to the federal constitution. We disagree with the petitioner with respect to the threshold issue. We conclude that Gant does not apply retroactively, and affirm the judgment of the habeas court.

II

The question of retroactivity has been decided in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and its progeny. “The threshold question is whether the rule of law under which the petitioner seeks relief is procedural or substantive in nature.” Luurtsema v. Commissioner of Correction, 299 Conn. 740, 753, 12 A.3d 817 (2011). If the rule is substantive, it generally applies retroactively. Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). A procedural rule, on the other hand, is only retroactive if it is considered “watershed.” (Internal quotation marks omitted.) Id., 352. We conclude that, according to the Teague framework, Gant is not retroactive.

A

A rule is substantive in nature, and generally applies retroactively, when the judicial decision announcing the rule narrows the scope of the conduct punishable under a criminal statute or is a “constitutional [determination] that place [s] particular conduct or persons covered by the statute beyond the State’s power to punish . . . .” (Internal quotation marks omitted.) State v. Henderson,, 130 Conn. App. 435, 447, 24 A.3d 35 (2011), appeals dismissed, 308 Conn. 702, 66 A.3d 847 (2013) (certification improvidently granted). The rule announced in Gant applies to the conduct of police when executing a search. Arizona v. Gant, supra, 556 U.S. 351. It is therefore not substantive because it does not narrow the conduct or class of persons punishable pursuant to a criminal statute. State v. Henderson, supra, 447; see, e.g., Luurtsema v. Commissioner of Correction, supra, 299 Conn. 746-47, 753 (rule narrowing conduct punishable pursuant to kidnapping statute substantive).

B

Rules that are not substantive under Teague are deemed procedural. See Schriro v. Summerlin, supra, 642 U.S. 362 n.4. Procedural rules do not apply retroactively to a habeas trial unless the rule is deemed “watershed,” meaning the rule: (1) “[is] necessary to prevent an impermissibly large risk of an inaccurate conviction”; and (2) “alterfs] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” (Citations omitted; internal quotation marks omitted.) Whorton v. Bockting, 549 U.S. 406, 418, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007); accord State v. Henderson, supra, 130 Conn. App. 447. These watershed procedural rules are “so central to an accurate determination of innocence or guilt ... it [is] unlikely that many such components of basic due process have yet to emerge.” (Internal quotation marks omitted.) Duperry v. Solnit, supra, 261 Conn. 326. In order to be classified as watershed, and therefore apply retroactively, the procedural rule must both improve the accuracy of a trial and ensure the fundamental fairness of criminal proceedings. Sawyer v. Smith, 497 U.S. 227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).

In Teague, the Supreme Court stated that the paradigm watershed procedural rule is the right to counsel pursuant to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Teague v. Lane, supra, 489 U.S. 311-12; see also Whorton v. Bockting, supra, 549 U.S. 419. A procedural rule does not rise to the watershed level unless it applies to the criminal justice system generally, and not just a narrow selection of cases. See Teague v. Lane, supra, 314-15 (“the fair cross section requirement [does] not rest on the premise that every criminal trial, or any particular trial, [is] necessarily unfair because it [is] not conducted in accordance with what we determined to be the requirements of the Sixth Amendment” [internal quotation marks omitted]).

C

With these principles in mind, we consider whether the rule announced in Gant is a watershed rule of criminal procedure, and whether the rule improves the accuracy and ensures the fundamental fairness of a trial. The issue in Gant was whether a warrantless vehicle search was reasonable when the arrestee was secured and could not access potential weapons or destroy evidence still in the vehicle. See Arizona v. Gant, supra, 656 U.S. 336. Gant concluded that a search of a vehicle under these circumstances is unreasonable and thus violates the fourth amendment. Id., 351.

“[T]he essential purpose of the Fourth Amendment [is] to shield the citizen from unwarranted intrusions into his privacy.” (Internal quotation marks omitted.) Payton v. New York, 445 U.S. 573, 588 n.26, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). The Gant rule and the fourth amendment do not ensure an accurate trial, but restrict the government’s authority to invade an individual’s privacy. See United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (“[t]he wrong condemned by the [Fourth] Amendment is fully accomplished by the unlawful search and seizure itself’ [internal quotation marks omitted]). Moreover, evidence obtained from a search that violates the fourth amendment does not automatically result in an inaccurate verdict which requires a new trial. State v. Esarey, 308 Conn. 819, 832, 67 A.3d 1001 (2013) (fourth amendment violations subject to harmless error). This leads to the conclusion that the accuracy of any trial is not necessarily determined by the fact that evidence was seized in violation of Gant.

Similarly, the rule announced in Gant does not alter our understanding of the bedrock procedural elements essential to a fair trial. The Gant decision was justified by the important, and constitutionally protected, privacy rights of motorists. Arizona v. Gant, supra, 556 U.S. 344-45. The court reasoned that vehicle searches incident to arrest “[implicate] . . . the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.” Id., 345. “[T]he Fourth Amendment protects people, not places . . . and wherever an individual may harbor a reasonable expectation of privacy ... he is entitled to be free from unreasonable governmental intrusion.” (Citations omitted; internal quotation marks omitted.) Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). On the basis of these basic principles, we conclude that the fourth amendment does not protect the fairness of a criminal proceeding; it “safeguard[s] the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Gant therefore does not change our understanding of the bedrock procedural elements that ensure a fair trial. See Whorton v. Bockting, supra, 649 U.S. 418. We conclude that the rule announced in Gant is not essential to either the accuracy or fairness of a trial, and therefore is not a watershed procedural rule as contemplated by Teague and its progeny. We hold that Gant is not retroactive and does not apply to the petitioner’s habeas proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner additionally claimed that his rights pursuant to article first, § 7, of the Connecticut constitution were violated. State v. Garcia, supra, 108 Conn. App. 541. This claim was deemed abandoned, however, because the petitioner did not provide a separate state constitutional analysis of that claim. Id., 541 n.3. Also, the petitioner claimed unsuccessfully that the court lacked jurisdiction to order him to forfeit the cash that was seized. Id., 550.

       Justice Scalia noted that “[w]here no arrest is made . . . officers may search the car if they reasonably believe the suspect is dangerous and . . . may gain immediate control of weapons. Michigan v. Long, 463 U.S. 1032, 1049 [103 S. Ct. 3469, 77 L. Ed. 2d 1201] (1983). In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” (Internal quotation marks omitted.) Arizona v. Gant, supra, 556 U.S. 352 (Scalia, J., concurring).

       The petitioner asks this court to “apply Gant ... in accordance with [the ruling in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008)] that Teague restrictions should not be applied to state habeas proceedings regarding state convictions.” In support of this proposition, the petitioner cites State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), and argues that “state constitutional provisions can afford individuals greater protection than federal constitutional provisions. . . . [I]t is well recognized that Connecticut constitutional protections are greater than those of the fourth amendment to the [federal] constitution.”
      The court in Danforth v. Minnesota, supra, 552 U.S. 282, held that “the Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague.” Our Supreme Court interpreted this holding to mean “that the restrictions Teague imposes on the fully retroactive application of new procedural rules are not binding on the states. ” Luurtsema v. Commissioner of Correction, 299 Conn. 740, 753 n.14, 12 A.3d 817 (2011).
      The court in Luurtsema did not overrule Teague’s application in Connecticut. It only recognized that the United States Supreme Court provides that states are “free to determine whether to follow the federal courts’ rulings on retroactivity or to fashion rules which respond to the unique concerns of that state.” (tatemal quotation marks omitted.) Danforth v. Minnesota, supra, 552 U.S. 282; Luurtsema v. Commissioner of Correction, supra, 299 Conn. 753 n.14. Our Supreme Court, however, neither engaged in a Teague analysis nor overruled its application. See Luurtsema v. Commissioner of Correction, supra, 753 n.14.
      The current state of the law in Connecticut, therefore, is that the retroactive application of new procedural rules is analyzed under the Teague framework. See id.; see also Duperry v. Solnit, supra, 261 Conn. 318. Regardless of whether our state constitution’s reach is greater than the federal constitution, “our obligation is to follow [the Teague framework] until [our] Supreme Court overrules or limits it. It is axiomatic that the trial court and this court are without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions.” West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 24, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004). We therefore apply Teague accordingly.

       Before reaching the issue of whether the Gant rule is substantive or procedural, the petitioner argued to the habeas court that Teague is inapplicable because Gant did not announce a “new rule,” but instead was a mere clarification of preexisting law. The petitioner failed to raise this claim either in his brief or at oral argument before this court. This claim is therefore abandoned, and we analyze Gant as announcing a new rule. See Terese B. v. Commissioner of Children & Families, 68 Conn. App. 223, 227 n.7, 789 A.2d 1114 (2002).

       Prior decisions have considered these constitutional determinations as an exception to the general rule that procedural rules are not retroactive. See, e.g., Duperry v. Solnit, supra, 261 Conn. 324. The United States Supreme Court clarified, however, that these are “more accurately characterized as substantive rules not subject to the bar.” Schriro v. Summerlin, supra, 542 U.S. 352 n.4.

       Among the procedural rules that the Supreme Court has considered, yet determined not to be watershed, are: the rule that exposing a defendant to a noncapital sentence enhancement twice violates the double jeopardy clause, the rule that the state’s failure to give adequate notice of evidence it intends to use in a petitioner’s capital sentence proceeding violates due process, the rule that failure to instruct the jury that it could not find a defendant guilty of murder if it found a mitigating mental state violates due process, the rule that the eighth amendment bars imposition of the death penalty if a jury is led to believe that the ultimate decision rests elsewhere, the rule that pursuant to the fifth amendment, the police cannot question a suspect after he asserts the right to counsel in the context of a separate investigation, and the rule that the sixth amendment fair cross section requirement applies to the petit jury. United States v. Mandanici, 205 F.3d 519, 529 (2d Cir.), cert. denied, 531 U.S. 879, 121 S. Ct. 190, 148 L. Ed. 2d 132 (2000).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    NIKOLA NIKOLA v. 2938 FAIRFIELD, LLC, ET AL.
    (AC 36076)
    Beach, Alvord and Bear, Js.

      Submitted on briefs October 11, 2013
    officially released January 21, 2014

      Daniel Shepro, filed a brief for the appellants (named defendant et al.),

      Eugene D. Micci, filed a brief for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendants, 2938 Fairfield, LLC (Fair-field), and Naomi Drabkin, appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Nikola Nikola. The defendants claim that the court erred in (1) concluding that the plaintiff was the holder of the note and mortgage from Fairfield, (2) finding that the mortgage exception to the úsury statute applied, and (3) finding the debt to be in excess of $140,000. We affirm the judgment of the trial court.

The following facts, as found by the trial court and revealed by the record, and procedural history are relevant to this appeal. Fairfield was a limited liability company that owned real property located at 2936-2938 Fairfield Avenue in Bridgeport (Bridgeport property). On July 1, 2000, Fairfield executed and delivered to Drabkin a note in the amount of $136,000 (note). To secure the note, Fairfield executed and delivered to Drabkin a mortgage on the Bridgeport property. At the time the present action was commenced, Fairfield had defaulted on its note, and Drabkin had accelerated the debt and had begun a foreclosure action against Fairfield.

In October, 2007, the plaintiff loaned $140,000 to Drabkin for one year at 13 percent interest per annum; that interest plus “points” were prepaid by Drabkin. As security for the loan, Drabkin assigned to the plaintiff “the first $140,000 plus costs of all rights, title and interest” in the July, 2000 mortgage note on the Bridgeport property. After the due date, the plaintiff demanded payment of the principal of $140,000, plus 13 percent interest accruing after the first year from Drabkin, but Drabkin did not make any payment.

The plaintiff commenced the present action, seeking, inter alia, money damages as to the note and a judgment of foreclosure as to Fairfield. The plaintiff alleged that Drabkin may claim an interest in the property, but that any right Drabkin had in the property was subsequent to that of the plaintiff. The complaint also stated that the plaintiff, as holder of the assigned mortgage and note, accelerated the balance due on the note and declared the note due in full, plus interest and costs.

In May, 2012, the court, Hon. Richard P. Gilardi, judge trial referee, found that Drabkin was in default as to the assigned mortgage, and that the plaintiff, as holder of the assigned mortgage note, justifiably declared the note to be due. The court found that the plaintiff had standing to pursue the foreclosure action against Fairfield. The court further found that any interest Drabkin may have in the property was subordinate to the first $140,000, plus interest and costs, which is the portion of her interests in the note and mortgage that were assigned to the plaintiff. The court awarded the plaintiff a judgment of foreclosure as to Fairfield and money damages as to Drabkin. The court assigned the matter to the mortgage foreclosure docket for estab-hshing property values, costs, fees, expenses and schedules, plus orders necessary to enforce the plaintiffs right to damages from Drabkin for any deficit. In its articulation, the court reiterated that it had found that the plaintiff had lent Drabkin $140,000, plus interest and that Drabkin assigned all right, title and interest in the mortgage note and deed from Fairfield to the plaintiff. It stated that this assignment to the plaintiff was valid.

In September, 2012, Hon. Howard T. Owens, Jr., judge trial referee, rendered a judgment of foreclosure by sale with a debt of $206,794, plus costs and fees, with a sale date of November 17, 2012. This appeal followed.

I

The defendants first claim that the court erred in concluding that the plaintiff was the holder of the note and mortgage from Fairfield. We disagree.

“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. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59, 66, 940 A.2d 878 (2008).

The joint stipulation of facts, signed by both parties, states that Drabkin assigned the first $140,000, plus costs, of her rights, title and interest in the mortgage note on the Bridgeport property. Attached to the stipulation was a copy of the “partial assignment of mortgage” that states that Drabkin assigned to the plaintiff “the first $140,000.00 plus costs, if any, of her rights, title and interest in a certain promissory note [on the Bridgeport property] . . . with a mortgage balance of $185,000.00 as of [October, 1, 2007] . . . .” The finding of the court, Hon. Richard P. Gilardi, judge trial referee, that “as holder of the assigned mortgage note, the plaintiff justifiably accelerated the balance due,” was not clearly erroneous.

II

The defendants’ next claim pertains to the court’s finding regarding a defense of usury. The defendants filed a motion for articulation regarding their defense of usury, which the court granted. The court articulated that Fairfield did not prove its special defense claiming that the initial loan to Drabkin was usurious. The court stated that although the interest rate of 13 percent on the mortgage note exceeded the legal limit of 12 percent set forth in General Statutes § 37-4, that section, pursuant to General Statutes § 37-9 (3), does not apply to mortgages on real property. The court further noted that Fairfield was neither the borrower nor the lender of the note and, therefore, lacked standing to question whether it was usurious.

The defendants claim that the court’s finding that the mortgage exception in § 37-9 (3) applied was erroneous. We need not address this claim. Fairfield’s defense of usury pertains to the transaction between Drabkin and the plaintiff, in which the plaintiff loaned Drabkin $140,000, and Drabkin assigned the plaintiff her rights in the note that was secured by the Bridgeport property. Whether that transaction is usurious does not affect the plaintiffs ability to foreclose on his rights in the mortgage note as against Fairfield.

Similarly, the transaction between the plaintiff and Drabkin was secured by a mortgage on real property, and the amount involved exceeded $5000. The transaction was exempted by § 37-9 (3). See Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 192, 708 A.2d 1371 (1998).

Ill

The defendants’ last claim is that the court, in its September, 2012 decision, erred in finding the debt to be in excess of $140,000 because Drabkin only assigned to the plaintiff the first $140,000 of the mortgage, plus costs. We disagree.

“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.) Barber v. Skip Barber Racing School, LLC, supra, 106 Conn. App. 66.

The plaintiff submitted an affidavit of debt, which stated the debt to be $206,794. The court accepted this figure and found the debt to be $206,794. The court, as the trier of fact, was free to accept this evidence. See Lidman v. Nugent, 59 Conn. App. 43, 46, 755 A.2d 378 (2000). The debt was owed by Drabkin, even if the assigned security interest may be insufficient to secure the full amount of the debt. The court’s finding in this regard was not clearly erroneous.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The U.S. Small Business Administration was also named as a defendant but is not involved in this appeal. Therefore, the term “defendants” will refer to Fairfield and Drabkin only.

       The parties submitted to the trial court a stipulation of facts, with attached exhibits, on which the court based its findings.

       Schedule D, attached to the stipulation of facts, is entitled “Partial Assignment of Mortgage.” By virtue of the assignment, Drabkin assigned to the plaintiff the “first $140,000.00 plus costs, if any” in the Fairfield “mortgage note.”

       Although the note provided that Drabkin would pay principal, interest and costs, the assignment of the security interest by Drabkin was of “the first $140,000.00 plus costs” in the mortgage note. Thus, the plaintiff was not secured for any interest that was unpaid.

       By virtue of the assignment, the plaintiff became the holder of the note and, as such, had standing to pursue the foreclosure action against Fairfield. See RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 228-32, 32 A.3d 307 (2011) (holder of negotiable promissory note secured by mortgage is presumed owner of debt and unless presumption is rebutted has standing to bring foreclosure action against maker of note).
      The assignment, as noted, was of the “mortgage note.” The term “mortgage note” has been used to describe the note secured by the mortgage. See, e.g., Bankers Trust Co. of California, N.A. v. Vaneck, 95 Conn. App. 390, 393-94, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006); see also Black’s Law Dictionary (9th Ed. 2009) p. 1162 (defining “mortgage note” as “[a] note evidencing a loan for which real property has been offered as security”). The court’s apparent interpretation of the term to include the note is not, then, clearly erroneous.

       The defendants point out that the stipulation also states that both the plaintiff and Drabkin were holders of the note. This is not inconsistent with the court’s finding that the plaintiff, as holder of the note, justifiably accelerated the balance due.

       General Statutes § 37-4 provides: “No person and no firm or corporation or agent thereof, other than a pawnbroker as provided in section 21-44, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.” General Statutes § 37-9 provides in relevant part: “The provisions of sections 37-4 . . . shall not affect ... (3) any bona fide mortgage of real property for a sum in excess of five thousand dollars . . . .”

       The court found the debt to be $206,794, plus costs and fees.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. JOSE R. ROSADO
    (AC 34533)
    Alvord, Bear and Harper, Js.
    Argued October 15, 2013
    officially released January 21, 2014

      Jeanne M. Zulick, assigned counsel, for the appellant (defendant).

      Kathryn W. Bare, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Jose R. Rosado, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 and 53a-100aa (a) (2), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his convictions as to all three offenses, and (2) the court improperly failed to respond to the jury’s request for a clarifying instruction on the crime of conspiracy. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 10 p.m. on November 12, 2009, Jose Guerrero was standing outside of an apartment on Cannon Road in East Hartford talking on his cell phone. Jose Guerrero was in the process of moving into the apartment, which was shared by his brother, Carlos Guerrero, and his cousin, Urias Abrego Vasques. He saw two Hispanic men, who had been walking back and forth in front of the apartment, enter the building. Carlos Guerrero and Vasques were home at that time. They each had separate bedrooms, and the two Hispanic men forced their way into Carlos Guerrero’s bedroom. One of the men was wearing a white jacket with stripes, a white and red mask, a white baseball cap and an orange wig. The other man was dressed in black and was wearing a black ski mask with a large opening around the eyes. Both men had weapons; the man in white was carrying a knife, and the man in black was armed with a gun. During a struggle with the assailants, Carlos Guerrero was hit on the head with the gun, cut on his neck by the knife and thrown to the floor. The men took his wallet, which contained his money, some receipts and his brother’s identification card.

Vasques heard noise coming from the other bedroom and a voice saying that he didn’t have any money. Vasques opened his bedroom door and saw the man with the gun coming toward him. He recognized the eyes of the person behind the black ski mask because that person was his neighbor and the brother of his friend. Vasques shut the door and locked it, and then he jumped out of his bedroom window and ran down the street. A police officer happened to be in the area investigating an unrelated incident, and Vasques ran up to him and reported the incident.

When the two assailants left the apartment, Carlos Guerrero ran out of the apartment and followed them. Jose Guerrero, still outside, saw his brother chasing the men and also ran after them. At one point, one of the men pointed a gun at Carlos Guerrero, but he then put it away and kept running. Jose Guerrero pursued the men until the police stopped him. Carlos Guerrero continued the pursuit until one of the men dropped his white baseball cap, and Carlos Guererro stopped to retrieve it. He then located a police officer and gave him the cap.

Vasques went to the East Hartford police station that evening to give a statement. On the basis of the information he provided, the police prepared a photographic array of possible suspects. Vasques identified the defendant as the assailant who wore the black ski mask. When Carlos Guerrero was interviewed by the police that evening, he drew a map showing the path taken by the assailants as he chased them.

That same evening, Sergeant Steven Syme of the East Hartford Police Department was dispatched to another apartment complex on Cannon Road after receiving information that one of the suspects might five at that location. As Syme approached the building, he heard a woman in one of the apartments arguing on the telephone by an open window. He discovered that she was in the apartment thought to be occupied by the suspect. Syme approached her and determined that she was Vicky Rosado, who is the defendant’s sister. Vicky Rosado told Syme that she lived in the apartment with her brother, but she said that her brother’s name was “Rueben Robot.” The defendant was not in the apartment at that time.

Detective Ellen Stoldt also was dispatched to Cannon Road that evening for the purpose of searching the area surrounding the crime scene for evidence connected with the armed invasion. It was after midnight when she located a long sleeved black shirt, a black ski mask, a white sweatshirt with printing on it and a wig along the route taken by the assailants as they fled. Stoldt made the decision to return to that location the following day during daylight hours to search for additional evidence that she might have overlooked during the initial search. When she returned, she discovered a wallet, an identification card and several receipts. Stoldt continued her investigation by interviewing Vasques, Vicky Rosado and Kevin Saninocencio, a person who supposedly had been at Vicky Rosado’s apartment on the night of the incident.

From the physical evidence and the interviews, the police developed a list of potential suspects that included the defendant, Saninocencio and Jose Flores. Jose Flores, also known as Chaio, was never interviewed because he left for Puerto Rico shortly after the incident. The defendant was arrested in December, 2009, and transported to the East Hartford Police Department. He voluntarily gave a statement to Stoldt about the evening in question. He told her that he had been living with his sister and that he was at her apartment when Chaio arrived carrying a book bag. Chaio pulled a gun from the bag and said that he wanted to rob “the Mexican dudes up the street.” The defendant told Stoldt that he left the apartment while Chaio was still there and that he spent the rest of the evening at a friend’s house. He said that he learned the next day that “the Mexican dudes up the street” were robbed the night before. The defendant also told Stoldt that the details of that night were “vague” because he had been “drunk” when everything happened. In his written statement, the defendant stated: “I drink a lot, and I am usually drunk. If I did do this robbery, it was during a time that I was very drunk, and I can’t remember it.”

The case was tried on October 31, November 1 and 2, 2011. Dining the trial, the state’s witnesses included Jose Guerrero, Carlos Guerrero, Vasques, Vicky Rosado, Saninocencio, police officers, investigators and forensic experts. Vicky Rosado testified that at approximately 6 p.m. on November 12, 2009, Chaio, the defendant and two other men were at her apartment as she was getting ready to go out for the evening. Before she left, she saw the defendant and Chaio having a conversation: “[T]hey were just whispering . . . .” Later that evening, after she returned to the apartment, the police arrived, and she let them search the apartment. Subsequently, she was asked to come to the police station to give a statement. While there, she was shown a ski mask, a white sweatshirt with print on it, a wig, a black T-shirt and a white hat. She told the police that she recognized the items as items from her home. She said that the Halloween wig had been in her daughter’s playbox, the T-shirt looked like the defendant’s T-shirt, and the white sweatshirt looked like her friend’s sweatshirt.

At trial, Carlos Guerrero identified the wallet, receipts and his brother’s identification card that had been found by Stoldt. Saninocencio testified that he had been at Vicky Rosado’s apartment on the night of the incident and that he heard the defendant and Chaio “talking about doing some kind of harm.” When pressed for details, he said that they were “planning on doing something” and “[t]hat they were going to rob those people.” He further testified that Chaio was wearing a white sweater and a wig.

The state’s final witness was Eric Carita, a forensic science examiner in the DNA unit at the state’s forensic science laboratory. Carita testified that the defendant was a contributor to the DNA profile obtained from the swabbing of the inside rim of the white baseball cap that had been retrieved by Carlos Guerrero from one of the assailants. Further, the defendant was a contributor to the DNA profile obtained from the swabbing of the inside of the black ski mask.

Following the trial, the jury found the defendant guilty of conspiracy to commit home invasion, conspiracy to commit burglary in the first degree and conspiracy to commit robbery in the first degree. The court accepted the verdict and rendered judgment accordingly. The defendant was sentenced to eight years of incarceration, followed by six years of special parole. This appeal followed.

I

The defendant’s first claim is that the evidence produced at trial was insufficient to sustain his convictions of conspiracy to commit home invasion, conspiracy to commit burglary in the first degree and conspiracy to commit robbery in the first degree. The defendant argues that “his convictions on the conspiracy counts were based on inconsistent testimony and circumstantial evidence that failed to link him to these crimes and could not possibly lead to the drawing of any reasonable inference that he entered [into] a conspiracy to commit any crime.” Specifically, he claims that there was insufficient evidence that (1) he was one of the two masked men who entered the victims’ apartment, (2) he entered into an agreement with the specific intent of committing a crime, and (3) he or a coconspirator engaged in an overt act in furtherance of a home invasion, burglary or robbery.

“We apply a two part test in reviewing sufficiency of the evidence claims. 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 .... 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.” (Internal quotation marks omitted.) State v. Jennings, 126 Conn. App. 801, 805-806, 9 A.3d 446 (2011).

“[T]he probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 552, 800 A.2d 564 (2002).

“[I]n viewing evidence which could yield contrary inferences, the [trier of fact] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the [trier of fact’s] function is to draw whatever inferences from evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Jagat, 111 Conn. App. 173, 177, 958 A.2d 206 (2008).

We first note that the defendant’s claims of insufficiency of the evidence are directed to possible conflicting testimony at trial. In other words, the defendant is challenging the credibility of the state’s witnesses. “[E]vidence is not insufficient . . . because it is conflicting or inconsistent. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Vega, 128 Conn. App. 20, 27, 17 A.3d 1060, cert. denied, 301 Conn. 919, 21 A.3d 463 (2011).

With these principles in mind, we turn to the specific elements of the offenses at issue. To establish the crime of conspiracy under § 53a-48, the state was required to prove that there was an agreement between two or more persons to engage in conduct constituting a crime and that one of the conspirators committed an overt act in furtherance of the crime agreed upon. Proof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense. See State v. Douglas, 126 Conn. App. 192, 202-203, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011). The conspired offenses in this case were home invasion, burglary in the first degree and robbery in the first degree.

We have carefully reviewed the record, including the transcripts of the trial, and we have set forth in detail the evidence that the state presented to the jury in support of the charges of conspiracy. Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence adduced at trial was more than sufficient to allow the jury to find beyond a reasonable doubt that the defendant conspired to commit home invasion, burglary in the first degree and robbery in the first degree. The testimony of the witnesses demonstrated that he agreed to commit these crimes, as defined by statute, and that overt acts were committed by him or a coconspirator in furtherance of those crimes. The defendant’s insufficiency of the evidence claim merits no further discussion.

n

The defendant’s next claim is that the trial court improperly failed to respond to the jury’s request for a clarifying instruction on the elements of the crime of conspiracy. The defendant argues that the court’s failure to follow the mandatory provisions of Practice Book § 42-27 deprived him of a fair trial. The following additional facts and procedural history are necessary for the resolution of this claim.

During the course of deliberations, the court received twelve notes from the jury that were marked as court exhibits. Several inquiries dealt with requests for copies of the jury instructions, supplies or breaks for food. A few of the notes requested a review of testimony from certain witnesses. The final note, received at 4:26 p.m. on November 7, 2011, stated that the jury had reached a verdict on all six charges. It is the note immediately preceding the final note that is at issue here, which was the note that the court received at 4:10 p.m. that day. In that note, the jury asked the court to clarify the last sentence at page sixteen of its written instructions pertaining to the crime of conspiracy.

In its charge, the court instructed the jury that all communications with the court needed to be in writing, signed and dated by the foreperson. The court also instructed the jury that because it could take some time to assemble the parties and to agree upon a response to a request, the jury “may continue deliberating if you can.” The court was discussing with counsel a response to the penultimate note regarding the conspiracy charge when it received the jury’s final note stating that it had reached a verdict. In accordance with the court’s instructions, the jury had continued to deliberate and had reached a verdict before the court could address the jury’s note requesting clarification of the language pertaining to the conspiracy charge.

The court, after receiving the final note and before bringing the jury into the courtroom, addressed counsel as follows:

“The Court: Counsel, we’ve received some notes from the jury that will be marked as court exhibits. Earlier today, we received notes in which the jurors asked for copies of the court’s instructions and magic markers, and we provided those. Then at 4:10 [p.m.], we received a note from the jury asking for clarification of the conspiracy discussions. While I was discussing that with counsel, at 4:25 p.m., we received a note from the jury saying we have a verdict on all six charges. So, absent objection, I propose that we proceed directly to receiving the verdict.
“[The Prosecutor]: Yes, Your Honor.
“[Defense Counsel]: Yes, Your Honor.
“The Court: Mark these and we’ll call the jury.”

Now, on appeal, the defendant raises for the first time his claim that the trial court was obligated to respond to the jury’s note requesting clarification of the conspiracy charge before it could proceed to a verdict. The defendant acknowledges that he did not object to the court’s proposal to proceed to a verdict at the time of trial, but he argues that the provisions of Practice Book § 42-27 are mandatory and cannot be waived by defense counsel. He seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or to prevail under the plain error doctrine. The state argues that defense counsel waived any claim regarding the handling of the note at issue when he expressly assented to the court’s proposed course of action. We agree with the state.

“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. . . . [I]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial.” (Citation omitted; internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 467, 10 A.3d 942 (2011). “Both our Supreme Court and this court have stated the principle that, when a party abandons a claim or argument before the trial court, that party waives the right to appellate review of such claim because a contrary conclusion would result in an ambush of the trial court .... [W]aiver is [t]he voluntary relinquishment or abandonment— express or implied—of a legal right or notice. ... In determining waiver, the conduct of the parties is of great importance. . . . [W]aiver may be effected by action of counsel. . . . When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal. . . . Thus, [w]aiver . . . involves the idea of assent, and assent is an act of understanding.” (Citation omitted; internal quotation marks omitted.) State v. McLaughlin, 135 Conn. App. 193, 198, 41 A.3d 694, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012).

“The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. ... In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy. . . . Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court’s order, that party waives any such claim.” (Internal quotation marks omitted.) State v. Velez, 113 Conn. App. 347, 357-58, 966 A.2d 743, cert. denied, 291 Conn. 917, 970 A.2d 729 (2009).

The reason that the objection must be raised at trial is to afford the court an opportunity to correct an allegedly improper ruling or procedure. “When we speak of correcting the claimed error, we mean when it is possible during that trial, not by ordering a new trial. We do not look with favor on parties requesting, or agreeing to, an instruction or a procedure to be followed, and later claiming that that act was improper.” (Internal quotation marks omitted.) Id., 358. “[A] defendant may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him . . . .” (Internal quotation marks omitted.) State v. Thompson, 146 Conn. App. 249, 260-61, 76 A.3d 273, cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013).

“A defendant who has waived a claim at trial . . . is not entitled to Golding review. ... [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” (Citation omitted; internal quotation marks omitted.) State v. McLaughlin, supra, 135 Conn. App. 198. Furthermore, “[a] valid waiver . . . thwarts plain error review of a claim. [The] Plain Error Rule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct.” (Internal quotation marks omitted.) State v. Velez, supra, 113 Conn. App. 361 n.8.

In the present case, the trial court, after stating on the record that it had received the jury note requesting a clarification of the conspiracy charge and the subsequent jury note indicating that the jury had reached a verdict, made the following suggestion to counsel: “So, absent objection, I propose that we proceed directly to receiving the verdict.” If defense counsel disagreed with the court’s proposal and preferred that the jury note requesting clarification be addressed, the court had given him the opportunity to express his thoughts on the matter. Defense counsel, however, raised no objection to proceeding to verdict without addressing the penultimate jury note and, in fact, affirmatively agreed to the court’s proposal. Permitting the defendant now to seek reversal of his conviction due to the procedure followed by the court, to which defense counsel expressly assented at trial, would result in an ambuscade of the trial court.

The defendant argues, however, that Practice Book § 42-27 is mandatoiy; see State v. Fletcher, 10 Conn. App. 697, 702, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988); and cannot be waived by defense counsel. He cites no persuasive authority in support of the claim that the rule cannot be waived, and our case law indicates to the contrary. “Although a defendant will not be deemed to have waived certain constitutional rights unless the state can demonstrate that the defendant’s waiver was knowing and intelligent; see, e.g., State v. T.R.D., 286 Conn. 191, 202-203, 942 A.2d 1000 (2008) (defendant’s waiver of counsel must be knowing and intelligent); State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006) (defendant’s guilty plea must be knowing and voluntary); that requirement is inapplicable when . . . counsel has waived a potential constitutional claim in the exercise of his or her professional judgment. ... In our adversary system, the trial court was entitled to presume that defense counsel was familiar with [case law] and had acted competently .... To conclude otherwise would require the trial court to canvass defense counsel with respect to counsel’s understanding of the relevant constitutional principles before accepting counsel’s agreement on how to proceed. For good reason, there is nothing in our criminal law that supports such a requirement.” State v. Holness, 289 Conn. 535, 544, 958 A.2d 754 (2008).

In summary, defense counsel agreed to the court’s proposal to proceed to a verdict instead of responding to the jury’s penultimate note requesting clarification of the conspiracy charge. The defendant waived any claim to have the court issue additional instructions in response to that note pursuant to Practice Book § 42-27, and the defendant therefore waived any appellate issues connected to the court’s decision to proceed to a verdict. Accordingly, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of the charges of home invasion in violation of § 53a-100aa (a) (2), burglary in the first degree in violation of § 53a-101 (a) (1), and robbery in the first degree in violation of § 53a-134 (a) (4).

       Jose Guerrero, Carlos Guerrero and Vasques are originally from El Salvador.

       The court imposed sentence on the conviction of conspiracy to commit home invasion. The counts for conspiracy to commit burglary in the first degree and conspiracy to commit robbery in the first degree were merged into the conviction of conspiracy to commit home invasion.
      The defendant did not raise the issue, before or at the time of oral argument before this court, of whether the trial court should have vacated the convictions on two of the conspiracy charges and sentenced the defendant on the remaining conspiracy conviction instead of merging two of the conspiracy convictions into the conviction on the conspiracy to commit home invasion charge. See State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013); State v. Wright, 144 Conn. App. 731, 748, 73 A.3d 828, cert. granted, 310 Conn. 945, 80 A.3d 907, 908 (2013). Because he had the opportunity but failed to do so, this court declines to rule on this issue in this appeal.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-100aa (a) provides in relevant part: “A person is guilty of home invasion when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein, and, in the course of committing the offense ... (2) such person is armed with explosives or a deadly weapon or dangerous instrument.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when (1) such person enters or remains unlawfully in a building with intent to commit a crime therein and is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       Practice Book § 42-27 provides: “If the jury, after retiring for deliberations, requests additional instructions, the judicial authority, after providing notice to the parties and an opportunity for suggestions by counsel, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.”

       The subject sentence in the court’s jury instructions provided: “It is enough if he knows that a conspiracy exists or that he is creating one and that he intends to join with at least one other person in an agreement to commit a crime.”
      The defendant claims that the inquiry indicated that the jury believed that the defendant’s mere knowledge of the existence of a conspiracy was sufficient to convict him of the conspiracy charges.

        We note that this court upheld an identical conspiracy instruction when challenged in State v. Taylor, 132 Conn. App. 357, 361-67, 31 A.3d 872 (2011), appeal dismissed, 309 Conn. 83, 71 A.3d 464 (2013) (certification improvidently granted). In Taylor, the trial court also gave the following instruction with respect to conspiracy: “The mere knowledge, acquiescence or approval of the object of the agreement without cooperation or agreement to cooperate, however, is not sufficient to make one a party to a conspiracy to commit the criminal act.” (Emphasis omitted; internal quotation marks omitted.) Id., 363. An identically worded instruction was given by the court in the present case, and, significantly, that instruction immediately followed the language questioned by the jury in its note to the court. The fact that it reached its verdict less than twenty minutes after having made that inquiry suggests that the jury continued to review the written jury instructions during its deliberations and discovered the answer to its inquiry on its own.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if aU 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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239-40.


author: DUPONT, J.

text:
    EDUARDO PEREZ ET AL. v. PETER MINORE
    (AC 35199)
    Gruendel, Bear and Dupont, Js.

      Argued October 23, 2013
    officially released January 28, 2014

      Bernard Pellegrino, for the appellants (plaintiffs).

      James J. Nugent, with whom, on the brief, was Julia A. Nugent, for the appellee (substitute defendant).
   Opinion

DUPONT, J.

The plaintiffs, Eduardo Perez and Jose Fernandez, appeal from the judgment of the trial court, rendered in favor of the defendant, Peter Minore, in which the plaintiffs sought monetary damages for civil assault based on statements allegedly made by the defendant to third parties, threatening to cause bodily harm to the plaintiffs. Their sole claim is that the court erred in refusing to admit into evidence a police investigative report (report) and two audiotaped conversations between the defendant and third parties regarding the alleged threats made upon the lives of the plaintiffs. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history, which establish the relationship of the parties prior to the institution of the present action. In 2006, the plaintiffs leased a building owned by a limited liability company in which the defendant was a principal in partnership with his nephew. The lease agreement negotiated by the parties enabled the plaintiffs to open and operate the liquor store in the defendant’s building, and also contained an option for the plaintiffs to purchase the building. After renovating the building, the plaintiffs opened their liquor store in October, 2006.

In addition to the lease agreement, the plaintiffs and the defendant had other business connections. The defendant loaned money to the plaintiffs for the operation of the liquor store and for another business owned by Fernandez. In 2008, the parties began to dispute the repayment of those loans and to dispute questions arising from the exercise of the plaintiffs’ option to purchase the liquor store property.

In late 2008 or early 2009, Perez filed a complaint with the New Haven Police Department (department) claiming that the defendant had asked two men, Max Felix and Freddy Martin, to MU or cause harm to the plaintiffs. Police Sergeant Alfonso Vasquez commenced an investigation, which included contacting both Felix and Martin and requesting that they “wear wires” while speaking with the defendant to determine whether there was sufficient probable cause for an arrest. On February 16, 2009, Martin spoke with the defendant while wearing a wire and Vasquez was able to record the conversation successfully. Vasquez was also able to record a conversation between Felix and the defendant. After further investigation, however, Vasquez concluded that there was insufficient evidence to support the plaintiffs’ claims and subsequently closed the investigation without executing an arrest of the defendant.

The plaintiffs commenced the present action against the defendant and filed their initial complaint on January 13, 2011. The plaintiffs thereafter filed their revised complaint on October 11, 2011, in which they sought monetary damages for civil assault arising from the threats of serious bodily harm or death caused by the defendant’s verbal requests of Felix and Martin to cause such serious bodily harm to the plaintiffs. In anticipation of trial, the plaintiffs subpoenaed copies of Vasquez’ report and copies of the taped conversations between the defendant and Martin and the defendant and Felix. In response, corporation counsel for the City of New Haven (city) filed a motion to quash the admission of the report and tapes at trial, as well as a request for a protective order.

Trial was held over the course of two days, beginning on October 23, 2012. The court heard arguments on the city’s motion to quash at the beginning of the trial. The plaintiffs subpoenaed their first witness, Lieutenant Patricia Helliger, as the records keeper for the department. Helliger delivered Vasquez’ report to the court, and upon offering the report into evidence, the city renewed its argument in regard to its motion to quash pursuant to General Statutes §§ 1-216 and 1-210 (b) (3) of the Freedom of Information Act (act). At the conclusion of the argument, the court conducted an in camera review of the report and sustained the city’s objection concerning its admissibility. The court also ruled the taped conversations to be inadmissible on the same grounds.

On November 6, 2012, the court issued its memorandum of decision in which it held that “the alleged claims regarding statements by [the defendant] were not proven, and even if any statement was made to a third party it would not constitute an assault as claimed by the plaintiffs.” Relying on DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985), the court concluded that “[t]he plaintiffs have failed to prove that a civil assault occurred by alleged statements to third parties.” The court also found that “damages [were] not proven by either plaintiff by a fair preponderance of the evidence.” The court then rendered a judgment for the defendant. The plaintiffs filed the present appeal on November 21, 2012.

We begin by setting forth the applicable standard of review. The plaintiffs argue that our standard of review is plenary because it concerns the interpretation of statutes, which involves a question of law. The defendant argues that our standard of review is abuse of discretion because this appeal concerns an evidentiary ruling. We agree with the defendant that abuse of discretion review of the present claim is appropriate because the plaintiffs’ only issue on appeal is whether the court erred in excluding the report and audiotapes from evidence. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 670-71, 31 A.3d 1012 (2011).

The plaintiffs’ sole issue on appeal is that the court erred in refusing to admit into evidence the report and audiotaped conversations between the defendant and Felix and the defendant and Martin regarding the alleged threats made upon the lives of the plaintiffs. Specifically, the plaintiffs contend the court incorrectly applied §§ 1-216 and 1-210 to the report and audiotapes in excluding such evidence. We disagree.

In excluding both the report and the audiotapes from evidence at trial, the court relied primarily on §§ 1-216 and 1-210. Section 1-216 states: “Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.” Section 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known ... or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.”

On the basis of the evidence before it, the court correctly concluded, after an in camera review of the report, that the report and the audiotapes were inadmissible pursuant to those statutes. Section 1-216 applies to law enforcement records that contain “uncorroborated allegations.” In the present case, Vasquez conducted an investigation based on the plaintiffs’ claims and determined that all such allegations were uncorroborated because there was no overt act on the defendant’s part and thus no probable cause. Vasquez then closed the case without questioning or arresting the defendant. Therefore, § 1-216 is directly applicable to the report because it contains “uncorroborated allegations that an individual has engaged in criminal activity” as well as to the audiotapes, the contents of which were incorporated into the report.

Although the plaintiffs assert that the department’s failure to destroy the report and audiotapes indicates that the allegations were not, in fact, uncorroborated, there is nothing in the record to indicate that the department’s failure to do so was anything more than an administrative oversight. Because the report and audiotapes fit within the auspices of § 1-216, we cannot conclude that the court abused its discretion in excluding the report and audiotapes from evidence pursuant to § 1-210 (b) (3) (G), which does not require disclosure of “uncorroborated allegations subject to destruction pursuant to section 1-216.”

Furthermore, even if the court’s ruling on the disclosure of the report and audiotapes was incorrect, the failure to admit such evidence was harmless error because the court concluded not only that the plaintiffs failed to prove that a civil assault had occurred, but also that the plaintiffs had not suffered any harm as a result of such an alleged assault. “[B]efore a party is entitled to a new trial because of an erroneous eviden-tiary ruling, he or she has the burden of demonstrating that the error was harmful. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the [fact-finder’s] verdict. ... A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.” (Citation omitted; internal quotation marks omitted.) Klein v. Norwalk Hospital, 299 Conn. 241, 254-55, 9 A.3d 364 (2010).

We affirm the trial court’s judgment for the defendant in this action for civil assault, concluding that the subpoenas for production of the department’s report and the audiotapes were correctly quashed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, Peter Minore, died on December 17, 2011, and the trial court granted the plaintiffs’ motion to substitute his daughter, Doreen Scungio, the executrix of his estate, as the party defendant. We refer to Minore as the defendant in this opinion.

       The parties agree that the allegations of the plaintiffs’ complaint constitute a claim for civil assault, that is, “the intentional causing of imminent apprehension of harmful or offensive contact in another.” DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985).

       The importance of the report and taped conversations relate to their relevance to prove the plaintiffs’ allegations of civil assault and to the plaintiffs’ claim for damages.

       In Minore v. Fernandez, Superior Court, judicial district of New Haven, Docket No. CV-08-5023787-S (January 30, 2012), Minore filed an action against Perez, Fernandez, and Fernandez’ wife seeking fulfillment of two promissory notes. The court rendered judgment in favor of Minore in the total sum of $110,515.44. This court affirmed that judgment in Minore v. Fernandez, 139 Conn. App. 908, 56 A.3d 473 (2012).
      The defendant’s estate also has a second case currently pending in the Superior Court in which it is seeking monetary damages from Mayimbe, LLC, a limited liability company owned by Fernandez, for failure to pay the amount due under another promissory note. See Scungio v. Mayimbe, LLC, Superior Court, judicial district of New Haven, Docket No. CV-11-6024507-S.

       At a prior trial, Perez admitted that various problems arose affecting the sale of the property including difficulty in obtaining financing, a defect in title, and environmental concerns that delayed the closing. The closing ultimately did occur and the deed was transferred to the plaintiffs in exchange for payment.

       Neither Felix nor Martin are parties in the present action.

       The plaintiffs filed their revised complaint in response to the defendant’s request to revise, filed February 17, 2011, in which the defendant requested that the plaintiffs identify the unnamed third parties and the contents of the alleged conversations between the defendant and the unnamed third parties. The revised complaint names Felix and Martin and details the contents of the alleged conversations, but is otherwise the same as the original complaint.

       The plaintiffs served two separate subpoenas. The first subpoenaed Lieutenant Patricia Helliger as the custodian of records for the department to introduce and testify as to the contents of the report. The second subpoenaed Sergeant Joseph Dease of the department’s property desk to introduce and testify as to the contents of the audiotapes also at issue in the present appeal.

       Although the court did not explicitly rule on the city’s motion, it did exclude the report and the audiotapes on the same basis as proffered by the city in its motion to quash.

       Although we are not bound by the decisions of our trial court, we note that such courts have addressed the process a court should undertake in evaluating such records: “Compliance with the intent of § 1-210 (b) (3) (G) requires the court to follow the procedure adopted in Provost v. State,
        Superior Court, judicial district of Hartford, Docket No. CV-99-0586362 [December 9, 2002]. In that case, the court received documents under seal and conducted an in camera review to determine whether they contained uncorroborated allegations of criminal activity. The in camera review involves two steps. First, the court must determine whether the allegations in the requested records regard criminal activity, making them subject to the record-keeping requirements of § 1-216. That determination is a question of law for the court. . . . Second, if the court determines that the allegations regard criminal activity, then it must determine if the allegations are corroborated. If the court determines that the allegations are corroborated, the records should be disclosed, consistent with § 1-210 (a). If the court determines that the allegations are not corroborated, then, in compliance with § 1-210 (b) (3) (G), the records should not be disclosed. Furthermore, § 1-216 requires law enforcement agencies to destroy records containing uncorroborated allegations of criminal activity within [fifteen] months of their creation.” (Citation omitted.) Vogth-Erikson v. Delmore, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-03-0197020-S (August 13, 2004) (37 Conn. L. Rptr. 670).

       We note that there is existing case law that provides for the balancing of a criminal defendant’s rights in determining whether information, otherwise exempt under the act, is disclosable in certain circumstances under the confrontation clause. State v. Januszewski, 182 Conn. 142, 170-74, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). There is no authority, however, to indicate that such an analysis is necessary in a civil assault case. See Townsend v. Commissioner of Correction, 116 Conn. App. 663, 672, 975 A.2d 1281 (“Despite the statutory protections, the petitioner argues that his need to examine the records outweighed the statute’s confidentiality policy. . . . [TJhere is no authority to suggest that in camera review of such records was required upon a showing here in the petitioner’s civil habeas case. Moreover, because a great deal of the information sought would have been available to the petitioner through the officers’ testimony, there was little need to allow the petitioner access to the files.” [Citation omitted.]), cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).

       Vasquez testified that he closed his investigation of the plaintiffs’ claims in February, 2009. Therefore, pursuant to § 1-216, the records should have been destroyed no later than June, 2010.

       Preventing disclosure of such records comports with the original purpose of the act. Then State Senator Richard Blumenthal, speaking in favor of Public Acts 1990, No. 90-335, now § 1-210, stated: “ ‘The purpose really is to provide some protection for individuals who may be the subject of these kinds of allegations and who deserve some protection against disclosure under [the act].’ 33 S. Proc., Pt. 5, 1990 Sess., pp. 1546-47.” Bona v. Freedom of Information Commission, 44 Conn. App. 622, 631-32 n.10, 691 A.2d 1 (1997).