text:
    TROY HARRIS v. COMMISSIONER OF CORRECTION
    (AC 30040)
    Harper, Lavine and Beach, Js.

      Submitted on briefs January 8
    officially released May 18, 2010

      Temmy Ann Pieszak, chief of habeas corpus services, filed a brief for the appellant (petitioner).

      John A. Connelly, state’s attorney, Harry Weller, senior assistant state’s attorney, and John J. Davenport, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Troy Harris, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) relied on a presumption of attorney competence, (2) defined the concept of exculpatory evidence and (3) failed to address trial counsel’s decision not to call alibi witnesses at the criminal trial on account of ethical concerns. Additionally, he claims that the court abused its discretion when it denied his petition for certification to appeal. We dismiss the appeal.

On the direct appeal, this court summarized the facts underlying the petitioner’s conviction as follows. “On May 16, 2000, John Simpson drove Howard Dozier and Hector Quinones to Washington Street in Waterbury to pick up Ray Ramos. At that time, the [petitioner] was residing at 39 Washington Street with Tammi Jamison, the mother of his child. Simpson stopped the vehicle he was driving on Washington Street in a driveway between the [petitioner’s] house and the house where they were picking up Ramos, and all three men exited the car. Dozier walked up the street and encountered the [petitioner] standing on his porch at 39 Washington Street. Dozier and the [petitioner] had a brief conversation. As Dozier turned his back to the [petitioner] in an attempt to return to the vehicle in which he had arrived, the [petitioner] began firing an Uzi machine gun at Dozier. Dozier ran back to the vehicle and he and Simpson drove off. The [petitioner] continued to fire at the vehicle, and Simpson, who was driving, was shot in his neck.

“The [petitioner] was tried to a jury, which found him guilty of attempting to murder Simpson and Dozier, as well as the first degree assault on Simpson. The [petitioner] received a total effective sentence of forty years imprisonment.” State v. Harris, 85 Conn. App. 637, 639-40, 858 A.2d 284, cert. denied, 272 Conn. 901, 863 A.2d 695 (2004).

In his amended habeas petition, the petitioner claimed that trial counsel, Robert Berke, “failed to properly investigate all possible exculpatory and/or alibi witnesses” and therefore had rendered ineffective assistance of counsel. In its memorandum of decision, the court concluded that Berke did not render ineffective assistance of counsel and that his failure to call several individuals as alibi witnesses at the criminal trial was a valid strategic decision. The court credited Berke’s testimony that he tried to discourage the petitioner from testifying at the criminal trial but that the petitioner wanted to testify regardless of whether the alibi witnesses did so. The petitioner’s testimony differed from that which would have been offered by the putative alibi witnesses. The court noted that as conflicting as the petitioner’s own versions of his alibi were, the addition of alibi witnesses would likely have made matters worse for the petitioner. The court thereafter denied his petition for certification. This appeal followed. Additional facts will be set forth as necessary.

We first set forth our standard of review. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” (Citation omitted; internal quotation marks omitted.) Griffin v. Commissioner of Correction, 119 Conn. App. 239, 241, 987 A.2d 1037, cert. denied, 295 Conn. 912, 989 A.2d 1074 (2010). With those standards in mind, we turn to the petitioner’s claims.

I

The petitioner first claims that, when reviewing his claim of ineffective assistance, the court improperly applied the presumption of attorney competence as set forth in Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), by giving it evidentiary weight. We are not persuaded.

To demonstrate the court’s claimed improper usage of Strickland’s presumption of attorney competence, the petitioner focuses on the placement of wording in the court’s memorandum of decision. The petitioner avers that “[i]nstead of restating the presumption in the portion of the memorandum setting forth the applicable standard, the court placed the presumption after its review of the evidence in the case. That placement of the presumption language demonstrates that the court relied upon the presumption in lieu of evidence.” The petitioner sets forth an in-depth argument as to why the presumption of attorney competence does not carry evidentiary weight. We need not address this argument because there is no indication that the claimed error occurred.

The court’s memorandum of decision does not reveal that it gave evidentiary weight to the presumption of attorney competence. In its decision, the court made several factual findings regarding Berke’s decision not to call several individuals as alibi witnesses in the petitioner’s criminal trial. The court concluded that “Berke thus had several valid, strategic reasons for not calling the alibi witnesses to testify in the criminal trial. The petitioner has not overcome the presumption that trial counsel made all significant decisions in the exercise of reasonable professional judgment. . . . Therefore, the petitioner has failed to prove deficient performance.” (Citation omitted; internal quotation marks omitted.)

The placement of the presumption of attorney competence in a paragraph containing the court’s conclusion that the petitioner had not proven deficient performance does not establish that the court gave the presumption evidentiary weight. The decision, in fact, is silent in this regard. The petitioner did not seek to have the court articulate the manner in which it used the presumption of attorney competence. In the absence of a motion for articulation, we read the record to support the judgment. See State v. Reynolds, 264 Conn. 1, 30 n.21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

Because the memorandum of decision does not reveal that the claimed error occurred, we are not persuaded that this claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further.

II

The petitioner next claims that the court improperly defined the concept of exculpatory evidence. He argues that, as a result, it was futile for him to present evidence regarding the psychological history of Jamison, a state’s witness in the petitioner’s criminal trial, which history Berke failed to elicit in the criminal trial. We are not persuaded.

At the petitioner’s criminal trial, Jamison identified the petitioner as the shooter. She testified that on the night of the shooting, she saw the petitioner leave the apartment with a machine gun. Jamison further testified that the petitioner told her that he fired the gun from the porch and that there was no question in her mind that the petitioner was the person who fired the gun from her porch.

In his pretrial brief to the habeas court, the petitioner noted that in the underlying criminal trial, Berke’s predecessor filed a motion to obtain Jamison’s psychiatric records. He further noted that at the criminal trial, Berke did not pursue the motion or question Jamison regarding her psychiatric status at the time of the crime. He further stated that Jamison was expected to testify at the habeas trial that she has significant psychiatric histoiy, was prescribed medication for the treatment of her psychiatric issues and that she was noncompliant with her medication regimen at the time of the crime and the investigation into the crime. He claimed in his pretrial brief that Jamison was highly susceptible to the threats and coercion of Waterbury police officers, and that this susceptibility resulted in Jamison’s providing a statement to the police that did not contain the truth as she knew it to be and, instead, reflected the beliefs of the Waterbury police officers.

At the habeas hearing, the petitioner’s counsel asked Berke whether he had arranged for Jamison’s psychiatric records to be brought to the trial court and whether the records remained sealed. The respondent, the commissioner of correction, objected and claimed that the question was beyond the scope of the petition, which alleged that there was an improper investigation into exculpatory alibi witnesses. The court stated: “I’m inclined to think that it’s not exculpatory because she doesn’t testify that the petitioner didn’t commit the crime. But I’ll allow testimony on it and I’ll sort it out after the case is presented.” (Emphasis added.) The petitioner’s counsel then asked Berke whether Jami-son’s psychiatric records were brought to the court under seal. Berke responded: “I had subpoenaed records, and I got a response from one hospital. One document, which you’re looking at, says that there were no records. And both [facilities] say they . . . didn’t have any records.”

The petitioner argues that the court mistakenly concluded that the evidence that Jamison’s psychiatric illness led her to provide a coerced and false statement was not exculpatory and that the court thus refused to consider evidence in support of such a claim. As a result, he claims, he was not able to present his habeas case fully. He contends that this evidentiary ruling made it futile for habeas counsel to call Jamison to testify at the habeas trial to describe her psychological history and susceptibility to police coercion, which Berke had failed to elicit at the criminal trial.

The petitioner requests plain error review of his unpreserved claim. See Practice Book § 60-5. “[T]he plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) State v. Bowman, 289 Conn. 809, 817, 960 A.2d 1027 (2008). The petitioner cannot prevail because the claimed error did not occur. Contrary to the petitioner’s claim, the court did not exclude inquiry into Jamison’s psychiatric issues. The court stated that although it was “inclined to think that it’s not exculpatory,” it would “allow [the] testimony” and would “sort it out after the case [was] presented.” (Emphasis added.)

The petitioner also claims that the court failed to consider his claim that Berke was ineffective for failing to investigate exculpatory evidence regarding Jamison’s psychiatric history. This is inaccurate because the court did consider such a claim.

The court noted: “The petitioner did not allege this claim in his petition. Further, the testimony established that Berke did subpoena Jamison’s psychiatric records and that the providers responded that they had no records. Accordingly, there is no merit to this claim.” The court addressed the claim that Berke was ineffective for failing to pursue the disclosure of Jamison’s psychiatric records and found that it had no merit.

The petitioner has failed to demonstrate that this claim involves issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. Absent an adverse ruling on this issue, there was no reviewable issue for the court to certify. See Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 7, 790 A.2d 463 (“[t]his court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim” [internal quotation marks omitted]), cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).

Ill

The petitioner next claims that the court improperly avoided certain ethical issues when determining that Berke’s decision not to present alibi witnesses at the criminal trial was a valid strategic decision. At the habeas hearing, Berke testified that he was concerned that if he offered certain testimony from alibi witnesses at trial, he might be suborning perjury. The petitioner argues that the court improperly failed to address how this ethical concern influenced Berke’s decision not to call alibi witnesses at the criminal trial. The petitioner claims that the court improperly avoided “analyzing the interaction between the ethical rules and the right to the effective assistance of counsel and the right to present a defense.” We are not persuaded.

It was not improper for the court not to address Berke’s ethical concerns. The petitioner did not raise the ethical considerations in the amended petition, nor did he sufficiently alert the court that he was raising the issue. This claim is not properly at issue in the present appeal, and it was neither raised before nor addressed by the court in its memorandum of decision. See Wilcox v. Schwartz, 119 Conn. App. 808, 817 n.7, 990 A.2d 366 (2010). We are under no obligation to consider such a claim. See, e.g., Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170-71, 745 A.2d 178 (2000); see also Practice Book § 60-5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”).

The court did not abuse its discretion in denying certification to appeal an issue that was not first presented to the court and then ruled on by it. See Mitchell v. Commissioner of Correction, supra, 68 Conn. App. 7.

The appeal is dismissed.

In this opinion the other judges concurred.

       “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant 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 eveiy 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation omitted; emphasis added; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689.

       On the basis of the record before us, we need not and do not address the question of whether Strickland’s presumption of attorney competence disappears once evidence to the contraiy is introduced.

       The petitioner does not request review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), of Ms unpreserved evidentiary claim. See Mozell v. Commissioner of Correction, 291 Conn. 62, 67 n.2, 967 A.2d 41 (2009) (Golding review applicaMe when petitioner challenges actions of habeas court itself). Accordingly, we decline to engage in a Golding analysis of tMs claim. See State v. Bourguignon, 82 Conn. App. 798, 801, 847 A.2d 1031 (2004) (“failure to address the four prongs of Golding amounts to an inadequate briefing of the issue” [internal quotation marks omitted]).

       Psychiatric records are generally privileged but can sometimes be obtained by following proper procedures. See General Statutes § 52-146e.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY RODRIGUEZ
    (AC 30766)
    Flynn, C. X, and Beach and Pellegrino, Js.

      Argued February 9
    officially released May 18, 2010

      Gary A. Mastronardi, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Richard L. Palombo, Jr., senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PELLEGRINO, J.

The defendant, Jeffrey Rodriguez, appeals from the judgment of conviction, pursuant to a conditional plea of nolo contendere, to the charges of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the court improperly denied his motion to suppress. We disagree and affirm the judgment of the trial court.

The court reasonably could have found the following facts. On March 3, 2008, at approximately 10:30 a.m., Officer David Riehl, a member of the Bridgeport police department for more than eighteen years and the department’s tactical narcotics team since 2004, was conducting surveillance of a vehicle on Boston Avenue in Bridgeport. After the vehicle turned onto Bell Street, a one-way residential street with parking on both sides, and parked on the side of the street, Riehl discontinued surveillance and continued south. Shortly thereafter, he encountered a black Subaru driven by the codefendant, Joshua Milks, parked in the street, blocking his passage. Because there were cars parked on both sides of the street, there was only room for one car to fit down the center of the street. Riehl stopped his police cruiser approximately three feet from the Subaru.

At that point, Riehl observed Milks speaking with the defendant, who was the occupant of a Nissan Maxima parked on the left side of the street, parallel to the Subaru. Riehl then observed Milks open his door and, leaning over with his right hand into the window of the defendant’s car, hand money to the defendant. The defendant then handed an item or small items back to Milks. Milks subsequently left in the Subaru, proceeding south on Bell Street. Based on his experience and training, Riehl believed that he had observed a drug transaction and requested assistance from other members of the narcotics team. Riehl proceeded to follow Milks’ vehicle while his backup, Lieutenant Christopher Lamaine, who had arrived on the scene, drove his vehicle alongside the defendant’s vehicle.

Lamaine, a member of the police department for seventeen years and the commanding officer of the department’s narcotics division, parked his unmarked car at a forty-five degree angle beside the defendant’s vehicle. Lamaine exited his car and approached the defendant’s vehicle with his gun drawn. As he approached the defendant’s vehicle, he observed through the windshield and driver’s side window the defendant holding money and a plastic bag containing smaller bags with white powder. Lamaine immediately identified himself and ordered the defendant to show his hands. Lamaine witnessed the defendant scramble to hide the money and the plastic bag. Additional officers arrived on the scene, some also with their weapons drawn, and the defendant was removed from the automobile. A subsequent search of both vehicles revealed the presence of narcotics similar in packaging. Both the defendant and Milks were charged with possession of and sale of narcotics.

On September 29, 2008, the defendant filed a motion to suppress any and all evidence of narcotics seized from him or Milks as a result of what the defendant alleged was an unlawful arrest. Specifically, the defendant contended that the police conducted a warrantless arrest without probable cause. On October 3, 2008, the court conducted an evidentiary hearing and heard testimony from Riehl and Lamaine. The defendant called one witness and did not testify himself. Thereafter, on November 26, 2008, the court issued a memorandum of decision denying the defendant’s motion to suppress. The defendant entered a conditional plea of nolo con-tendere to one count of possession of narcotics with intent to sell by a person who is not drug-dependent and one count of possession of narcotics with intent to sell within 1500 feet of a school. He was sentenced to a total effective term of ten years incarceration. This appeal followed. Additional facts and procedural history will be provided as necessary.

Our rules of practice provide: “Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.” Practice Book § 41-12; see also General Statutes § 54-33f. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

On appeal, the defendant claims that the drugs should have been suppressed because they were discovered as a result of an unlawful seizure of his person, in this case, during an arrest or investigatory stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A person is seized within the meaning of the constitution of Connecticut, article first, §§ 7 and 9, when “by means of physical force or a show of authority, his freedom of movement is restrained. . . . The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 844-45, 955 A.2d 43 (2008). “When considering the validity of a Terry stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004).

According to the court, “under the circumstances presented here, there is no question that a seizure occurred once the defendant’s car was blocked by Lieutenant Lamaine’s vehicle and the defendant was not free to leave.” There is no dispute that the defendant was seized by that point. Thus, the defendant asks us to review whether the police had a reasonable and articulable basis for seizing or stopping the defendant and, if so, whether Lamaine’s actions dining the investigatory detention constituted a de facto arrest.

“The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct. . . . Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. ... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . The threshold for reasonable and articulable suspicion requires less than probable cause .... The determination is not a technical one, but is informed by the factual and practical considerations of everyday life. ... In this respect, the perceptions of an experienced police officer might have more significance to him in determining whether the law is being violated at a given time and place than they would have to a layman .... The court’s legal conclusion is subject to our plenary review.” (Citations omitted; internal quotation marks omitted.) State v. Madison, 116 Conn. App. 327, 335, 976 A.2d 15, cert. denied, 293 Conn. 929, 980 A.2d 916 (2009).

The defendant argues that Lamaine’s action was based upon Riehl’s “bare observation of the innocent acts of one person handing an unknown amount of currency to another person and then being handed back an unknown [item].” We disagree. “[A]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and arti-culable suspicion can arise from conduct that alone is not criminal. . . . We do not consider whether the defendant’s conduct possibly was consistent with innocent activity but, rather, whether the rational inferences that can be derived from it reasonably suggest criminal activity to a police officer.” (Citation omitted; internal quotation marks omitted.) State v. Madison, supra, 116 Conn. App. 336.

The facts support the court’s determination that Lamaine had a reasonable and articulable suspicion to make an investigatory stop. Riehl was passing down the street when Milks’ vehicle blocked him from passing. Riehl had no choice but to remain there until Milks moved his vehicle. It was at this point that Riehl witnessed the drug transaction between the defendant and Milks. This transaction occurred in an area known for narcotics activity, with the defendant sitting in a vehicle in a manner consistent with drug related activity. Riehl then witnessed the defendant, after engaging in a brief conversation with Milks, accept money from Milks through the window of his car. At that point, the defendant handed Milks a small item or items. Immediately after this exchange, Milks drove off in his vehicle, while the defendant remained in his vehicle parked on Bell Street. The transaction occurred in similar location and manner to many previous drug transactions witnessed by Riehl during his eighteen years as a police officer. Based on these facts, Riehl determined that he had witnessed a sale of narcotics and called for Lamaine to assist in investigating what he believed was a drug transaction. As Lamaine approached the defendant’s vehicle, he observed through the windshield and driver’s side window the defendant holding money and a plastic bag containing smaller bags with white powder that appeared to be drugs. We conclude that on the basis of the foregoing facts, Lamaine had a reasonable and articulable suspicion to make an investigatory stop.

The defendant also claims that the actions of Lamaine constituted an arrest requiring probable cause. We disagree. The defendant suggests that Lamaine’s decision to draw his weapon and approach the defendant transformed the situation into a de facto arrest. As the court found, Lamaine’s observation of the defendant in possession of narcotics and currency occurred “within seconds” of his seizing the defendant. The investigation itself “last[ed] no longer than [was] necessary to effectuate the purpose of the stop.” (Internal quotation marks omitted.) State v. Jenkins, 104 Conn. App. 417, 426, 934 A.2d 281 (2007). It is clear that at the point Lamaine witnessed the defendant in possession of drugs, there was probable cause to arrest him.

Therefore, the defendant essentially contends that a transformation from an investigative stop into a de facto arrest occurred during the short seconds after Lamaine exited his vehicle and approached with his weapon drawn. See State v. Mann, 271 Conn. 300, 328, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005), citing United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (in assessing reasonableness under Terry, courts should “consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing”). As the court explained, “Lamaine was conducting a stop of an individual that was believed to have just completed a narcotics sale from his vehicle. His approach of the vehicle with a weapon drawn is not unreasonable in light of the recognized connection between weapons and drug dealing.” “Connecticut courts repeatedly have noted that [t]here is a well established correlation between drug dealing and firearms. . . . Federal courts also have recognized this fact of life.” (Citations omitted; internal quotation marks omitted.) State v. Mann, supra, 325.

Thus, we conclude that Lamaine had a reasonable and articulable basis for seizing the defendant and, upon witnessing the defendant in possession of narcotics and currency through the window and windshield of his parked car, probable cause to make the subsequent arrest. The court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant entered conditional pleas of nolo contendere, thus preserving his right to challenge the ruling on the motion to suppress. The court found that a ruling on the motion to suppress would be dispositive of the defendant’s case. See General Statutes § 54-94a.

       The court found that the weather that morning was bright and normal, with no adverse weather conditions.


author: FLYNN, C. J.

text:
    BERNARD BEWRY v. COMMISSIONER OF CORRECTION
    (AC 30505)
    ílynn, C. J., and Robinson and Alvord, Js.

      Argued February 8
    officially released May 18, 2010

      Michael Zariphes, special public defender, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The petitioner, Bernard Bewry, appeals following the habeas court’s denial of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. His claims on appeal— alleging ineffective assistance by his various previous counsel and that the court improperly found his claim of illegal seizure and violation of due process to be procedurally defaulted—center on his argument that his arraignment was untimely under General Statutes (Rev. to 1987) § 54-lg. Following our review of the record and the parties’ arguments, we conclude that the petitioner was arraigned timely according to the statute, and, therefore, we dismiss the appeal.

The petitioner’s appeal is based on the following facts. On September 6,1988, the petitioner was involved in a motor vehicle stop at Blue Hills Avenue and East Euclid Street in Hartford. Following an ensuing pursuit on foot in which the petitioner attempted to flee the police and fired a weapon at police, the petitioner was shot by a Hartford police officer, who returned the petitioner’s fire. The petitioner was taken to Mount Sinai Hospital where he was admitted and treated for his injuries. While the petitioner was in the hospital, he was restrained to his bed, and a police officer was stationed at the door of the hospital room. On Saturday, September 17,1988, the petitioner was discharged from the hospital, arrested by the police and taken into custody. While in police custody, the petitioner was questioned about the September 6, 1988 incident and about a previous unrelated criminal matter. He provided to the police voluntary statements concerning both matters. The petitioner was arraigned in Superior Court on Monday, September 19, 1988. In docket number 54832, following a jury trial in which he was represented by attorneys Kenneth Simon and Susan Brown, the petitioner was convicted on charges arising from the September 6, 1988 incident. Simon represented the petitioner in his appeal from the judgment of conviction, which this court affirmed. State v. Bewry, 24 Conn. App. 823, 588 A.2d 1090 (1991) (per curiam).

The petitioner also was represented by Simon and Brown in docket numbers 54830 and 54831, which were consolidated for trial. The charges in these dockets arose out of events that occurred in April, 1988, and about which the petitioner gave a statement to police on September 17, 1988. Following a jury trial, the petitioner was convicted of various crimes in these cases. Simon and Brown represented the petitioner in his appeal from these convictions, which this court affirmed. See State v. Bewry, 26 Conn. App. 242, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992).

The petitioner filed a petition for a writ of habeas corpus challenging his confinement resulting from the convictions in docket numbers 54830, 54831 and 54832 (first habeas). Attorney Patrice A. Cohan represented the petitioner in this first habeas in which the petitioner alleged that Simon and Brown had provided him ineffective legal assistance at the trial and sentencing phases of these matters. Among other claims, the petitioner alleged in the first habeas that Simon and Brown were ineffective in failing to move to suppress the statement the petitioner had given to the police in docket numbers 54830 and 54831 on the ground that the statement was not voluntary. The habeas court, Hon. David M. Barry, judge trial referee, denied the petition and denied the petitioner’s petition for certification to appeal. This court dismissed the petitioner’s subsequent appeal in which he was represented by Cohan. See Bewry v. Commissioner of Correction, 73 Conn. App. 547, 808 A.2d 746 (2002) (per curiam), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003).

On May 9, 2001, the petitioner initiated the action underlying the present appeal by filing a pro se habeas petition alleging that Simon and Brown had provided him ineffective legal assistance in his two direct appeals. Following the habeas court’s granting of his motion for appointment of counsel, Cohan filed an appearance on behalf of the petitioner. On May 28,2002, Cohan filed an amended petition that alleged that Simon had provided ineffective assistance in failing to challenge the petitioner’s arraignment as untimely. Cohan’s motion to withdraw her appearance due to health reasons was granted by the court on July 15, 2002. Thereafter, attorney Paul Kraus appeared on behalf of the petitioner and filed the operative petition in this matter, the second amended petition.

The second amended petition was in four counts. Count one alleged that the petitioner was subjected to an unconstitutional search and seizure and deprived of the due process of law in that he was not arraigned timely under § 54-lg and, as a result, that his arrest was invalid, and his statements provided to the police were inadmissible. The remaining counts alleged ineffective assistance of counsel against Cohan, Brown and Simon for their failure to raise the timely arraignment issue in the petitioner’s first habeas and his first habeas appeal, in his trial in docket number 54832 and in his appeal from the judgment in that case, State v. Bewry, supra, 24 Conn. App. 823, respectively.

Following trial, the habeas court filed a memorandum of decision denying the petition. The court concluded that the petitioner’s first count was procedurally defaulted, as the petitioner had failed to demonstrate good cause for his failure to raise the claim previously at trial or on direct appeal. In addressing the petitioner’s ineffective assistance of counsel claims, the corut found that “[t]here is no credible evidence that the petitioner was under arrest until he was formally arrested on September 17, 1988, the day he was released from the hospital.” Noting that the “time of arraignment clearly can be affected by a [petitioner’s] hospitalization and incapacity,” the court concluded finally that the petitioner had failed to demonstrate that his various counsels’ performance was deficient or that he had suffered any prejudice. The court subsequently denied the petitioner’s petition for certification to appeal. This appeal followed.

The petitioner claims on appeal that he was provided ineffective legal assistance by counsel in his two trials, his two direct appeals, his first habeas and the appeal from his first habeas. He also challenges the court’s conclusion that he was not unconstitutionally seized or denied due process under the circumstances of his hospitalization, arrest and arraignment. Each of the petitioner’s appellate claims rests on the issue of whether the habeas court properly determined that he was arraigned timely following the September 6, 1988 incident in which he was shot by a police officer. He contends that he “was in fact clearly finder arrest and in police custody as of [September 6], 1988, and thus should have been timely arraigned pursuant to statute arguably on Wednesday, [September 7], 1988, and, at the very latest, no later than on Monday, [September 12], 1988.” Contrary to the petitioner’s argument, however, the record demonstrates that the petitioner was arraigned at the earliest regular sitting of the Superior Court following his hospitalization and arrest. The petitioner’s claims on appeal, accordingly, must fail.

We initially set forth the well established standard of review and principles of law underlying the petitioner’s claims. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). The required determination may be made on the basis of the record before the habeas court and applicable legal principles. See Simms v. Warden, supra, 617. If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Id., 612.” (Emphasis in original; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 564, 941 A.2d 248 (2008).

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozada and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” Taylor v. Commissioner of Correction, 284 Conn. 433, 449, 936 A.2d 611 (2007).

According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that “(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 63, 951 A.2d 520 (2008).

After he sustained injuries on September 6, 1988, the petitioner was taken to the hospital for treatment. He was discharged from the hospital on Saturday, September 17,1988, and arrested that same day. The petitioner was presented for arraignment on Monday, September 19, 1988. General Statutes (Rev. to 1987) § 54-lg provides in relevant part: “Any arrested person who is not released sooner . . . shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. If an arrested person is hospitalized . . . the person shall be presented, if practicable, to the first regular sitting after return to police custody.” Application of the requirements of § 54-lg to the facts of the case leaves no doubt but that the statute was fulfilled in the circumstances of the petitioner’s arraignment.

In support of his contention that he was arrested while in the hospital, the petitioner points out that an arrest warrant for him was sworn on September 9,1988. However, he points to nothing in the record that evinces the execution of the warrant, or any other evidence to sustain his burden of showing clear error in the court’s finding that he was not arrested until his discharge on September 17,1988. The petitioner could not have been arraigned that day because it was a Saturday. His arraignment was not delayed past the first possible opportunity for the state to bring him before a judge of the Superior Court.

Indeed, the statute would not have been contravened even if the petitioner had been arrested on September 6,1988, or at some later point during his hospitalization. At oral argument, the petitioner conceded that while he was hospitalized the police were not free to remove him and have him arraigned, as he was under the care and control of the hospital staff who would determine when he medically was able to be discharged. Our statutes do not provide for or mandate in-hospital arraignments, as the petitioner’s argument on appeal would seem to require. Rather, § 54-lg requires the police to arraign an arrested person who is hospitalized at the first regular sitting of the Superior Court “if practicable” following his return to police custody. Assuming for the sake of argument that the petitioner was arrested while in the hospital, his arraignment on September 19, 1988, nonetheless would have been timely under § 54-lg because that date was the first regular sitting of the Superior Court following the petitioner’s discharge from the hospital.

In sum, the petitioner’s claims rest on § 54-lg, which provides in relevant part: “If an arrested person is hospitalized . . . the person shall be presented, if practicable, to the first regular sitting [of the Superior Court] after return to police custody.” The petitioner has failed to show that the court’s finding that the “time of arraignment clearly can be affected by a [petitioner’s] hospitalization and incapacity” was clearly erroneous. Nor has he sustained his burden to show clear error in the court’s finding that none of his prior counsels’ performances were ineffective or that he suffered any prejudice resulting from their representation arising out of his untimely arraignment claim.

The petitioner has failed to demonstrate that the issues here are debatable among jurists of reason, that the court could resolve the issues in a different manner or that the questions involved are adequate to deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. He has failed, therefore, to show that the court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 54-lg provides in relevant part: “Any arrested person who is not released sooner .. . shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. If an arrested person is hospitalized . . . the person shall be presented, if practicable, to the first regular sitting after return to police custody.”

       Specifically, in docket number 54832 the petitioner was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), attempt to commit assault of a police officer in violation of General Statutes §§ 53a-167c and 53a-49, interfering with an officer in violation of General Statutes § 53a-167a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35.

       This court summarized the facts in docket numbers 54830 and 54831 as follows: “The [petitioner] went to a building on Charlotte Street in Hartford to confront several friends about rumors he had heard concerning his friends’ sexual involvement with his girl Mend. When the [petitioner] attempted to speak to the occupants of the building, they refused to let him inside. The [petitioner] then left, obtained a semiautomatic handgun and returned to the Charlotte Street building.
      “This time, the [petitioner] was allowed in and went to a second floor apartment. When he was approached by the people whom he had come to see, the [petitioner] drew his gun. After words were exchanged, the [petitioner] raised his gun and fired a shot that struck Errol McNeil in the head. McNeil died as a result of that injury.
      “The [petitioner] then fired from close range at Glaister Gunter, wounding him in his left arm. Gunter ran out of the building to an adjoining parking lot and collapsed on the ground. The [petitioner] approached Gunter and asked where he could find another person who had fled from the building when the first shot was fired. After Gunter told the [petitioner] where that person could be found, Gunter asked whether the [petitioner] was going to kill him. The [petitioner] replied, ‘First, I’m going to rob you,’ and then shot him again from a distance of about one foot. The bullet struck Gunter’s arm inches from where it supported his head. As Gunter lay motionless, the [petitioner] walked away and was heard to say, ‘You’re dead, [expletive].’ ” State v. Bewry, 26 Conn. App. 242, 243-44, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992).

       In docket number 54830, the petitioner was convicted of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2), carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). In docket number 54831, the petitioner was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). See State v. Bewry, 26 Conn. App. 242, 243, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992).

       Furthermore, we note that neither our analysis nor our result would be contrary if the petitioner had not required hospitalization at all but, instead, simply had been arrested on a Saturday. Under that circumstance, the state would have been required to present the petitioner for arraignment the following Monday or at the next regular sitting of the Superior Court thereafter. In any event, the petitioner could not be arraigned before the next Monday.


author: FOTI, J. BISHOP, J.,

text:
    IN RE EARL B.

    (AC 30491)
    Bishop, Alvord and Foti, Js.
    Argued November 17, 2009
    officially released May 18, 2010

      James Jude Connolly, supervisory assistant public defender, for the appellant (respondent).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cathleen Edwards, supervisory juvenile prosecutor, for the appellee (state).

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

   Opinion

FOTI, J.

The respondent, Earl B., appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, he claims that the sentencing court exceeded its statutory authority by imposing that portion of his agreed on sentence that banished him from New Haven County for forty-two months. Specifically, the respondent argues that the court, in accepting his plea agreement, exceeded its authority pursuant to General Statutes § 46b-140 (i) in two ways. First he claims that the court extended the maximum length of the sentence allowed under the statute from twelve months to forty-two months. He also contends that the court exceeded its statutory authority, which allows a court only to place a juvenile in a residential facility, by issuing an order of banishment from New Haven County. We dismiss the appeal as moot.

The respondent and three co-conspirators carjacked a woman at gunpoint, forced her into the trunk of her car and drove to a secluded area where two of the co-conspirators raped and beat her nearly to death. The co-conspirators who committed the sexual assault were each tried as adults, convicted and sentenced to eighty-five years incarceration. See State v. Foreman, 288 Conn. 684, 690, 954 A.2d 135 (2008); State v. Sargeant, 288 Conn. 673, 678, 954 A.2d 839 (2008). As a result of those incidents, the respondent was charged with kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-92a and 53a-48, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, sexual assault in the first degree in violation of General Statutes § 53a-70, assault in the first degree in violation of General Statutes § 53a-59, conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53a-48, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59. Being only thirteen years old when the crime was committed, the respondent could not be tried as an adult. The state negotiated a plea agreement with the respondent in which he pleaded guilty under the Alford doctrine to conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134, a serious juvenile offense as defined by General Statutes (Rev. to 2003) § 46b-120 (12). The record reveals that the banishment order was part of the voluntary plea agreement the state reached with the respondent. In oral argument to this court, the state claimed that the banishment order was meant to assure the victim that she could leave her apartment without inadvertently encountering the respondent.

On September 23,2005, after the respondent had been convicted via the plea agreement as delinquent, he was committed, pursuant to an agreed on sentence, to the custody of the commissioner of children and families (commissioner) for a period not to exceed four years. Also, on that date, as part of the respondent’s agreed on sentence, the court issued a separate order for three and one-half years of banishment from New Haven County. The banishment order was set to expire on March 23, 2009. The court, also as part of the agreed upon sentence, ordered the department of children and families (department) to keep apprised the victim, the victim’s advocate and the state’s attorney’s office in Juvenile Court in New Haven of the respondent’s location if he was to be outside of the training school’s secured setting. The court noted that the state, in resolving the respondent’s disposition and coming to an agreed on sentence that included the banishment order, took into consideration many factors including the victim’s well-being and safety. See General Statutes § 46b-140 (a) (“[i]n determining the appropriate disposition of a child convicted as delinquent, the court shall consider . . . [t]he seriousness of the offense, including the existence of any aggravating factors such as . . . the impact of the offense on any victim”). The respondent immediately was placed at the Connecticut Juvenile Training School; subsequently, however, he was released from the training school and placed in a residential treatment program in Pennsylvania. Earl B. v. Commissioner of Children & Families, 288 Conn. 163, 167-69, 175, 952 A.2d 32 (2008).

On April 2, 2008, the commissioner filed with the court a motion for review of the department’s permanency plan for the respondent. The department’s plan called for the continuation of the respondent’s commitment as a serious juvenile offender and for reunification with his mother. At that time, the respondent’s mother was residing in Meriden with her brother, the respondent’s uncle. Another aspect of the permanency plan was for the respondent to earn community passes in order for him to visit his uncle’s home in Meriden. In his report that was filed with the motion, the department social worker estimated that the respondent would earn his first community pass some time in July, 2008. On May 7, 2008, the court held a permanency plan hearing. Present at the hearing were attorneys Jessica Gauvin, representing the department, James Jude Connolly, the respondent’s attorney, and juvenile prosecutor Vincent Duva, representing the state. During the hearing, Connolly orally moved for the banishment order to be modified to allow the respondent to “return to Meriden and that [would be] the only town or city in New Haven County [in which] he would be allowed.” The court granted the motion to modify the banishment order to allow the respondent to reside in Meriden, with his mother and uncle, and stated that was “the only location within New Haven County that he will be able to reside in that will not result in a violation of the banishment order.” The court then found that the department made reasonable efforts at reunification and approved the plan.

On May 9,2008, the state filed with the court a motion for reconsideration and immediate rehearing. On May 19, 2008, the respondent filed a motion to dismiss the state’s motion for lack of subject matter jurisdiction. The court held a hearing on May 20, 2008, in order to consider the motions, at the conclusion of which the court continued the hearing to allow for additional briefing and stayed its May 7, 2008 order modifying the banishment order. On June 20, 2008, the respondent filed a motion to correct an illegal sentence. On July 8, 2008, the parties concluded their arguments concerning all matters involving the various motions before the court. By memorandum of decision filed November 6, 2008, the court dismissed the state’s motion for reconsideration, reasoning that once a child who has been adjudicated delinquent has been committed to the department, the state, in its role as juvenile prosecutor, no longer is a party to subsequent proceedings involving that child’s commitment. The court also denied the respondent’s motion to correct an illegal sentence, concluding that both the commitment and the banishment order each were within the bounds of § 46b-140 (i).

On appeal, the respondent challenges the propriety of the forty-two month banishment order. Because the banishment order expired on March 23,2009, the parties each concede that the respondent’s appeal is moot. We agree, however, that this does not end our analysis because an otherwise moot question may qualify for review under the “capable of repetition, yet evading review” exception to the mootness doctrine. To qualify for review under that exception, an otherwise moot question must meet the three requirements set out in Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995). “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Id., 382-83.

“The first element in the analysis pertains to the length of the challenged action. . . . The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced.” (Citations omitted.) Id., 383-84. “[A] party typically satisfies this prong if there exists a‘functionally insurmountable time [constraint]’ ”; Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 367, 957 A.2d 821 (2008); or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. 383.

Because the limits of a Juvenile Court’s authority are fixed by statute; see Dart v. Mecum, 19 Conn. Sup. 428, 432,116 A.2d 668 (1955); in addressing this first element of the Loisel test, we will examine applicable statutes governing the sentencing of juveniles in the circumstances present here. Cf. State v. Boyle, 287 Conn. 478, 487 n.3, 949 A.2d 460 (2008) (examination undertaken of statutes governing probationary periods in determining if action or effects not of inherently limited duration). The respondent was convicted of conspiracy to commit robbery in the first degree, a serious juvenile offense as defined by General Statutes (Rev. to 2003) § 46b-120 (12). Pursuant to General Statutes § 46b-141 (a) (2), the maximum commitment for a serious juvenile offense is four years. Also, pursuant to § 46b-140 (i), when a child is convicted of a serious juvenile offense “the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department . . . .” General Statutes § 46b-140 (i). Therefore, the plain language of the applicable statutes governing sentencing of serious juvenile offenders provides the court a window for the disposition of such a juvenile of between twelve months and four years.

The respondent’s banishment order was for forty-two months. Although, after our research, we find no express statutory provision authorizing the banishment of a child convicted of a serious juvenile offense, the duration of the order was within the statutory confines established for a child convicted of a serious juvenile offense. Because a child convicted as a serious juvenile offender may face a sentence that varies in length from twelve months to four years, we cannot conclude that banishment orders of the type present here, by their very nature, are “of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about [their] validity will become moot before appellate litigation can be concluded.” (Internal quotation marks omitted.) State v. Boyle, supra, 287 Conn. 487 n.3; cf. Patterson v. Commissioner of Correction, 112 Conn. App. 826, 836, 964 A.2d 1234 (2009) (because defendant may face probationary period that varies from two years to great number of years, probationary periods not of limited duration); Ruffin v. Commissioner of Correction, 89 Conn. App. 724, 728, 874 A.2d 857 (2005) (because issue of presen-tence time calculation could have been raised by inmates with lengthier prison terms, issue not likely to evade review).

The dissent, citing Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 163, concludes that “[o]ur Supreme Court has suggested . . . that appeals from delinquency placement determinations are likely to evade review because they are inherently time limited.” We, however, find the exceptions to mootness previously recognized by our Supreme Court in juvenile delinquency cases inapplicable to the present case. In Earl B., the plaintiff, who is the respondent in the present case, sought a hearing to challenge a condition of his commitment, namely, his placement at a juvenile training school for high risk offenders. The placement was required to be reviewed and subject to modification every six months. See General Statutes § 17a-15 (b). Although his claim had become moot, our Supreme Court held that it was nevertheless reviewable as capable of repetition yet evading review. Earl B. v. Commissioner of Children & Families, supra, 172. The court noted that most cases addressing the issue of whether a juvenile committed to the custody of the commissioner may challenge his or her continued placement through a treatment plan hearing would become moot before appellate litigation could be concluded because § 17a-15 (b) requires the commissioner every six months to review the treatment plan of each child committed to the commissioner’s custody, and there is a strong likelihood that, as a result of the review, the department would change the juvenile’s placement during the pen-dency of the appeal. Id., 170-71.

The same reasoning does not apply to the present case. The banishment order was not a condition of the respondent’s four year commitment to the commissioner. It also was not a component of the treatment plan devised by the commissioner pursuant to § 17a-15 (a) or subject to review and modification every six months under § 17a-15 (b). It was a separate order entered by the court pursuant to the parties’ agreement during the respondent’s delinquency adjudication. As such, it was subject to challenge on direct appeal or pursuant to Practice Book § 43-22. See State v. Casiano, 282 Conn. 614, 625, 922 A.2d 1065 (2007). The respondent, however, failed to avail himself of the opportunity for prompt review; he did not bring a direct appeal or prompt challenge to the order. His claim became moot because of his delay, not because the banishment order was “by its very nature” limited in duration; In re Steven M., 264 Conn. 747, 755, 826 A.2d 156 (2003); or presented a “ ‘functionally insurmountable time [constraint].’ ” Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 362. Accordingly, we conclude that the respondent’s claim does not satisfy the first prong of the Loisel test.

The respondent has failed to satisfy the first prong of Loisel, and, therefore, his claim does not qualify for review under the “capable of repetition, yet evading review” exception, as it is unable to meet each of Loisel’s three requirements. Because we cannot afford the respondent any practical relief and the respondent has failed to establish an exception to the mootness doctrine, we must dismiss the case for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion ALVORD, J., concurred.

BISHOP, J.,

dissenting. Although I agree with the majority that this appeal is moot, I disagree with the majority’s conclusion that the issues raised by the respondent, Earl B., on appeal are not likely to evade future review. Contrary to the majority, I believe that the issues are likely to evade review. I also believe that the issues are capable of repetition, that the respondent is an appropriate surrogate for similarly situated serious juvenile offenders and that the issue before us involves a matter of significant public importance. Therefore, in spite of the mootness of the appeal, I would reach the underlying substantive issue of whether the court improperly denied the respondent’s motion to correct an illegal sentence. In light of the statutory scheme for serious juvenile offenders, I would reject the respondent’s claim regarding the length of residential treatment ordered by the court. Based on my review of the statutory scheme pertaining to serious juvenile offenders, however, I do not believe that the court had the authority to issue a freestanding banishment order, excluding the respondent from New Haven County. Accordingly, I would reverse the court’s decision denying the respondent’s motion to correct an illegal sentence as to its banishment order and remand this matter with direction to grant the motion vacating the unauthorized banishment order.

The record in this matter reveals that the date of birth of the respondent is July 21,1990, that the offense underlying his guilty plea took place on September 26, 2003, and that, pursuant to a plea agreement, the respondent was committed on September 23, 2005, to the custody of the department of children and families (department) for a period not to exceed four years. At the dispositional hearing, the court also issued an order excluding the respondent from New Haven County for a period of forty-two months. This record shows, therefore, that the respondent was approximately thirteen years and two months of age on the date of the offense and approximately fifteen years and two months of age on the date of disposition. As a consequence of the respondent’s being under the age of fourteen on the date of the offense, and in spite of its extraordinary seriousness, he was not eligible for transfer to the regular criminal docket pursuant to General Statutes § 46b-127.

The statutory scheme applicable to juvenile matters is set forth in chapter 815t of the General Statutes. The respondent fit the definition of a serious juvenile offender as set forth in General Statutes § 46b-120 because the underlying offense resulting in his plea, conspiracy to commit robbery in the first degree, is a class B felony. The sentencing parameters for delinquents, including serious juvenile offenders, is set forth in General Statutes §§ 46b-140 and 46b-141. Section 46b-140 provides in relevant part: “(f) If the court further finds that its probation services or other services available to the court are not adequate for such child, the court shall commit such child to the Department of Children and Families in accordance with the provisions of section 46b-141. . . .” This statute continues: “(i) If the delinquent act for which the child is committed to the Department of Children and Families is a serious juvenile offense, the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department, as determined by the Commissioner of Children and Families. The setting of such minimum period shall be in the form of an order of the court included in the mittimus. . . .” General Statutes § 46b-140 (i). Section 46b-140 (j) (2) also includes a provision regarding the placement of juvenile offenders determined by the department to be the highest risk at the Connecticut Juvenile Training School, a secure facility.

In the case of a child committed to the department, as in this instance, there are additional statutory requirements regarding the length of commitment and the requirement for periodic reviews by the court. Section 46b-141 (a) provides, in relevant part, that commitment of a serious juvenile offender to the department may be for a period “up to a maximum of four years at the discretion of the court, unless extended as hereinafter provided.” This statute further provides in relevant part: “The court shall hold a permanency hearing in accordance with subsection (d) of this section for each child convicted as delinquent for a serious juvenile offense . . . within twelve months of commitment to the Department of Children and Families and every twelve months thereafter if the child remains committed to the Department of Children and Families. Such hearing may include the submission of a motion to the court by the commissioner to either (1) modify such commitment, or (2) extend the commitment beyond such four-year period on the grounds that such extension is for the best interest of the child or the community. • • •” General Statutes § 46b-141 (c).

With the exception of the banishment order, the court and the department appear to have followed this statutory scheme in sentencing the respondent and in his subsequent course while committed to the department. Rather than placing the respondent on probation, the court committed the respondent to the department. The record reveals, as well, that the department initially placed the respondent at the Connecticut Juvenile Training Center, and, thereafter, he was transferred to a residential juvenile facility in Pennsylvania. At a permanency plan hearing on May 7, 2008, when the respondent was approximately seventeen years and ten months of age and pursuant to § 46b-141, the department recommended that the respondent be permitted to visit his uncle’s home in Meriden, which is located within New Haven County. Incident to this hearing, the court granted the respondent’s motion to modify the banishment order. Thereafter, however, the state’s attorney’s office filed a motion for reconsideration in which it argued that the court could not modify the original disposition without providing the state and the victim notice and an opportunity to be heard. Within the same time period, the respondent filed a motion to dismiss the state’s motion on the basis of standing, and the respondent moved to correct an illegal sentence in which he alleged that the court’s original banishment order exceeded the court’s statutory authority. In response, the court by memorandum of decision filed November 6, 2008, granted the respondent’s motion to dismiss on the ground that the state had no standing during a permanency plan hearing, but the court also denied the respondent’s motion to correct an illegal sentence.

Recognizing that the appeal has become moot because the respondent is no longer burdened by the banishment order, my colleagues dismiss this appeal on the ground that the issue of the authority of a juvenile sentencing court to issue a banishment order is not likely to evade review. As the majority has stated, in order for a moot question to survive dismissal, the challenged action or its effect must, by its nature, “be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded.” Loisel v. Rowe, 233 Conn. 370, 382, 660 A.2d 323 (1995). Additionally, there must be a “reasonable likelihood” that the issue will arise again in the future and that it will either affect the same appellant or a reasonably identifiable group for whom the complainant can be said to act as a surrogate. Id. Finally, the question must be of some public importance. Id.

Taking the Loisel requirements in reverse order, the last is the easiest to resolve, as our Supreme Court has stated that issues that implicate the rights of juveniles adjudicated as delinquent are of public importance. Earl B. v. Commissioner of Children & Families, 288 Conn. 163, 172, 952 A.2d 32 (2008). That the respondent may serve as a surrogate for all similarly situated serious juvenile offenders does not appear to be a subject of debate. I believe that the next prong is also satisfied; that is, there is a reasonable likelihood that the authority of the court to issue a freestanding banishment order in a delinquency matter is likely to reoccur. I base that conclusion not by reference to any anecdotal evidence of a raft of cases in which banishment orders have been issued but, rather, on the apparent maintenance by the judicial branch of an outdated form which appears to contemplate the issuance of such an order. A review of the record reveals that the form utilized by the court on the date of sentencing, September 23, 2005, contains a series of boxes to be checked in order to reflect the disposition of the case. One of the boxes is followed by the following form-typed language: “Placed out of said child’s/youth’s town of residence for_months effective on (date)_and shall expire no later than (date):_.” In this instance, the box was checked and the blank spaces were filled out to reflect that the respondent was “[p]laced out of said child’s/youth’s town of residence [New Haven County] for 42 months effective on . . . 9/23/05 and shall expire no later than . . . 3/23/09.” The manner in which this portion of the form was completed comports precisely with the court’s express order of banishment as reflected in the transcript of the sentencing procedure. The judicial branch’s continuing use of this outdated form provides an adequate basis for me to conclude that there is a reasonable likelihood that the legal efficacy of banishment orders in juvenile delinquency matters will likely arise in the future.

Whether the issue is likely to evade review is, I recognize, a closer question. It is on this basis that the majority dismisses the appeal. Our Supreme Court has suggested, but not explicitly stated, that appeals from delinquency placement determinations are likely to evade review because they are inherently time limited. Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 171. In Earl B., which involved an appeal from a decision to require the plaintiff, who is the respondent in the present case, to remain at the training school for an additional period of two years, subject to periodic (six month) reviews, the court stated: “The issue raised in the present appeal is necessarily limited in its duration because there is a strong likelihood that the department will change the juvenile’s placement during the pendency of the appeal. In fact, § 17a-15 (b) requires the department to review the treatment plan of each child committed to its custody eveiy six months. Accordingly, the juvenile’s placement will be reviewed and likely changed more quickly than the time in which all appeals can be resolved. Moreover, pursuant to General Statutes § 46b-141, commitment of children convicted as delinquent to the department shall be for a maximum of eighteen months, or when convicted for a serious juvenile offense, up to a maximum of four years. The effect of the placement as prescribed in the treatment plan is thus limited by its very nature, and therefore is of such a limited duration that a substantial majority of the cases in which such an order is entered will evade review.” Id.

In the present case, the provision of the statute regarding the placement of serious juvenile offenders requires a permanency review within twelve months and every twelve months thereafter. See General Statutes § 46b-141 (c). Thus, even though the order at hand purported to be for a period of forty-two months, it was subject to judicial review at a permanency placement hearing within twelve months of commitment, a shorter time interval than that found by the court in Earl B. to likely evade review.

Having reached the conclusion that the court’s order under scrutiny is capable of repetition, likely to evade review, involves significant issues of public policy and that the respondent is an apt surrogate for similarly situated individuals, I would assess the substance of the respondent’s claims. There are two. The respondent claims that, at sentencing, the court improperly committed him to the Connecticut Juvenile Training Center for a period not to exceed four years, a term greater than allowed by statute. I do not agree. The pertinent statute provides in relevant part: “If the delinquent act for which the child is committed to the Department of Children and Families is a serious juvenile offense, the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department, as determined by the Commissioner of Children and Families. The setting of such minimum period shall be in the form of an order of the court included in the mittimus. . . .” General Statutes § 46b-140 (i).

The respondent argues that this statutory language limits the period of time a child may be committed to a residential facility to twelve months. His argument is supported neither by the language of the statute nor the statute’s legislative history. As to the language, if the authorized time period is limited to twelve months, there would be no need for the term “minimum period” to be employed in the statute. Rather, the statute could simply give the court authority to commit a child to a period of twelve months. This view is bolstered by the legislative history, which reveals that, as part of revamping our juvenile justice system and creating a new residential facility in 1999, the General Assembly enacted this change in order to give the court the authority to set a minimum time of required residential treatment for serious juvenile offenders. Speaking in favor of the bill, one of its proponents, Representative Michael P. Lawlor, judiciary committee co-chairperson, commented: “And the point of the juvenile justice system in the first place is that these [kids’] lives are still salvageable. And if we’re going to spend the extraordinary amount of money which we spend per kid per year in a facility like Long Lane [School in Middletown], we should at least require them to be there long enough ... to benefit from the treatment. And no one thought that the average stay—even currently which is like five months—is enough. So the bill, and this amendment requires the new Long Lane [School] to keep kids there for at least [twelve] months when the court that has sent them there has required it. Serious juvenile offenders for whom the court says you’ve got to keep this kid at least a year in Long Lane [School], they’ll have to do that.” (Emphasis added.) 42 H.R. Proc., Pt. 6,1999 Sess., pp. 1854-55. Given this legislative history and the language of the statute in question, I do not believe that the court’s order that the respondent be placed in a residential facility for a period of time substantially in excess of twelve months violates the statutory prescription that any such placement be for a time period of at least twelve months.

The respondent also claims that the court’s order of banishment from New Haven County was beyond the court’s authority. I agree. Analysis of this claim requires a brief discussion of the antecedents to § 46b-140. Prior to October 1, 1995, § 46b-140 (e) (1), the predecessor to subsection (i), provided: “If the delinquent act for which the child is committed to the department of children and families is a serious juvenile offense, the court may set a period of time up to six months during which the department of children and families shall place such child out of his town of residence at the commencement of such child’s commitment.” General Statutes § 46b-140 (e) (1). Thus, the statute in effect prior to October 1, 1995, contemplated that a child could be excluded from his or her town of residence for a period up to six months following his or her commitment to the department. In 1995, the statute was amended; see Public Acts 1995, No. 95-225, § 22, effective October 1,1995; to delete reference to six months with the result that, as of October 1, 1995, the statute gave to the court the authority to order that a child committed to the department be excluded from his or her community for an indefinite period of time, presumably up to the full term of the child’s commitment. In 1999, however, § 46b-140 was repealed and reenacted by Public Acts 1999, No. 99-26, § 12. Since 1999, the court no longer has the authority to set a period of time for a child to be placed out of his town of residence by the department. Rather, the statute, as applicable at the time of the underlying offense and sentencing, provides that the court may order that a serious juvenile offender committed to the department be placed in a residential facility for a minimum period of time of twelve months without regard to the offender’s place of residence. In sum, by the enactment of Public Act 99-26, the General Assembly eliminated the court’s authority to banish an offender from his or her hometown and substituted, instead, a provision granting the court the authority to require residential placement for a minimum period of twelve months. In entering an order for placement as well as for banishment, the court, in this instance, exceeded its statutory authority. For that reason, I would reverse the judgment of the court denying the respondent’s motion to correct an illegal sentence and remand this matter to the trial court with direction to grant the motion to vacate the banishment provision. Accordingly, I respectfully dissent.

       General Statutes § 46b-140 (i) provides: “If the delinquent act for which the child is committed to the Department of Children and Families is a serious juvenile offense, the court may set a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department, as determined by the Commissioner of Children and Families. The setting of such minimum period shall be in the form of an order of the court included in the mittimus. For good cause shown in the form of an affidavit annexed thereto, the Department of Children and Families, the parent or guardian of the child or the child may petition the court for modification of any such order.”

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       At the respondent’s dispositional hearing held on September 23, 2005, the victim addressed the court. “My life has been forcibly changed since the night of September 26, 2003. . . . My clock has been stopped since that night. There is not a day that I don’t think about what had happened to me that night. I’m often paralyzed by flashbacks. Everyday life reminds me of the attack. When I stop at [a] red light I get anxious because it reminds me of when I was screaming at—with guns pointed in my face. When I open the trunk, I remember the time that I was put in it, and I’m struck with the same feelings, thoughts and fears that I had the time I was in the trunk and asking for help to the police. ... I remember how they tried to snap my neck and the feeling of a rock being smashed against my head repeatedly even after I pretended to be dead.”

       General Statutes § 17a-15 provides in relevant part: “(a) The commissioner shall prepare and maintain a written plan for care, treatment and permanent placement of every child and youth under the commissioner’s supervision ....
      “(b) The commissioner shall at least every six months, review the plan of each child and youth under the commissioner’s supervision for the purpose of determining whether such plan is appropriate and make any appropriate modifications to such plan.”

       Meriden is located in New Haven County.

       The motion provided that it was made by the state “acting through the [¡Juvenile [pjrosecutor.”

       “Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute .... [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . . Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) State v. Mapp, 118 Conn. App. 470, 475, 984 A.2d 108 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010).

       The respondent argues that the court exceeded its statutory authority in issuing the order of banishment. He argues that a banishment from a geographical location is beyond the power of a court when setting “a minimum period of twelve months during which the child shall be placed in a residential facility operated by or under contract with said department . . . .” General Statutes § 46b-140 (i). Moreover, he contends that this circumstance must be considered in analyzing the first element of the Loisel test. We disagree. Whether the court exceeded its statutory authority in issuing the banishment order in that it restricted the respondent from New Haven County has no bearing on the determination of whether “there exists a ‘functionally insurmountable time [constraint]’ Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 367; or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. 383.

       After the appeal was filed in Earl B., the department released him from the training school and transferred him to a residential treatment program in Pennsylvania. Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 169.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       We note that had the respondent challenged the validity of his banishment at the same time he challenged the conditions of his commitment; see Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 163; his claim would likely not have become moot because Earl B. was decided on July 29, 2008, eight months before the banishment order expired.

       Additionally, the forty-two month banishment order at issue in this case was more than twice as long as the eighteen month commitments in In re William D., 284 Conn. 305, 308, 933 A.2d 1147 (2007), and In re Steven M., supra, 264 Conn. 752. Further, the appeals in those cases became moot because the respondents in those cases became eighteen years of age during the pendency of their appeals and, as a result, were no longer subject to the jurisdiction of the department. See In re William D., supra, 309 n.5; In re Steven M., supra, 754. In contrast, the respondent in this case became eighteen years of age before filing his appeal; neither party argues that the enforcement of the banishment order was affected by his attaining the age of majority.

       Although under the Loisel test an individual must meet each prong to satisfy its requirements, given the unique facts and circumstances of this case, we address the dissent’s analysis of the second prong of the test in its determination that the banishment order here was capable of repetition yet evades review. That prong requires that “there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate.” Loisel v. Rowe, supra, 233 Conn. 382. “This analysis entails two separate inquiries: (1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation.” Id., 384.
      The dissent bases the conclusion that the order meets the first requirement under the second prong “not by reference to any anecdotal evidence of a raft of cases in which banishment orders have been issued, but rather on the apparent maintenance by the judicial branch of an outdated form which appears to contemplate the issuance of such an order.” That form, JD-JM-16 Rev. 9-2002, indicates that a child may be “[pjlaced out of said child’s . . . town of residence” for a period of time. Initially, we note that nowhere on the form does it state that such placement requires the exclusion of the child from his or her town of residence for the duration of the placement. Banishment, by its very nature, contemplates the exclusion of the individual banished from an area for a specified time period, as evidenced by the order in this case. See Black’s Law Dictionary (6th Ed. 1990) (“Banishment. A punishment inflicted upon criminals, by compelling them to leave a country for a specified period of time, or for life.”).
      Moreover, the dissent’s assertion that the “continuing use of this outdated form provides an adequate basis for [it] to conclude that there is a reasonable likelihood that the legal efficacy of banishment orders in juvenile delinquency matters will likely arise in the future,” is undermined by the dearth of such juvenile cases both cited to by the dissent and found in our research. The dissent cites only to the docket from one unnamed case in which a trial judge issued a banishment order, as well as an unpublished trial court opinion from 1999 in which the court was confronted with a banishment order. The latter case concerned an adult habeas trial that involved a condition of probation that the respondent leave Connecticut and never return. “Loisel does not provide an exception to the mootness doctrine when it is merely possible that an issue could recur, but states instead that ‘there must be a reasonable likelihood that the question presented in the pending case will arise again in the future’ . . . .” (Citation omitted.) Carmona v. Commissioner of Correction, 110 Conn. App. 194, 199, 954 A2d 265 (2008). We conclude that the trial court’s use of JD-JM-16 Rev. 9-2002, that form’s continued use by our courts and the cases cited by the dissent fail to establish a reasonable likelihood that a banishment order such as the one at issue here will arise again in the future. Therefore, the second prong of Loisel is not met.

       Nowhere in § 46b-140 do I fmd authorization for the court to enter a freestanding order of banishment. Therefore, even if such an order was part of a plea agreement, it would constitute an illegal sentence if the court had no authority to issue that order just the same as if a court had sentenced a person to a period of time beyond the maximum prescribed by statute.
      Although the court has the authority, pursuant to § 46b-140 (b) to place the child on probation and to establish conditions of probation, the respondent, in this instance, was committed to the department as an alternative to probation. Thus, we are not confronted in this instance with the question of whether banishment can be imposed as a reasonable condition of probation.

       The respondent became eighteen years of age on July 21, 2008. As a consequence, he was no longer in the custody of the department on the date of the court’s November 6, 2008 orders. Additionally, the forty-two month banishment order expired, by its own terms, on March 23, 2009, while this appeal was pending.

      I note that Earl B. v. Commissioner of Children & Families, supra, 288 Conn. 163, involves the same juvenile offender as the case at hand, but raises different claims on appeal.

       While this appeal was pending, the state filed a motion to dismiss on the basis of mootness. In return, the respondent furnished this court with the docket from one case in which a trial judge issued a banishment order. Additionally, there is an unpublished opinion, dated August 25, 1999, in which the trial court was confronted with a banishment order. Although the efficacy of the banishment order was not an issue for adjudication in that matter, the court noted that such orders elsewhere had generally been found to be unconstitutional. Burke v. Wegner, Superior Court, judicial district of New Haven, Docket Nos. CV-98-0413665S, CV-98-0414260 (August 25, 1999) (25 Conn. L. Rptr. 313).

       In this instance, the fact that the trial court came to the conclusion that it did not have the authority to modify the banishment order is not an aid to determining whether such an order, made at sentencing, is likely to evade review. Such an order, if of any legal vitality, would by necessity have to be part of the court’s order of commitment because the court is limited by statute to either ordering certain services for a delinquent or committing the child to the department. See General Statutes § 46b-140 (f). The purpose of apermanency hearing is to determine whether the terms of a commitment to the department should be modified in the best interest of the child and the community. See General Statutes § 46b-141 (c). Our Supreme Court has opined that “the purpose of the comprehensive statutory treatment of ‘juvenile delinquents’ is clinical and rehabilitative, rather than retributive or punitive” and that “[t]he objective of juvenile court proceedings is to determin[e] the needs of the child and of society rather than adjudicate] criminal conduct.” (Internal quotation marks omitted.). In re Tyvonne M., 211 Conn. 151, 160, 558 A.2d 661 (1989). Although the heinous behavior giving rise to this respondent’s commitment stretches taut the notion of rehabilitation and concerns for a child’s interest, that is precisely the mandate that governs juvenile proceedings. It stands to reason, therefore, that at a permanency hearing for a child committed to the department, the court be in a position to modify all of the terms of a child’s disposition so as to fairly meet the needs of society and the juvenile offender.

       Long Lane School, which was closed in 2003, was a juvenile facility that was maintained by the department. See In re Steven M., 68 Conn. App. 427, 429 n.4, 789 A.2d 1169 (2002), rev’d in part on other grounds, 264 Conn. 747, 826 A.2d 156 (2003).

       That is not to suggest, however, that if a child is placed on probation, the court is powerless to make an order of exclusion as a condition of probation. In doing so, however, a court should be mindful that banishment has historically been viewed as a form of punishment. “Banishment was a weapon in the English legal arsenal for centuries . . . but it was always adjudged a harsh punishment even by men who were accustomed to brutality in the administration of criminal justice.” (Citation omitted; internal quotation marks omitted.) Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 n.23, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). In reviewing such an order, one court has observed: “Conditions of banishment affect the probationer’s basic constitutional rights of freedom of travel, association and assembly. . . . Thus, in order to survive constitutional scrutiny, such conditions not only must be reasonably related to present or future criminality, but also must be narrowly drawn and specifically tailored to the individual probationer.” (Citations omitted.) In re Babak S., 18 Cal. App. 4th 1077, 1084, 22 Cal. Rptr. 2d 893 (1993), review denied, 1993 Cal. LEXIS 6522 (December 15, 1993). In this instance, because the respondent was not placed on probation, it is beyond the scope of this dissent to discuss what narrowly drawn and specifically tailored conditions of banishment would have been reasonable under these circumstances.

       Although the form utilized by the judicial branch purports to be current through 2002, it appears to me that the branch has not accommodated the form to the 1999 repeal and reenactment of § 46b-140.