author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. GARY J. TRICARICO
    (AC 29939)
    Bishop, Beach and Borden, Js.

      Argued February 1
    officially released May 11, 2010

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin J. Murphy, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Gary J. Tricarico, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that (1) various alleged improprieties on the part of the prosecutor deprived him of a fair trial, (2) the trial court improperly admitted certain constancy of accusation testimony, (3) the court improperly denied his motion for acquittal and (4) the court improperly denied his motion for a mistrial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a friend of the parents of Kellie. Beginning in February or March, 2006, the parents allowed the defendant to stay in their house, where he slept on the couch. The defendant was approximately thirty-eight years old at the time and got along very well with Kellie, who was eight years old at the time. On April 22, 2006, the parents ordered the defendant to leave their home after Kellie told them that he had touched her “private part” and French kissed her on one occasion. The parents did not report the incident to the police until one week later, on April 30, 2006, because they “[did not] know where to go with it,” and they were afraid that the department of children and families would take their children. The defendant told the police that he had “stuck his tongue in [Kellie’s] mouth” but that he did so “in order to teach her a lesson to not just kiss people . . . .”

The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a-70, risk of injury to a child in violation of General Statutes (Rev. to 2005) § 53-21 (a) (2) for allegedly touching Kellie’s private parts and risk of injury to a child in violation of § 53-21 (a) (1) for allegedly French kissing Kellie. The state withdrew the sexual assault charge, and the jury found the defendant not guilty of the risk of injury charge relating to the allegations that he had touched KeUie’s private parts. The jury found the defendant guilty of risk of injury in violation of § 53-21 (a) (1) for French kissing Kellie. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was denied a fair trial as a result of various improprieties on the part of the prosecutor. We are not persuaded.

“In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 808, 981 A.2d 1030 (2009).

The defendant’s claims of prosecutorial impropriety appear to be that the prosecutor improperly aroused the emotions of the jury in eliciting testimony that the defendant had engaged in prior uncharged misconduct and that the prosecutor improperly bolstered the credibility of a detective witness. The defendant also claims that the prosecutor, during closing argument, improperly bolstered the credibility of his witnesses and appealed to the emotions of the jury. The defendant contends that the cumulative effect of the alleged improprieties deprived him of a fair trial. At trial, however, the defendant admitted to putting his tongue in Kellie’s mouth, leaving the state only to satisfy the jury that the act constituted a risk of injury to the child’s physical or moral well-being. Because the only offense that implicated the credibility of the state’s witnesses was the alleged intimate touching, and the defendant was acquitted of that charge, it is difficult to perceive how the prosecutor’s alleged improprieties, if they occurred, could have had any effect on the trial’s outcome. In short, because the defendant’s conviction did not stem from any of the alleged improprieties, we need not analyze them in detail, and his claims in this regard fail.

II

The defendant also claims that the court improperly admitted certain constancy of accusation testimony. Specifically, the defendant contends that the court improperly admitted the testimony of Kellie’s father for the purpose of constancy of accusation before Kellie testified and that the court should have instructed the jury regarding constancy of accusation as to the father’s testimony. The defendant concedes that he did not preserve this claim at trial but seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) The defendant’s claim fails under the second prong of Golding because it is well settled that a claim that the court improperly admitted constancy of accusation testimony is not constitutional in nature. See State v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005); State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996).

Ill

The defendant next claims that the court improperly denied his motion for acquittal because his conviction was based on insufficient evidence. Although the defendant concedes that there was evidence that he had French kissed Kellie, he argues that the state failed to prove that (1) he acted wilfully or unlawfully and (2) the act was likely to impair the morals of Kellie. We are unpersuaded.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) State v. Smith, 110 Conn. App. 70, 75, 954 A.2d 202, cert. denied, 289 Conn. 954, 961 A.2d 422 (2008).

Section 53-21 (a) (1) makes it a crime for any person “wilfully or unlawfully [to cause] or [to permit] any child under the age of sixteen years to be placed in such a situation that the Ufe or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or [to do] any act likely to impair the health or morals of any such child . . . .” (Emphasis added.) As to the wilful aspect of this statute, the record reveals that the evidence was plain that the defendant intentionally placed his tongue inside the child’s mouth. Because this aspect of the risk of injury statute requires only the general intent to commit the act and not a specific intent to bring about its consequences, this aspect of the statute was well satisfied by the defendant’s own admissions. See State v. Martin, 189 Conn. 1, 12-13, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).

In his appellate brief, the defendant cites to the evidence of his actions. Kellie testified: “He was trying to kiss me and touching me”; “[H]e tried to kiss me, and he was touching me at the private part”; “He was teaching me how to kiss like a regular way”; and, “He was touching me tongue to tongue.” The police detective testified that “[the defendant] had informed me that the victim in this particular case had continued kissing him. So, in order to teach her a lesson to not just kiss people, he, upon kissing her, stuck his tongue in her mouth and she withdrew very quickly.” He stated that the defendant explained that his purpose in putting his tongue in Kellie’s mouth was “[t]o teach her a lesson not to kiss people.”

The defendant contends that the state did not proffer sufficient evidence to establish that he acted illegally or in a manner likely to impair Kellie’s morals because he stuck his tongue into her mouth in order to teach her not to just go around kissing people. Because the jury reasonably could have inferred from the evidence that the act of an adult man placing his tongue into the mouth of an eight year old girl was likely to have impaired her morals, we reject the defendant’s claim.

IV

The defendant finally claims that the court improperly denied his motion for a mistrial. He asserts that the prosecutor’s use of props dming his rebuttal argument, namely, a teddy bear and a McDonald’s cup, improperly aroused the emotions of the jury and that the court’s curative instruction was insufficient to remedy the resulting harm. We are unpersuaded.

During his rebuttal argument, the prosecutor displayed and briefly referred to a medium sized McDonald’s cup and a teddy bear. Following argument, the court asked the prosecutor if he had shown those props to defense counsel prior to displaying them to the jury. The prosecutor indicated that he had not and did not think that he was required to because they were merely demonstrative tools that he employed to support his argument that the parents were “simple” and “hardworking” and to remind the jury that Kellie was eight years old. After the court raised this issue, the defendant orally moved for a mistrial. The court denied the defendant’s motion, stating that irreparable damage had not been done and that it believed that the situation could be remedied with a curative instruction. The court instructed the jury as follows: “Dining the summation of the assistant state’s attorney, certain, what I would characterize as props, were displayed to you. They are not evidence and were never admitted into evidence, and, therefore, are not to be considered by you in any way in your consideration of the facts or in your deliberations. You must base your verdict on the evidence presented and the law as instructed, and not on the basis of any emotions or sympathy.”

“The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessaiy to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006); see also Practice Book § 42-43.

Our Supreme Court has stated: “Of course, counsel must refrain from injecting into closing argument extraneous matters unsupported by the record, and counsel's use, during closing argument, of props that are not in evidence creates a risk of diverting the jury’s attention to facts or issues not properly before it. Nevertheless, counsel is entitled to considerable leeway in deciding how best to highlight or to underscore the facts, and the reasonable inferences to be drawn therefrom, for which there is adequate support in the record. We therefore never have categorically barred counsel’s use of such rhetorical devices, be they linguistic or in the form of visual aids, as long as there is no reasonable likelihood that the particular device employed will confuse the jury or otherwise prejudice the opposing party. Indeed, to our knowledge, no court has erected a per se bar to the use of visual aids by counsel during closing arguments. On the contrary, the use of such aids is a matter entrusted to the sound discretion of the trial court.” State v. Ancona, 270 Conn. 568, 597-98, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005).

Here, the prosecutor used the props briefly only during his rebuttal argument. The defendant conceded that the use of props during argument is not, in itself, improper but contends that he and the court should have been notified prior to their use before the jury. Although we agree that it is good practice to seek the court’s permission and to notify opposing counsel of one’s intention to use props during argument, there is no rule requiring such notification. Furthermore, the prosecutor’s reference to the McDonald’s cup to remind the jury that if Kellie’s parents were “rocket scientists,” they may have promptly reported Kellie’s accusations, was likely more offensive to the jury than it was prejudicial to the defendant, and the teddy bear, although not in evidence, was used to remind the jury that Kellie was a child. Due to the fact that the age of the victim is an element of the offense of risk of injury, and because Kellie had testified while holding a similar stuffed animal, the prosecutor’s use of that prop was not likely to have confused the jurors or to have aroused their sympathies. Because, under the circumstances of this case, there was nothing overly prejudicial or unduly distracting about the props, we do not believe that their use necessarily was improper. Accordingly, the court properly denied the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       The defendant also seeks review under the plain error doctrine. See Practice Book § 60-5. Because we do not believe that the defendant’s claim constitutes a manifest injustice, we decline to afford such extraordinary review.

       The defendant also claims that the court used an improper standard of review in denying his motion for acquittal. He bases his claim on the court’s reference to “some” evidence versus “sufficient” evidence. Because the court’s reference to “some” evidence was singular, and because the court indicated that it would order a judgment of acquittal for any offense charged if the evidence did not reasonably permit a finding of guilty, the standard set forth in Practice Book § 42-40, this claim is without merit.

       There was evidence that Kellie’s mother worked at a McDonald’s restaurant.

       While testifying, Kellie had held a stuffed animal in her lap, without objection by the defendant.

       Pursuant to Practice Book § 42-43, “[u]pon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”


source: Caselaw Access Project

license: Public Domain

text:
    JACK SMITH v. COMMISSIONER OF CORRECTION
    (AC 30278)
    Bishop, Harper and West, Js.

      Argued February 3
    officially released May 11, 2010

      Mark M. Rembish, special public defender, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Jack Smith, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he received effective assistance of counsel. We affirm the judgment of the habeas court.

The following factual and procedural history is relevant to our resolution of the petitioner’s claim. The petitioner was the defendant in six different criminal cases pending in the Superior Court in the judicial district of Stamford-Norwaik. In late August or early September, 2000, the petitioner hired attorney Christian Bujdud, who had previously represented the petitioner on multiple occasions, to represent him in all of the pending criminal cases. Bujdud participated in pretrial negotiations with the state and the court, Nigro, J., and, on October 12, 2000, presented the petitioner with two alternative plea offers, one from the state and one from the court. In exchange for agreeing to plead guilty to two counts of robbery in the first degree, the state offered a “capped” fifteen year sentence with a reserved right to argue for a lesser sentence. Alternatively, the court made an offer that if the petitioner pleaded guilty to the same charges, the court would sentence him to two concurrent terms of twelve years each with five years of special parole. Under the court’s proposal, the petitioner would not retain the right to argue for a lesser sentence. On the same day the petitioner was presented with the alternate offers, he accepted the state’s offer. Accordingly, he pleaded guilty to two counts of robbery in the first degree in violation of General Statutes § 53a-134 in exchange for a sentence of not more than fifteen years total with a right to argue for less. During the plea canvass, the court cautioned the petitioner that, should he proceed with the state’s offer, it was unlikely that the court would sentence him to less than fifteen years, in spite of his right to argue, unless the presentence investigation and probation report revealed something extraordinary in his favor. In response to this caution, the petitioner indicated that he understood the circumstances and that he still wanted to plead guilty under the terms offered by the state. On December 14, 2000, the court, Nigro, J., sentenced the petitioner to a total effective period of incarceration of fifteen years.

On September 27, 2004, the petitioner filed a petition for a writ of habeas corpus, in which he claimed that he had been denied the effective assistance of counsel in his underlying criminal matter because he had not been properly advised by his attorney at the time of the guilty pleas. Specifically, the petitioner claimed that Bujdud improperly recommended that he accept the offer of fifteen years with the right to argue for less, despite the fact that Bujdud heard the court’s warning that it was unlikely to impose a sentence below the fifteen year cap, and that Bujdud knew or should have known that the presentence investigation report would not reveal any extraordinary favorable information. Additionally, the petitioner alleged that at the sentencing hearing, Bujdud failed to present any facts to the court to justify a downward departure from the fifteen year cap. Finally, the petitioner claimed that, but for Bujdud’s advice, he would not have received a sentence greater than twelve years. Following a trial to the court, Swords, J., the petition was denied. On August 7, 2008, the petitioner filed a petition for certification to appeal, which was granted. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner first claims that the habeas court improperly found that he received effective assistance of counsel. We disagree.

The following additional facts are relevant to our resolution of the petitioner’s claim. At the habeas trial, the court heard testimony from the petitioner, attorney Jeffrey Beck, the petitioner’s expert witness, and Buj-dud. The petitioner testified that during the plea canvass, after the court had cautioned that it was unlikely that it would impose a sentence shorter than fifteen years unless the presentence investigation report contained new information, he did not think that the capped fifteen year sentence was his best option. He testified that he then spoke briefly with Bujdud off the record, and he claimed that Bujdud assured him that the capped sentence was his best option. The petitioner testified further that he relied on Bujdud’s advice, and that, but for this advice, he would have accepted the court’s initial offer and taken the offer of twelve years to serve. The petitioner admitted, however, that Bujdud did not force him to accept the plea offer and acknowledged that the decision was his alone.

Beck, who testified that he had represented approximately 1000 criminal defendants in his legal career, appeared as an expert witness on behalf of the petitioner. Beck testified that, based on the court’s comments during the plea canvass, the fifteen year sentence seemed to be a foregone conclusion, and Bujdud should have asked for a recess or a continuance to meet with the petitioner and conduct a mock presentence interview to determine whether there was anything in the petitioner’s background that likely would have caused the judge to impose a sentence of less than fifteen years. Additionally, Beck expressed the view that there was nothing in the petitioner’s background that likely would have caused the judge to impose a sentence of less than fifteen years. Beck also testified that a reasonably competent attorney would not have recommended that the petitioner accept the fifteen year offer with a right to argue for a lesser period of incarceration. On cross-examination, however, Beck conceded that he did not know if October 12, 2000, had been set as a date on which the petitioner had to accept or reject any pending offers, that he had not spoken to the prosecutor who handled the petitioner’s case and that he had only handled about twelve cases in Stamford, one of which was before Judge Nigro.

Bujdud, who had handled several thousand criminal cases, testified that he had participated in pretrial discussions in the underlying criminal matter and that he had informed the court of his prior representation of the petitioner, the petitioner’s drug dependency, prior criminal history, family history, the fact that the petitioner had never been incarcerated and that the crimes for which the petitioner was charged were all drug related. Bujdud explained that he had met with the petitioner and reviewed the respective offers and the consequences of each option. Bujdud testified that the petitioner insisted that he would not accept the twelve year offer. Bujdud stated that he did not make a recommendation as to which offer the petitioner should accept, but that he advised the petitioner that even with the right to argue for less he could still be sentenced to fifteen years of incarceration. Bujdud asserted that he never told the petitioner to reject the twelve year offer. He testified that during the plea canvass, after the court’s comments, he spoke with the petitioner off the record, during which he told the petitioner that they could pass the case to discuss his options further but the petitioner declined, saying that he “didn’t want to take the twelve years,” that he “wasn’t going to accept twelve years” and that “[he’s] not doing twelve years, you argue for less.” Bujdud also testified that he was surprised by the sentence the petitioner received. He had appeared before Judge Nigro for criminal sentencing hearings on ten to seventeen previous occasions and had never seen the court impose the maximum sentence authorized under a plea agreement with a cap. Bujdud testified that he met with the petitioner on the day of his sentencing and went over the presentence report with him and that at the sentencing hearing, he advocated for a sentence of fifteen years, suspended after seven years.

The habeas court found the petitioner’s testimony that Bujdud had recommended that he take the offer involving a fifteen year sentence with the right to argue for less not to be credible. Conversely, the court found credible Buj dud’s testimony that he gave no specific recommendation to the petitioner. On the basis of the court’s factual finding that Bujdud did not recommend that the petitioner take the state’s offer, the court concluded that the petitioner had failed to prove the heart of his claim regarding advice he claimed Bujdud had given to him.

In his closing argument before the habeas court, the petitioner also claimed that Bujdud had been ineffective for failing to advise him to accept the twelve year offer. In response, the court determined that Bujdud did not have a duty to make a recommendation as to which offer to accept. Rather, the court found that Bujdud used a reasonable approach to his representation of the petitioner by discussing with him the consequences of the two offers, while not recommending one over the other. The court concluded that Bujdud’s representation and advice were “squarely within the wide range of reasonableness” that is required of a competent attorney. (Internal quotation marks omitted.) The petitioner now challenges the court’s conclusion.

Initially, we set forth the well established standard of review that “[i]n a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Dorce v. Commissioner of Correction, 118 Conn. App. 750, 753, 984 A.2d 1173 (2010). We note, also, that “[i]t is well established that a reviewing court is not in the position to make credibility determinations. . . . This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn. App. 120, 125-26, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).

We analyze claims of ineffective assistance of counsel under the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In Strickland . . . the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Dorce v. Commissioner of Correction, supra, 118 Conn. App. 753-54. “To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn. App. 565, 568, 984 A.2d 793 (2009). “For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Dorce v. Commissioner of Correction, supra, 754. “A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Internal quotation marks omitted.) Id.

In this instance, we review the petitioner’s claim of ineffective assistance of counsel first by measuring the record and the court’s findings in light of the performance prong of the test set forth in Strickland. Upon careful review of the record, we conclude that the petitioner has failed to “demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Turner v. Commissioner of Correction, supra, 118 Conn. App. 568.

In its memorandum of decision, the court specifically noted that it found the petitioner’s testimony that Buj-dud had recommended that he accept the fifteen year offer to be not credible. Instead, the court credited Bujdud’s testimony that he gave no specific recommendation. Based on the finding that Bujdud did not recommend that the petitioner accept the fifteen year offer, the court found that the petitioner had failed to prove that Bujdud had rendered deficient performance by recommending acceptance of that offer. The court was in the best position to review the credibility of the witnesses and, on appeal, we defer to the court’s assessment. See Lewis v. Commissioner of Correction, supra, 117 Conn. App. 125-26. As noted, we do not disturb the court’s factual findings unless they are clearly erroneous. See Dorce v. Commissioner of Correction, supra, 118 Conn. App. 753. The record in this instance amply supports the court’s conclusions in this regard. Based on the facts reasonably found, the court correctly concluded that the petitioner had failed to meet his burden of proving that Bujdud rendered deficient performance by recommending that the petitioner accept the fifteen year offer.

As to the petitioner’s claim that Bujdud rendered deficient performance by failing to recommend affirmatively that the petitioner accept the offer for a flat sentence of twelve years with five years of special parole, we find no fault in the court’s determination that Bujdud was under no duty to recommend which of the alternate plea offers he should accept. An attorney has an obligation to inform his client of any plea offers, and to meaningfully explain those offers. Sanders v. Commissioner of Correction, 83 Conn. App. 543, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). Under certain circumstances, failing to advise a client to accept a plea offer, rather than to go forward with a trial, may amount to ineffective assistance. See Ebron v. Commissioner of Correction, 120 Conn. App. 560, 573, 992 A.2d 1200 (2010), citing United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998). However, “the ultimate decision whether to plead guilty must be made by the defendant. . . . And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. . . . Counsel’s conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [Representation is an art . . . and [t]here are countless ways to provide effective assistance in any given case . . . .” (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 87 Conn. App. 517, 524, 865 A.2d 1231 (2005). The court found that Bujdud properly handled the alternate offers in his representation of the petitioner by discussing with him the consequences of each offer while leaving the ultimate choice to the petitioner. The court concluded that Bujdud’s representation and advice were “squarely within the wide range of reasonableness” that is required of a competent attorney. (Internal quotation marks omitted.) We agree. The court properly determined that the petitioner failed to show that he had been deprived of the effective assistance of counsel in his underlying criminal matter.

The judgment is affirmed.

In this opinion the other judges concurred.

      The petitioner also claims that, in assessing his claim of ineffective assistance, the court applied an improper legal standard. In order to succeed on a claim of ineffective assistance of counsel, the petitioner must prove both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On appeal, the petitioner claims that the court improperly applied the prejudice standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong for cases involving pleas, rather than the prejudice prong under Strickland. Strickland v. Washington, supra, 687. Because the court found that the petitioner had failed to prove deficient performance by his attorney, it did not need to address the issue of prejudice. Further, because we agree with the court that the petitioner failed to prove that his attorney’s performance was deficient, we need not reach the question of whether the court applied the proper standard for determining prejudice.

       The petitioner had cases pending for docket numbers CR-99-134322, CR-99-089993, CR-99-089994, CR-00-131532, CR-00-132802 and CR-00-133017, in which he was charged with, inter alia, six counts of robbery in the first degree, two counts of larceny in the third degree, two counts of burglary in the third degree and three counts of larceny in the sixth degree.

       After he was arrested on the relevant charges in June and July, 2000, and prior to hiring attorney Bujdud, the petitioner was represented by attorney John Regan. During the period in which he was represented by Regan, the state made the petitioner a plea offer of fifteen years to serve.

       The petitioner pleaded guilty to robbery charges in two of the open files, CR-99-089993 and CR-00-133017, and, pursuant to the plea agreement, the state nolled all of the remaining charges in those two files as well as in the petitioner’s four other open files.

       During the plea canvass the court stated: “I don’t want to have [the petitioner] misunderstand. To me, a cap means that’s the most likely sentence unless there’s something in his presentence investigation report to indicate that he’s rescued someone from a burning building and received a reward for it or has [a] substantial previous criminal record or some other things [that] speak on his behalf. So, if it’s a cap, don’t misunderstand. The [presentence investigation report] has got to indicate that there’s something in his background that would warrant me in giving him less than fifteen years.”

       As noted in footnote 1 of this opinion, the petitioner argues in his second claim that the modified prejudice prong from Hill is not applicable in this case. Because we decide this case based on the performance prong under Strickland, we do not reach the petitioner’s claim regarding the prejudice prong.


author: STOUGHTON, J.

text:
    NELSON A. BARBER v. SUZANNE S. BARBER
    (AC 30658)
    DiPentima, Harper and Stoughton, Js

    Argued February 1
    officially released May 11, 2010

      James Ryan Mulvey, for the appellant (plaintiff).

      Donald A. Mitchell, for the appellee (defendant).

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

   Opinion

STOUGHTON, J.

The plaintiff, Nelson A. Barber, appeals from the denial of his motion to open the judgment rendered in favor of the defendant, Suzanne S. Barber. The parties, who were formerly married, became partners after the dissolution of their marriage and acquired interests in various properties during their partnership. This appeal arises out of proceedings related to the settlement of their partnership account, in which the trial court ordered an accounting to be performed by an auditor, as stipulated by the parties. The court rendered judgment in accordance with a report filed by the auditor, and the plaintiff appeals from the denial of his motion to open that judgment. On appeal, he claims that the court abused its discretion (1) in denying him a hearing on his objection to the report and (2) by indicating that the role of the auditor pursuant to General Statutes § 52-401 was that of a fact finder tantamount to an arbitrator. We affirm the judgment of the trial court.

Our review of the record discloses the following facts and procedural history. The parties’ marriage was dissolved on February 5,1992. Thereafter, the parties lived together and held themselves out as husband and wife. Following their marital dissolution, but while cohabiting, the parties acquired substantial interests in several real properties as partners. Disagreements arose, and, in June, 2000, the plaintiff initiated an action in which he sought a judgment ascertaining the parties’ respective property interests. He alleged that he was entitled to a beneficial interest in the real property located at 70 Hat Shop Hill Road in Bridgewater (Hat Shop Hill). The defendant, by way of a counterclaim, sought, inter alia, a settlement of the partnership account.

After the pleadings had been closed, the parties entered into a stipulation, which was approved by the court, for an accounting of all partnership assets to be conducted in accordance with § 52-401 et seq. by a committee or an auditor to be selected by the parties. The parties thereafter stipulated to the appointment of J. Allen Kosowsky, a certified public accountant, as the auditor to perform the accounting.

On April 26, 2007, Kosowsky conducted a hearing as required by General Statutes § 52-402 in which both the plaintiff and the defendant gave sworn testimony and presented evidence. He also requested that each party submit accountings of the financial affairs of the partnership. Kosowsky then issued a committee report to the court on July 28, 2008, in which he set forth his findings and conclusions concerning the proper distribution of the partnership assets.

In his report, Kosowsky noted that he had examined all of the financial data, sworn testimony and evidence submitted to him. He reported that his findings were rendered in compliance with § 52-402 and that he used clear and convincing evidence as the standard of proof in reaching his conclusions. Kosowsky stated that although he examined many financial documents, he was presented with no cognizable set of partnership books and records to review. He concluded that the plaintiff, a certified public accountant who had been a chief financial officer of a publicly held company, was the partner responsible for managing the partnership’s assets, transactions, financial reporting and tax matters. The plaintiff also was in a position of special trust as to the defendant, acting on her behalf in partnership matters under a power of attorney. Although the plaintiff was responsible for the financial and tax matters concerning the partnership, he did not maintain adequate books or records, nor did he prepare or file any partnership tax returns. At the hearing, the plaintiff disclosed that various partnership assets, including funds related to the sale of real property, had been transferred into two trusts in which he had a financial interest. Despite being directed by Kosowsky to produce all financial documents related to these trusts, the plaintiff failed to do so.

With respect to the parties’ real property, Kosowsky concluded specifically that the Hat Shop Hill property was owned outright by the defendant and was not a partnership asset. He reasoned that this property was not contemplated by the parties to be a partnership asset; rather, it was given to the defendant in the context of marriage. He therefore did not include the Hat Shop Hill property as part of the accounting, describing it as the parties’ marital residence and thus distinguishing it from the other investment properties at issue. He concluded that two other properties, one in Kent and the other in Nantucket, Massachusetts, were partnership assets. Finally, Kosowsky attached a summary of the assets that he considered to be subject to the accounting and concluded that the plaintiff owed the defendant $369,322.51.

On September 17, 2008, the defendant filed a motion for judgment on the committee report submitted by Kosowsky. The court granted the defendant’s motion for judgment on October 6, 2008, stating that “[n]o objection has been filed to such report [by the plaintiff] .... The report is thorough and contains multiple attachments which provide the basis for the accounting.” On November 18,2008, the plaintiff moved to open the judgment on the ground that he had in fact filed an objection to the report. It is undisputed that this objection was sent timely by fax to the court but that it was never entered into the court file.

In his objection to the report, the plaintiff asserted that Kosowsky erroneously had concluded that the Hat Shop Hill property was not a partnership asset and therefore was distinguished from the other investment properties. He argued that the property was never given to the defendant in the context of marriage and was not a marital residence. In support of this claim, the plaintiff referred to the fact that the parties’ marriage was dissolved in February, 1992, but the Hat Shop Hill property was not acquired until 1997. He also asserted that the defendant had acknowledged by way of sworn testimony that when the parties had decided to end the partnership, they agreed that the plaintiff would take the Nantucket and Kent properties and that she would take the Hat Shop Hill property.

The court, after hearing oral argument, denied the plaintiffs motion to open the judgment. The unsigned transcript reveals that the court considered the objections to the report raised by the plaintiff, determined that Kosowsky—as the trier of fact by the parties’ choice—could accept or reject testimony on the basis of his assessment of credibility and found that Kosowsky’s conclusions were supported by his findings of fact. This appeal followed.

Section 52-402, in general, provides that when an accounting is ordered by the court, the auditor shall hear the parties and their witnesses and examine the books and, after so hearing, shall adjust the balance due as necessary and report to the court. Our Supreme Court has explained: “Where a partner presents a petition in equity against the other partners, stating that the accounts are unsettled and praying for an account, the usual course for the court is to appoint a committee or auditors before whom the parties can produce their accounts and be heard on oath and who will conduct a minute and patient examination of their claims. . . . After the balance due and to whom it is due is ascertained, a report is made to the court, which has power to accept it or reject it. If the report is accepted, a decree may be entered in favor of the partners who are entitled to it and executions will be issued accordingly, whether the debtors are plaintiffs or defendants in the case.” (Citation omitted.) Weidlich v. Weidlich, 147 Conn. 160, 164, 157 A.2d 910 (1960). It is the function of the court, in acting on the report, to determine whether the auditor materially erred in his rulings “or whether other sufficient reason existed why the report should not be accepted and, if no such reason for rejecting . . . the report existed, to render such judgment as the law required upon the facts in the report.” Berkowitz v. Berkowitz, 150 Conn. 637, 645, 192 A.2d 879 (1963). The issue of credibility, however, is for the auditor to determine. See id.

In his motion to open the judgment, the plaintiff asserted, as he argues on appeal, that Kosowsky erroneously concluded that the Hat Shop Hill property was not a partnership asset. He cites the conclusion by Kosowsky that “it was not contemplated by the parties to be a partnership asset. Rather, it was specifically given to [the defendant] in the context of the marriage. ... As this was the marital residence, it is distinguished from other investment properties that are at issue . . . .” The plaintiff also cites to certain testimony of the parties that allegedly weighs against or contradicts Kosowsky’s conclusion.

In an appeal from a denial of a motion to open a judgment, our review is limited to whether the court acted unreasonably and in clear abuse of its discretion. Bojila v. Shramko, 80 Conn. App. 508, 511, 836 A.2d 1207 (2003). “In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Spilke v. Spilke, 116 Conn. App. 590, 595, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).

As set forth previously, the court heard oral argument on the plaintiffs motion to open the judgment. The plaintiff claims that the court made it clear that the purpose of the hearing was not to argue or to present evidence in connection with the merits of Kosowsky’s report but was intended solely to address the motion to open. He contends, therefore, that court abused its discretion in denying him a hearing on his objection to the report.

In granting or denying a motion to open a judgment, the court is required to exercise sound judicial discretion, and its decision will be set aside only for an abuse of such discretion. Bojila v. Shramko, supra, 80 Conn. App. 511. Our review of the unsigned transcript reveals that although the court indicated that the parties were there to address only the motion to open, the plaintiff had ample opportunity to argue his objections to the report. The plaintiff was not harmed by the lack of an evidentiary hearing in connection with the report because the court considered the claims he raised at argument on the motion to open and concluded that they were not sufficient to undermine Kosowsky’s conclusions.

The plaintiffs claims regarding the Hat Shop Hill property, in essence, amount to an attack on the factual findings and credibility assessments made by Kosow-sky. The specific claim that the report was flawed because Kosowsky found that the Hat Shop Hill property was the parties’ marital residence requires little discussion. Although this finding may have been incorrect legally, it was descriptive of the parties’ situation because they held themselves out to the public as husband and wife. Although “cohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties”; Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987); “where the parties have established an unmarried, cohabiting relationship, it is the specific conduct of the parties within that relationship that determines their respective rights and obligations, including the treatment of their individual property.” Herring v. Daniels, 70 Conn. App. 649, 656, 805 A.2d 718 (2002). “Any such finding must be determined by reference to the unique circumstances and arrangements between the parties present in each case. Those matters are questions of fact . . . and can only be determined by evaluating the credibility of the witnesses and weighing conflicting evidence.” Id. The significant finding by Kosowsky was not that the property was acquired after the parties were divorced but, rather, that the property was not contemplated by the parties to be a partnership asset. This finding, according to Kosowsky, was supported by his review of the evidence before him and his credibility determinations, assessments that were well within the scope of his authority as the auditor.

Finally, the plaintiff claims that the court “erred in its indication that the role of the auditor was essentially a fact finder (analogous to an arbitrator), presumably inferring that the court did not have the power to modify or to correct factual errors in the report.” The plaintiff never asked the court to modify or to correct alleged factual errors in the auditor’s report but, instead, requested that the court refuse to render judgment in accordance with the report. More important, in its oral decision denying the plaintiffs motion to open, the court noted correctly that the role of the auditor in this case was that of a trier of fact. The court went on to explain that because the credibility of the witnesses was for Kosowsky to determine, it would not controvert his findings, not having had the opportunity to judge the credibility of the parties. This is manifestly true of findings of fact, which may be reversed only if clearly erroneous or not supported by the evidence. Blacker v. Crapo, 112 Conn. App. 795, 805, 964 A.2d 1241, cert. denied, 291 Conn. 915, 970 A.2d 727 (2009). The auditor, “as the sole arbiter of credibility, [was] free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Id. Kosowsky reported his conclusions to the court after considering the evidence and making his determination as to the credibility of the parties. There was sufficient evidence to support his report, and the court properly accepted and rendered judgment on it. Additionally, the court fully considered the claims made by the plaintiff, and we find no abuse of discretion by the court in denying his motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Kosowsky indicated in his report that this property was located in Washington, Connecticut, our review of the record reveals that he was referring to property located in Kent.

       The record contains no memorandum of decision, nor is there a signed transcript of the oral decision of the trial court. The plaintiff has, however, filed an unsigned transcript containing sufficient detail of the court’s findings and decision, which is an adequate record for our review. See Carrasquillo v. Carlson, 90 Conn. App. 705, 708 n.2, 880 A.2d 904 (2005).

       See Berkowitz v. Berkowitz, supra, 150 Conn. 646 (committee responsible for hearing witnesses, weighing credibility and determining facts in action for accounting); Spitz v. Abrams, 128 Conn. 121, 122, 20 A.2d 616 (1941) (preferable that auditor’s report contain complete recitation of facts); Ferguson v. Cripps, 87 Conn. 241, 245, 87 A. 792 (1913) (“weight of the evidence is for the committee, and his finding upon the evidence is conclusive upon the parties, and they cannot retry the question to the court”); Brady v. Barnes, 42 Conn. 512, 517 (1875) (“[w]hen a case has been referred by the court ... to an auditor, he becomes a statutory tribunal clothed with the power and charged with the duty of hearing all admissible evidence bearing upon the issue raised by the pleadings, of weighing it, and of finding distinctly and explicitly all the facts proven by it”).

       In reviewing Kosowsky’s credibility determinations, the court explained that he made “no point that is unclear, in any way, when he [said]; as part of the committee report, that he found [the plaintiff] to be not credible .... [Although [the plaintiff] was asked on various occasions to give [Kosowsky] certain documents, [the plaintiff] never gave him all of the documents .... [This] not only made [his] job harder, but it left [him] without some information, with regard to the decisions [he] had to make.”