author: FLYNN, C. J.

text:
    JOHNSON LEE v. HARLOW, ADAMS AND FRIEDMAN, P.C., ET AL.
    (AC 28503)
    Flynn, C. J., and Lavine and Beach, Js.

      Argued February 18
    officially released August 4, 2009

      AlanR. Spirer, for the appellant (substitute plaintiff).

      Daniel R. Canavan, with whom, on the brief, were Christopher L. Brigham, Daniel B. Fitzgerald and Stephen P. Wright, for the appellees (defendants).
   Opinion

FLYNN, C. J.

Before us is a case in which the mortgagee that foreclosed the interest in certain Greenwich real estate of the plaintiff, Johnson Lee, did not honor the agreement it had made, as a part of a foreclosure judgment against Lee, to convey a valuable condominium to him but, instead, sold the condominium to another. Following the breach by the mortgagee, Lee brought an action against his former attorneys, the defendants, Harlow, Adams & Friedman, P.C., and Stephen P. Wright, sounding in legal malpractice for their alleged failure to record a copy of the foreclosure judgment on the land records. The court, Hon. Alfred J. Jennings, Jr., judge trial referee, acting on a motion of the defendants, dismissed the action for lack of ripeness because damages were purely hypothetical due to the possibility that Lee could collect a judgment in another pending lawsuit involving the mortgagee and its principals, who had breached the agreement in the foreclosure action. Lee now appeals from the judgment of the trial court dismissing his claims of legal malpractice against the defendants. We conclude that Lee’s claims were ripe for adjudication even though damages could be minimized by a recovery in another pending action against the mortgagee and its principals, and, accordingly, we reverse the judgment of the trial court.

The following facts, as reasonably gleaned from the record, are relevant to our consideration of Lee’s appeal. Lee was a real estate developer who became involved in litigation with his then mortgage lender, the Bank Mart. Lee was represented by the defendants in that litigation. After the failure of the Bank Mart, the Federal Deposit Insurance Corporation was substituted as receiver, and it removed the litigation to federal court (underlying case). After removal, the Federal Deposit Insurance Corporation sold Lee’s loans to BSB Greenwich Mortgage Limited Partnership (BSB Greenwich). Pursuant to an April 28, 1995 amended stipulated judgment of strict foreclosure between BSB Greenwich and Lee in the underlying case, BSB Greenwich received title to a luxury condominium complex, Waterford of Greenwich, which had been owed by Lee’s company. The judgment provided in relevant part that BSB Greenwich would sell twenty-one of the final twenty-two unsold condominium units, and, if the gross sales proceeds of those twenty-one units was equal to or greater than $26.5 million, BSB Greenwich was required to convey the final unsold unit to Lee at no cost. If, however, the gross sales proceeds of those twenty-one units was less than $26.5 million, Lee had a right to purchase the final unit for the amount by which the total sales was less than $26.5 million. Additionally, if Lee elected not to exercise his option to purchase the last unit, BSB Greenwich was required to pay Lee any proceeds from the total sales in excess of $26.5 million, up to a maximum of $1 million, after the final unit was sold.

In a letter dated March 2, 1998, BSB Greenwich notified Lee that the total gross sales from the twenty-one units was $24,674,200 and that he had an option to purchase the remaining unit for $1,825,800. Lee believed that the gross figures supplied by BSB Greenwich were understated, and he forwarded a copy of the March 2, 1998 letter to Wright. On April 17,1998, BSB Greenwich sold the final unit to William M. Duncan and Patricia M. Duncan for $1,275,000 in violation of Lee’s option rights and without Lee’s consent. Upon learning this in August 1998, Lee immediately contacted Wright. Despite these occurrences, from March through December, 1998, Lee and Wright discussed Lee’s option rights, which, Wright assured Lee, were fully protected by law.

On March 30,1999, Lee filed suit against the Duncans in Superior Court; see Lee v. Duncan, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-99-0171435-S (October 31, 2003); claiming that the Dun-cans were not entitled to purchase the final condominium unit. In Lee’s action against the Duncans, the trial court, Hiller, J., rendered summary judgment in the Duncans’ favor. On appeal, we agreed with the trial court that the Duncans lacked actual or constructive notice of Lee’s interest in the unit at the time they purchased it, there being no certified copy of the stipulated judgment of strict foreclosure in the land records as required by General Statutes § 47-36, and the certificate of foreclosure that was filed in the land records stated that BSB Greenwich had “absolute” title in the property. Lee v. Duncan, 88 Conn. App. 319, 326-028, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005).

On March 31, 1999, Lee moved for an order in aid of enforcement of the stipulated judgment against BSB Greenwich in federal court, Lee v. BSB Greenwich Mortgage Ltd. Partnership, United States District Court, District of Connecticut, Docket No. 5:92CV71 (AHN) (motion for order). The District Court ruled in favor of BSB Greenwich on the motion for order, but that ruling was overturned by the United States Court of Appeals for the Second Circuit. Lee v. BSB Greenwich Mortgage Ltd. Partnership, 267 F.3d 172 (2d Cir. 2001). On remand, the District Court recalculated the proceeds from the sales of the condominium units and concluded that the total proceeds were in excess of $26.5 million, and it determined that the final unit should have been deeded to Lee at no cost. Accordingly, on April 2, 2003, it awarded judgment in favor of Lee for $1,275,000, plus 10 percent interest from April 17, 1998. We note that at the time that Judge Jennings ruled on the motion to dismiss, which is the subject of this appeal, no part of that federal judgment had been satisfied. We also are aware that on April 17, 2004, Lee filed an action against BSB Greenwich, its members and its partners in Superior Court claiming that BSB Greenwich had transferred money and assets to avoid paying the judgment. During the course of this appeal, however, Lee and BSB Greenwich entered into a settlement agreement for $750,000.

On May 2, 2000, Lee filed the present malpractice action against the defendants in Superior Court, alleging that his loss of the condominium and the legal fees incurred were due to the malpractice of the defendants. He alleged in part that “had the judgment containing [Lee’s] option rights been properly recorded on the land records of the town of Greenwich, or had other necessary and appropriate action been taken, BSB [Greenwich] would not have been able to convey and/ or sell [the final unit to the Duncans] without [Lee’s] consent.” Lee alleged that the defendants deviated from the standard of care by (1) failing to protect Lee’s option rights, (2) failing to record Lee’s option rights properly and (3) by giving improper and inaccurate advice.

On July 27, 2000, the defendants filed a motion to dismiss, claiming that the case was not ripe for adjudication. The motion alleged that Lee had a federal action, Lee v. BSB Mortgage Ltd. Partnership, supra, United States District Court, Docket No. 5:92CV71 (AHN), pending to enforce the amended stipulated judgment against BSB Greenwich, that a trial had been held in that case in April, 2000, and that a decision would be forthcoming. The defendants argued that the present case was not ripe for adjudication because there existed an alternative basis for relief against BSB Greenwich by means of the motion for order in the federal action. On November 21, 2000, the defendants’ motion was denied by the court, Hon. William B. Lewis, judge trial referee.

On February 2,2001, the defendants filed their answer to Lee’s complaint, and they alleged two special defenses. The first special defense alleged that Lee’s injuries, if any, were caused by his negligence in that he failed to record the stipulated judgment properly, failed to communicate accurately with the defendants, failed to ensure that the stipulated judgment accurately reflected his intentions and that he independently negotiated the terms of the stipulated judgment. The second special defense alleged that Lee failed to take affirmative steps to mitigate damages. Lee denied the special defenses. After Lee filed an amended complaint to correct a typographical error, the defendants filed a new answer asserting only one special defense, alleging only that Lee’s injuries, if any, were caused by his negligence in that he failed to (1) record the stipulated judgment properly, (2) advise the defendants of the option offer and his dispute of the purchase price and (3) timely take action to enforce his rights under the stipulated judgment. This special defense also was denied by Lee.

On March 13, 2006, the defendants filed another motion to dismiss the legal malpractice claim against them, again claiming lack of ripeness. The defendants claimed that Lee “already obtained a $1,275 million judgment against BSB Greenwich ... in an underlying action, which fully compensates him for any damages he purports to seek in this legal malpractice claim against the defendants.” The defendants also alleged that Lee had not taken action to enforce the $1,275 million judgment against BSB Greenwich, and, therefore, the injuries alleged by him merely were hypothetical. In a memorandum of decision filed September 19, 2006, Judge Jennings granted the defendants’ motion to dismiss, concluding that Lee’s claims were not ripe for adjudication. This appeal followed.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts [that] are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) State v. Marsh & McLennan Cos., 286 Conn. 454, 463-64, 944 A.2d 315 (2008). “In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary. . . . Ripeness is a justiciability doctrine, which implicates the court’s subject matter jurisdiction.” (Citation omitted; internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn. App. 323, 335-36, 958 A.2d 1283 (2008).

“[Jjusticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Cadle Co. v. D’Addario, 111 Conn. App. 80, 82, 957 A.2d 536 (2008).

“[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements .... Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 86-87.

“In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages.” Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). When proof of the existence of an attorney-client relationship is conceded, proof of the second element, a wrongful act or omission, normally involves expert testimony as to the existence of a professional duty on the part of the attorney and a departure from it by some negligent act or omission. See Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990).

As to causation: “In legal malpractice actions, the plaintiff typically proves that the defendant attorney’s professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the ‘case-within-a-case.’ 5 R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000) § 33.8, pp. 69-70.” Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 775 n.9, 882 A.2d 653 (2005).

In the present appeal, we are called on to determine whether the court properly held that Lee’s claims of legal malpractice were not ripe for adjudication. Lee argues that he sufficiently alleged each element of the legal malpractice cause of action in his complaint and that each element can be proven. He further argues that, although he “might be able to mitigate his damages through further litigation against BSB [Greenwich] and [its] insiders, [his legal malpractice] claims were not contingent upon such litigation. . . . The defendants’ desire to have the plaintiff mitigate his damages does not make [the] plaintiffs claim[s] nonjusticiable.” We agree that Lee’s action was filed before he knew whether, or to what extent, damages might be minimized by other litigation but conclude that, because the underlying case had concluded, this case, nonetheless, was justiciable. We conclude, therefore, that the court improperly dismissed the action.

In the present case, in rendering its decision, the court focused on the fact that the specific dollar amount of Lee’s damages could not be ascertained at that time. Specifically, the court held that “this legal malpractice action is not ripe for adjudication because of the complexity of the unresolved issues of enforcement or collection of the plaintiffs $1,275 million federal corut judgment in the underlying disputes against BSB [Greenwich] and its partners and the members of the partners. The case at this point is hypothetical. If the plaintiff is successful in collecting its damages in the underlying action, it would not be able to show causation of damages against the attorney-defendants in this action.”

At the outset, we note that we understand the court’s practical dilemma when it was faced with this motion to dismiss. Another action, the 1999 motion for order, had been remanded from the Second Circuit back to the District Court, resulting in a final judgment in favor of Lee in the amount of $1,275 million, plus interest, against BSB Greenwich, which appeared to be uncollectable. The uncollectability of this judgment served as the basis for Lee’s later action, filed in the Superior Court on April 17, 2004, against BSB Greenwich, its members and its partners, claiming that BSB Greenwich had transferred money and assets to avoid paying the judgment against it. When the trial court was considering the defendants’ motion to dismiss in the present case, the April 17, 2004 action remained pending and had not been heard. BSB Greenwich, its members and its partners, as the parties in interest to the amended stipulated judgment of strict foreclosure, were the parties primarily obligated to Lee because, if they had fulfilled their obligations under the stipulation, the condominium unit at issue would not have been sold to the Duncans, depriving Lee of his interest in the unit, and Lee would not have had to have sought further relief to secure his rights under the stipulation.

In ruling on the defendants’ motion to dismiss, the court explained that the issues were complex and that Lee’s damages purely were hypothetical at that point in time because there was a possibility that Lee could collect the full $1,275 million judgment as a result of the April 17, 2004 action, and, relying on Fontanella v. Marcucci, 89 Conn. App. 690, 877 A.2d 828, cert. granted, 275 Conn. 907, 882 A.2d 670 (2005) (appeal withdrawn March 8, 2006), it then held that the “pendency of the underlying litigation tolls the statute of limitations for the legal malpractice action in this case.” Because we understand the court’s mistaken reliance on Fontanella, we take this time to further explain that case and its distinction from the present case.

In Fontanella, the plaintiffs originally had commenced a product liability action against an automobile manufacturer in which they had claimed that injuries suffered as a result of a car accident were caused by a defective seat belt. Id., 694. The seat belt was alleged to have been defective in one of two ways, either by design or by manufacture. Id., 704. During the pendency of the litigation, the vehicle was sold to the plaintiffs’ insurer, allegedly on the advice of the plaintiffs’ attorney, and it was unavailable for inspection or for evidence. Id., 694. The plaintiffs then brought a malpractice claim against their attorney, claiming spoliation of evidence. Id., 694-95. The trial court twice dismissed the malpractice claim after it had been commenced, agreeing with the defendant attorney that the claim was not ripe for adjudication until the underlying product liability case fully was resolved. Id., 692-93 n.2. Once the underlying product liability case fully was resolved, however, and the plaintiffs reinstituted the malpractice claim, the trial court granted the defendant attorney’s next motion to dismiss. This third dismissal was on the ground that the malpractice claim now was barred by the statute of limitations because it had not been timely commenced. Id.

The defendant attorney in Fontanella twice had moved to dismiss the case on the ground that it was unripe for adjudication because the underlying case had not been resolved fully, and the court agreed; once the underlying case fully was resolved, however, the defendant attorney then moved to dismiss the case on the ground that it was barred by the statute of limitations because it had not been commenced timely, and the court agreed with that claim also. On appeal, we recognized that it would be unjust for the law to require such a dismissal because the result would be that the plaintiffs were damned when they did commence the lawsuits and damned when they did not. Accordingly, we did not agree that the statute of limitations had run on the malpractice claim and held, instead, that it had been tolled. Id., 692 n.l. The reason we did not agree, however, was not simply because of the complexity of the case or because the precise dollar amount of the malpractice claim was uncertain; rather, we disagreed that the statute of limitations had run because the underlying case still was in progress and the jury had yet to determine whether there was a design defect in the seat belt. Id., 704-705. If the jury went on to find that the seat belt was defective by design, the actual seat belt from the vehicle that allegedly had caused the plaintiffs’ injuries would not have been necessary to the case because any seat belt having that design also would have been defective and, thus, could have been used for inspection and for evidence in the underlying case. Id. On the other hand, if the plaintiffs’ case rested on defective manufacture, there might have been malpractice if the jury could not assess whether there existed a manufacturing defect because the actual seat belt from the vehicle would have been necessary for such an assessment. Id. Accordingly, if the jury determined that there was a design defect in the seat belt, there could be no malpractice because the seat belt would not have been necessary to the case, there could have been no duty on the part of the attorney to preserve the seat belt, or a breach of any nonexistent duty, and the plaintiffs would not have suffered a legal injury, a necessary element to a claim of legal malpractice.

In short, the underlying case in Fontanella had not been resolved when the earlier motions to dismiss had been granted on ripeness grounds, and, until it was resolved, there remained a question as to whether the actual seat belt was necessary to prove the underlying case, and, therefore, the defendant attorney’s negligence, proximate causation and the plaintiffs’ damages could not have been established. It is for that reason that we concluded that even if the attorney improperly had advised the plaintiffs to allow the insurer to dispose of the vehicle, including its seat belt, the malpractice claim was tolled while the underlying case proceeded because there could be no proof of legal damage proximately caused by this improper advice until the jury had returned a verdict or judgment had been entered against the plaintiffs. If the plaintiffs were to win the underlying case on a design defect theory, there never would be a negligent departure from the professional standards that could be aproxímate cause of legal damage, necessary elements of the legal malpractice cause of action.

As stated previously, to prove any legal malpractice claim, a plaintiff must establish the four necessary elements: (1) an attorney-client relationship; (2) a wrongful act or omission by the attorney; (3) proximate cause; and (4) legal damages. See Mayer v. Biafore, Florek & O’Neill, supra, 245 Conn. 92. Put another way, aplaintiff must prove that there existed an attorney-client relationship and that the client sustained legal injury or damage that proximately was caused by the attorney’s wrongful act or omission. See id.

In Fontanella, the existence of the first element, the attorney-client relationship, was undisputed. However, all of the remaining elements could not have been proven while the underlying case remained in progress. It would be counterintuitive for our law to have mandated that the malpractice case move forward, with the plaintiffs having to prove that but for the attorney’s negligence, the plaintiffs would have been successful in the underlying case, even before that underlying case had been lost and the plaintiffs legally injured because of the attorney’s action or omission. Even if the plaintiffs could have proven that the attorney had given bad advice, the plaintiffs could not have proven that this bad advice proximately caused legal injury before they knew the outcome of the underlying case. In most instances, while the underlying case remains pending, there would be no legal injury proximately caused by the attorney’s action or omission until and unless the plaintiff lost the underlying case.

In Fontanella, the plaintiffs could not prove that the attorney wrongfully and negligently advised them to release the car- to the insurer, resulting in the destruction of the seat belt, until the jury decided which causes of action were proven or not proven, and whether the particular seat belt used in the plaintiffs’ vehicle had been necessary to the case. To have a rule that requires a malpractice case to proceed while the underlying case remains in progress would be incongruous in most instances. It is incongruous because the plaintiff in such a malpractice action would have to pay for expert testimony on the proper standard of care for an attorney. In cases like Fontanella, a products expert likely would be needed as well to prove the merits of the underlying case, for nothing more than nominal damages, because actual damages could not be established while the underlying case was proceeding and there remained a possibility that the plaintiff in that underlying case would be successful. If the plaintiff did succeed in the malpractice case, but that case concluded before the underlying case concluded, the plaintiff, at most, would collect mere nominal damages because of an inability to prove damages. At the same time, the plaintiff would have incurred legal fees and expert witness fees.

Furthermore, if the plaintiff were successful on the malpractice claim and also successful in the underlying case, there would be a judgment of malpractice, which requires the four necessary elements that preceded the successful prosecution of the underlying case, and, the plaintiff, in actuality and despite a judgment to the contrary, would have incurred no legal damage that was proximately caused by the attorney’s action or omission. Since both legal damage and proximate causation are necessary elements of the malpractice cause of action, in such a hypothetical case, where the legal malpractice case proceeded to judgment before the underlying case had concluded, there would have been no malpractice; yet, there would be a judgment to the contrary. This hypothetical convinces us that it simply makes no rational sense to require such a process.

There is an important distinction to be made between cases like Fontanella and the present case. In the present case, although the extent of legal damage was uncertain at the time Lee filed the malpractice claim, the underlying case was over. On the other hand, in Fontanella, at the time of each of the earlier motions to dismiss, the underlying case was awaiting adjudication.

In the present case, taking the plaintiffs allegations to be true, as we must when reviewing the propriety of a dismissal on jurisdictional grounds, the defendants’ malpractice occurred when they failed to file certain documents on the land records and BSB Greenwich sold the last condominium unit, causing Lee to incur expenses in an attempt to secure his rights under the stipulated judgment in the underlying case. If proven, the loss of this unique property, along with the legal expenses to bring suit against the Duncans and BSB Greenwich, and other possible damages, would meet the legal injury element of a legal malpractice claim, despite the fact that Lee, in another pending action against BSB Greenwich and its principals, might recover the $1,275 million for which BSB Greenwich sold the final condominium unit. In short, the underlying case was over, and the bringing of a separate action in an attempt to minimize the damages allegedly caused by the defendants’ failure to file certain documents on the land records at the conclusion of the underlying case would not affect the justiciability of the case. Although the precise amount of damages was uncertain, Lee sufficiently had alleged the necessary elements of a legal malpractice cause of action: he had alleged that there had been an attorney-client relationship and that he had sustained legal injury that was proximately caused by an act or omission of his attorneys.

“Pursuant to Connecticut’s ripeness jurisprudence, as long as it is clear that a plaintiff has suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable.” Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 87-88, citing Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 211-14, 719 A.2d 465 (1998), and Mayer v. Biafore, Florek & O’Neill, supra, 245 Conn. 90-92. The plaintiff in the present case sufficiently alleged that he suffered an injury—a property to which he was entitled was sold without his permission, and he incurred legal expenses allegedly because the defendants failed to file a certified copy of the amended stipulated judgment on the land records. Additionally, he has continued to incur legal expenses in an attempt to collect the moneys due from the sale of the last condominium unit. Whether the defendants ultimately were the legal cause of these injuries is yet to be determined. The cause of action, however, was ripe for adjudication before the trial court. As our Supreme Court recently held in Chapman Lumber, Inc. v. Tager, supra, 89, “even though the amount of the plaintiffs injury was not known with certainty, that circumstance did not render its claims against the defendant unripe and nonjusticiable.”

In Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 73-78, the plaintiff lumber company, which had provided $43,935.44 worth of building materials on credit to a customer, Ronald Scalzo, a self-employed remodeling contractor, sought to recover the amount of Scalzo’s debt from the defendant, Clifford L. Tager, Scalzo’s attorney, claiming, inter alia, that Tager had conspired with Scalzo to defraud the plaintiff. Tager moved to dismiss the plaintiffs action, claiming that the case was not ripe for adjudication because the plaintiff might recover the amount owed by Scalzo through the bankruptcy trustee’s attempt to recover an asset that Scalzo improperly had transferred, which, Tager claimed, rendered the amount of the plaintiffs damages speculative because he might fully recover from Scalzo. Id., 85. Our Supreme Court disagreed and explained: “Although the exact amount of the plaintiffs damages might have remained uncertain when it commenced this action, it nevertheless was abundantly clear that the plaintiff had sustained some damages and that there was no hope of a full recovery from Scalzo.” Id., 87. The court further explained that “the plaintiffs complaint alleged additional injuries that could not have been remedied by a recovery in the bankruptcy court, namely, the costs of collection expended in pursuance of Scalzo. Consequently, even if the plaintiff could have recovered the entirety of the debt in the bankruptcy proceedings, it had alleged additional actionable injuries stemming from the defendant’s conduct such that its causes of action would have remained viable. See . . . Knight v. Furlow, 553 A.2d 1232, 1235 (D.C. 1989) (legal fees and costs expended as result of attorney’s alleged malpractice in drafting will constituted actionable harm, rendering malpractice action ripe, despite fact that case contesting will was still pending).” (Citation omitted.) Chapman Lumber, Inc. v. Tager, supra, 90.

In light of this authority, we conclude that even though the precise amount of Lee’s damages was not known at the time he brought suit, because he was attempting to reduce or to minimize those damages, that uncertainty did not render his claims unripe and nonjusticiable. Lee sufficiently alleged each element in his claims for legal malpractice. That he sought to minimize the damages allegedly caused by the defendants’ malpractice had no implication on his allegation of a legal injury. The amount of his damages may be uncertain because of his continued attempts to minimize those damages, but the fact that he has alleged that he sustained some legal injury is not uncertain. Once some colorable legal injury had occurred, the statute of limitations began to run on his claim of legal malpractice requiring him to commence suit. See Rosenfield v. I. David Marder & Associates, LLC, 110 Conn. App. 679, 686, 956 A.2d 581 (2008).

In Rosenfield, we distinguished Fontanella, a case arising out of a claim of negligent breach of a duty to preserve evidence, when the professional duty had not been established in the underlying case. We said: “Fontanella v. Marcucci, supra, 89 Conn. App. 690, is distinct from the case at bar because in that case, the very existence of legal malpractice was contingent on whether the seat belt that allegedly caused injury had been manufactured defectively or, alternatively, whether the belt and all such belts had been designed defectively. The gist of the plaintiffs malpractice complaint was that the plaintiffs former attorney had been negligent in failing to preserve the belt for expert inspection and use at trial. If the belt had been defective simply because of its design, however, that defect would have been common to all such belts.

“Consequently, in that instance, the belt from any other vehicle could have been used to prove the case, and no legal malpractice would have occurred from failing to preserve the particular belt from the defendant’s automobile. As Fontanella noted, citing Mayer v. Biafore, Florek & O’Neill, [supra, 245 Conn. 88], the first prong of justiciability requires that there be an actual controversy between the parties to the dispute. If there were no consequence or significance to the lack of preservation, there could be no controversy between the plaintiff and the former attorney. Because of that prong, the Appellate Court in Fontanella held that the legal malpractice claim was tolled until that issue was resolved.” Rosenfield v. I. David Marder & Associates, LLC, supra, 110 Conn. App. 691 n.10.

The Louisiana Court of Appeals, in Marchand v. Miazza, 151 So. 2d 372 (La. App. 1963), rejected trying a legal malpractice case before four underlying cases for breach of contract were tried because it would mean trying the underlying cases in a “case within a case” procedure and because damages would be speculative and could, if any of the underlying cases ultimately were won, result in what would amount to double recovery. Id., 376. The court explained: “For the district court to have to try this case at this time would mean that it would have to try all of the issues involved in the other cases to determine whether or not the defendants had breached their contract or been guilty of actionable negligence to the detriment of the plaintiff herein. Even then his finding might be contrary to that finally decided in the four preceding cases. In oral argument counsel for [the] plaintiff frankly admitted that for the district judge in this case to fix damages prior to adjudications in the pending cases, he would have to indulge in speculation of the wildest variety. He would simply have to reach into the air and pull out a figure with regard to each of the four cases .... Another consideration in this case is that if [the] plaintiff is successful in this case and should obtain judgment as prayed for and execute on same, it would not preclude her from continuing with the other four cases and collecting the same amount or a substantial part thereof in those cases, thereby unjustly enriching herself to that extent.” Id.

We also explained in Rosenfield: “A cause of action does not accrue for the purposes of a statute of limitations until all elements are present, including damages, however trivial. However, the occurrence of an act or omission—whether it is a breach of contract or of duty—that causes a direct injury, however slight, may start the statute of limitations running against the right to maintain an action even if the plaintiff is not aware of the injury, and even if all resulting damages have not yet occurred; it is sufficient if nominal damages are recoverable for the breach or for the wrong, and where that is the case, it is unimportant that the actual or substantial damage is not discovered or does not occur until later. The fact that the extent of the damages cannot be determined at the time of the wrongful act does not postpone the running of the statute of limitations.” (Internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC, supra, 110 Conn. App. 686. On the basis of the foregoing analysis, we conclude that Lee’s legal malpractice claims were ripe for adjudication.

Because of the continued practical quandary faced by the Superior Court with regard to the proper procedure to be employed in cases in which the full extent of the plaintiffs damages are not ascertainable at the time the action is commenced, we also take this time to comment on that subject. In the present case, both parties requested that the trial court stay the legal malpractice action pending the resolution of the cases involving BSB Greenwich and its partners. The court denied the request. Lee also requested that the court bifurcate the proceedings, letting the liability portion move forward, while staying the damages portion, pending a resolution of the cases involving BSB Greenwich and its partners. The court denied this request on the ground that it did not have subject matter jurisdiction over the case and, therefore, could not bifurcate proceedings for which it had no jurisdiction.

We understand the difficulty faced by the parties and the trial court when the statute of limitations is running on a legal malpractice claim because some injury has occurred but the full extent of damages cannot be ascertained because of other ongoing litigation. To avoid the parties having to litigate such a cause of action under such circumstances, the court, in the exercise of its discretion, may stay the proceedings.

In a Michigan case, Grace v. Grace, 253 Mich. App. 357, 655 N.W.2d 595 (2003), it was demonstrated how a failure to stay a legal malpractice action can result in a windfall benefit to the person most directly responsible for the harm suffered at the expense of the harmed party’s former attorney. As explained in 3 R. Mallen & J. Smith, Legal Malpractice (2009 Ed.) § 22:5, p. 119: “The failure to stay or abate the action can subject an attorney to an avoidable liability. For example, in September 1992, a Michigan lawyer was sued for failing to discover the husband’s fraud in secreting the full extent of his assets. A year later, the client sued her husband for the same fraud. Relief was denied, but the judgment was reversed in 1996. Upon remand, the client recovered a judgment for $3.1 million against her former husband. In the interim, the legal malpractice action was settled. The court held that the entire amount of the settlement had to be offset from the judgment against the husband, since it was for the same injury.” In such a scenario, the fraudulent party, who was most responsible for the plaintiffs loss, received a windfall from the malpractice case against the plaintiffs former lawyer. The loss should justly fall on the party who principally caused it.

“The issue of another action pending presents two recurring situations. First, the legal malpractice may be premature, if an element of the cause of action needs to be adjudicated. . . . Second, there may be a legally cognizable cause of action for legal malpractice, but the apparent error, causal relationship, or the existence or extent of damage may be affected by the resolution of another proceeding. For example, an action against a New York law firm for failing to obtain a first priority secured interest was stayed, because the amount of recovery from the debtor in bankruptcy was uncertain.” 4 R. Mallen & J. Smith, Legal Malpractice (2009 Ed.) § 35:10, pp. 1199-1200, discussing Washington Mutual Bank v. Law Office of Robert Jay Gumenick, P.C., 561 F. Sup. 2d 410 (S.D.N.Y. 2008).

“The difference between legal prematurity and a discretionary stay were examined in a 1999 Illinois federal court decision. [See Alper v. Altheimer & Gray, 65 F. Sup. 2d 778 (N.D. Ill. 1999).] The clients sold their discount merchandising business for $53 million. They claimed that the lawyers erred by including their wholesale business. The clients first sued a former employee for a variety of torts. Concurrently, the clients sued the employee and the buyer in federal court for similar wrongs. The clients voluntarily dismissed the state action. The federal action was dismissed, because the judge found that the sales documents encompassed the wholesale business and that no restriction was imposed on the former employee. The court declined to exercise pendent jurisdiction over the state claims. The legal malpractice suit followed. The law firm sought summary judgment on the ground that the action was premature, because the claims against the former employee and buyer had not been resolved. The court disagreed, noting that the judicial construction of the contract established damage, but commented that, if the clients pursued the state claims, ‘a stay or some [other] measure might well be appropriate.’ ” 4 R. Mallen & J. Smith, supra, § 35:10, p. 1200. We agree.

“In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court . . . .” (Internal quotation marks omitted.) Voluntown v. Rytman, 21 Conn. App. 275, 287, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. North American Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 81 L. Ed. 153 (1936). Whether to stay a legal malpractice case when the underlying case has been adjudicated but damages may be minimized substantially by the outcome of another pending action is left to the trial court’s sound discretion. However, there is jurisdiction to exercise that discretion.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Lee died during the course of this case. Concluding that it was required to consider the motion to dismiss, which is the subject of this appeal, before anything else, the trial court refused to consider a motion to substitute. This was improper. See Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001). Accordingly, we ordered the substitution of Donald R. Gustafson, the administrator of the estate of Johnson Lee, on appeal. Nevertheless, we continue to refer to Lee as the plaintiff in this appeal.

       There were four foreclosure actions, which were consolidated in the underlying case: BSB Greenwich Mortgage Ltd. Partnership v. Lee, United States District Court, District of Connecticut, Docket No. 5:92CV139 (TFGD); BSB Greenwich Mortgage Ltd. Partnership v. Lee & Lee Construction Corp., United States District Court, District of Connecticut, Docket No. 5:92CV140 (TFGD); BSB Greenwich Mortgage Ltd. Partnership v. Lee & Lee Construction Corp., United States District Court, District of Connecticut, Docket No. 5:92CV141 (TFGD); and BSB Greenwich Mortgage Ltd. Partnership v. Lee, United States District Court, District of Connecticut, Docket No. 5:92CV142 (TFGD).

       There is no explanation in the record as to why the motion for order has a federal docket number different from any of the foreclosures. The face of the motion contains the docket numbers for each of the four foreclosure actions, but the remaining documents from the District Court, which have been provided in our appellate record, show Docket No. 5:92CV71 (AHN). Docket No. 5:92CV71 also is the docket number referenced by the parties to this appeal when discussing the motion for order.


source: Caselaw Access Project

license: Public Domain

text:
    NOEL DAVILA v. COMMISSIONER OF CORRECTION
    (AC 29546)
    Flynn, C. J., and Lavine and Hennessy, Js.

      Argued April 21
    officially released August 4, 2009

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

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Noel Davila, appeals from the judgment of the habeas court, Hon. Anthony V. DeMayo, judge trial referee, denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he was not denied the effective assistance of trial and appellate counsel when his attorneys failed to move to have the charges in the petitioner’s second criminal trial dismissed on double jeopardy grounds and failed to present this claim in his direct appeal, respectively. We conclude that the petitioner’s second trial, on charges that the jury could not agree on in his first trial, was a continuing prosecution and not a successive prosecution of the kind once barred by the now overruled State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990), overruled by State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001). We, therefore, affirm the judgment of the habeas court.

This court recounted the facts underlying the petitioner’s appeal in our decision concerning his direct appeal. “Angela Velez, Julio Alvarez and five minor children resided in a first floor apartment at 203 Calhoun Avenue in Bridgeport. On the afternoon of May 1,1999, the [petitioner], wearing a black, long sleeved, hooded sweatshirt, appeared at the back door of the victims’ apartment and asked Velez if he could speak to Alvarez. Velez refused the [petitioner’s] request because Alvarez was having lunch at that time. The [petitioner] then brandished a pistol and attempted to force his way into the apartment. Velez called out to Alvarez that somebody was trying to break into the apartment. Unsuccessful in his attempt to gain entry, the [petitioner] fired several gunshots into the apartment through various first floor windows. During the shooting, Velez gathered the five children together and fled the apartment, bringing the children to a nearby liquor store. The owner of the liquor store called the police, who arrived at the scene shortly thereafter.

“The [petitioner], meanwhile, fled on foot to his sister’s apartment, which was not far from the scene of the shooting. Once at the apartment, the [petitioner] changed shirts and hid the pistol under the cushions of the living room sofa. Police apprehended the [petitioner] at the apartment, where they also recovered the weapon and the sweatshirt.” State v. Davila, 75 Conn. App. 432, 435, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), cert. denied, 543 U.S. 897, 125 S. Ct. 92, 160 L. Ed. 2d 166 (2004).

The petitioner was charged, in an amended substitute information filed February 4, 2000, with five counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1), and one count each of the following: reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a); criminal possession of a firearm in violation of General Statutes § 53a-217 (a); carrying a pistol without a permit in violation of General Statutes § 29-35 (a); attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1); attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a); and possession of narcotics in violation of General Statutes § 21a-279 (a). Following a trial, on February 9,2000, the jury found the petitioner guilty of possession of narcotics and not guilty of attempt to commit murder. The jury deadlocked on the remaining charges as to which the court, Hauser, J., declared a mistrial. The court sentenced the petitioner to a total effective term of five years in prison, to run consecutively to a five year sentence that the petitioner currently was serving for a violation of probation.

By way of an amended substitute information filed January 29, 2001, the state charged the petitioner with the same May 1, 1999 crimes on which the jury had deadlocked: five counts of risk of injury to a child, one count of reckless endangerment in the first degree, one count of criminal possession of a firearm, one count of carrying a pistol without a permit and one count of attempt to commit assault in the first degree. Prior to commencement of evidence in the second trial, the petitioner’s trial counsel, Wayne Keeney, filed a motion in limine to preclude from the second trial facts that were litigated in the first trial pertaining to the charge of attempt to commit murder on the ground of collateral estoppel. Keeney specifically argued that the state should be prohibited from using such facts in support of its attempt to commit assault charge in the second trial. Following oral argument, the court, Hon. Howard T. Owens, Jr., judge trial referee, granted the motion and ordered that the prosecution would be “precluded from offering any evidence during its case-in-chief that the [petitioner] intended to kill the alleged victim.” Four days later, Judge Owens reconsidered his ruling and denied the motion in limine. The court stated that in entering its order, it had been “unaware that at the first trial the [petitioner] had been tried on the charge of attempted assault in the first degree and that this charge resulted in a mistrial.”

On January 30, 2001, after a second trial, the jury found the petitioner not guilty of attempt to commit assault in the first degree and guilty of the other charges against him. The court thereafter sentenced the petitioner to a total effective term of fifteen years in prison, with eight years of special parole, to run consecutively to the petitioner’s previous sentences.

The petitioner filed separate appeals to this court from his convictions in both trials, and we ordered the appeals consolidated. See State v. Davila, supra, 75 Conn. App. 434 n. 1. The petitioner, represented by attorney David B. Rozwaski, claimed on appeal that there was insufficient evidence to support his conviction of risk of injury to a child and reckless endangerment in the first degree. Id., 434-35. The appeal also challenged the court’s denial of his motion in limine prior to the second trial. Id., 435. We deemed the evidence sufficient to support the petitioner’s conviction; id., 436-40; but declined to review the petitioner’s claim regarding the denial of his motion in limine, concluding that the issue was moot due to the fact that the petitioner had been acquitted in the second trial of the charge of attempt to commit assault in the first degree. Id., 441.

On March 28, 2007, the petitioner filed a third amended petition for a writ of habeas corpus. The petition’s first and second counts alleged ineffective assistance of counsel by Keeney and Rozwaski, respectively, specifically citing their failure to brief and to argue a claim that the second prosecution placed the petitioner in double jeopardy due to the acquittal in the first trial of the charge of attempt to commit murder. Counts three and four alleged that the court improperly failed to find that the second prosecution was barred by operation of the fifth and fourteenth amendments to the United States constitution. In a memorandum of decision filed December 11, 2007, Judge DeMayo denied the petition. The court concluded that under State v. James, 247 Conn. 662, 725 A.2d 316 (1999) (en banc), the petitioner’s retrial following the initial mistrial on the same charges did not violate his right not to be placed in double jeopardy. Therefore, the court found that the petitioner’s trial and appellate counsel could not have provided ineffective assistance for their failure to raise the issue. The court granted the petition for certification to appeal, and the present appeal followed.

On appeal, the petitioner challenges the habeas court’s determination that he was not denied the effective assistance of counsel at either the trial or appellate level. His argument may be summarized as follows. Prior to our Supreme Court’s ruling in State v. Lonergan, supra, 213 Conn. 74, our courts applied the traditional double jeopardy analysis originally formulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Under Blockburger and its progeny, a second prosecution was barred by double jeopardy if the crime charged in the latter prosecution did not require proof of an element distinct from a charged crime for which the defendant previously had been put to trial and convicted or acquitted. See id., 304. In Lonergan, our Supreme Court extended double jeopardy protection to encompass not only the “same elements” analysis of Blockburger, but also the “same conduct” test intimated by the United States Supreme Court in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). Under this analysis, in successive prosecution cases, “if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.” (Internal quotation marks omitted.) State v. Lonergan, supra, 92.

In State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001), decided August 28,2001, our Supreme Court explicitly overruled its decision in Lonergan and, following the United States Supreme Court precedent announced in United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), “reinstate^] the Blockburger test as the exclusive test for determining whether two offenses are the same offense for double jeopardy purposes.” State v. Alvarez, supra, 795. The petitioner contends that during the pertinent time period—May 1, 1999, the date of the incident, through January 30, 2001, when the jury in the second trial delivered its verdict—Connecticut law required courts to apply the double jeopardy analysis of Lonergan. Applying this analysis to the facts of his case, he maintains, the state was barred from bringing any of the charges in the second trial because the evidence to support those charges was the identical evidence used in the first trial. The failure of the petitioner’s trial and appellate counsel to raise this claim, he argues, rendered their efforts ineffective and, therefore, constitutionally defective.

We begin our analysis with the following standard of review and principles of law. Facts found by a habeas court may not be disturbed on appellate review unless they are clearly erroneous. George M. v. Commissioner of Correction, 290 Conn. 653, 659, 966 A.2d 179 (2009). The question of whether the representation received by a defendant in a criminal trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Accordingly, that question requires plenary review by this court rather than application of the clearly erroneous standard. Johnson v. Commissioner of Correction, 288 Conn. 53, 62, 951 A.2d 520 (2008).

Under the well known standard established by Strickland v. Washington, supra, 466 U.S. 687, 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, supra, 288 Conn. 63.

The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const., amend. V. The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The Connecticut constitution has no specific double jeopardy provision; however, our Supreme Court has held that “the due process guarantees of [the Connecticut constitution] include protection against double jeopardy.” (Internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007). The common-law protection against double jeopardy incorporated into our state constitution “mirrors, rather than exceeds, the federal constitutional protection.” (Internal quotation marks omitted.) State v. Michael J., 274 Conn. 321, 350, 875 A.2d 510 (2005). The double jeopardy clause secures several protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712 (2009).

Prior to our Supreme Court’s decision in State v. Lonergan, supra, 213 Conn. 74, our courts applied the double jeopardy analysis that originated in Blockburger v. United States, supra, 284 U.S. 299. The specific issue under review in Blockburger was whether several offenses charged in a single prosecution were sufficiently distinct to allow the imposition of multiple sentences without violating the double jeopardy clause. Id., 304. The court concluded: “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. The test emphasizes and requires analysis of the elements of the crimes charged: “If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). The United States Supreme Court eventually held that the Blockburger test applied not only to charges brought in a single prosecution but to charges in successive prosecution cases as well. See Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).

The preceding provides the proper legal background for the present case. We now proceed to an analysis of Lonergan, the linchpin of the petitioner’s claim on appeal. In State v. Lonergan, supra, 213 Conn. 76, the defendant was arrested and charged with operating a motor vehicle under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a after his vehicle collided with a motorcycle. The day following the accident, the operator of the motorcycle died as a result of injuries he sustained in the collision. Id. The state thereafter charged the defendant with manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. Id. The state elected to sever the counts, and it proceeded to try the defendant on the manslaughter count only. Id., 77. At the conclusion of the state’s casein-chief, the court granted the defendant’s motion for a judgment of acquittal, concluding that the state had failed to prove beyond a reasonable doubt that the defendant’s alleged intoxication had caused the decedent’s death. Id.

The state then sought to prosecute the defendant on the charge of operating a motor vehicle under the influence of intoxicating liquor or drugs. Id. The trial court granted the defendant’s motion to dismiss the charge, holding that the second prosecution violated the double jeopardy protections of both the federal constitution and the Connecticut constitution. Id. The state appealed to this court, arguing that no double jeopardy violation existed as the two crimes required proof of different elements. Id.; State v. Lonergan, 16 Conn. App. 358, 362, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990), overruled by State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001). Following this court’s decision affirming the judgment of the trial court; see State v. Lonergan, supra, 16 Conn. App. 378-79; the state appealed to our Supreme Court.

On appeal, our Supreme Court affirmed the decision of this court. State v. Lonergan, supra, 213 Conn. 93. Citing approvingly to this court’s analysis of Illinois v. Vitale, supra, 447 U.S. 410, the court stated that in instances of successive prosecutions, the Bloekburger test was not the only applicable test to determine whether charged crimes constituted the “same offense” for double jeopardy purposes. State v. Lonergan, supra, 85-88. Accordingly, with one justice dissenting, the court held that “in successive prosecution cases if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.” (Internal quotation marks omitted.) Id., 92. With regard to the particular charges at issue in Lonergan, the court concluded that because the record demonstrated that the state would rely on and seek to prove the same act of operating a motor vehicle while intoxicated that was necessary to prove the manslaughter charge, and because the defendant already had been acquitted of the manslaughter charge, the second prosecution for operating a motor vehicle while under the influence of intoxicating liquor or drugs was barred by the double jeopardy clause. Id., 92-93.

As we have stated, our Supreme Court in August, 2001, overruled its decision in Lonergan and “reinstate [d] the Blockburger test as the exclusive test for determining whether two offenses are the same offense for double jeopardy purposes.” State v. Alvarez, supra, 257 Conn. 795. The petitioner’s argument is not affected by the fact that Lonergan is no longer good law, for he argues that, while it was operative, Lonergan applied to bar the state from prosecuting him in a second trial for the charges on which the jury could not come to a unanimous verdict in the first trial. What the petitioner’s argument fails to recognize, however, is that Lonergan is distinguishable from the factual and procedural circumstances underlying his appeal. The holding in Lonergan applied to bar successive prosecutions where the state would rely on the same evidence in the second prosecution on a charge that had been severed and never previously tried to prove an element of a crime charged in a prior prosecution. The petitioner here was not put through successive prosecutions for the charges on which the jury could not agree, but, rather, he was subjected to a continuing prosecution according to the fundamental principle that “a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which [the] petitioner was subjected.” Richardson v. United States, 468 U.S. 317, 326, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984); see also 6 W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure (3d Ed. 2007) § 25.1 (e), pp. 602-604; 21 Am. Jur. 2d 473-74, Criminal Law § 353 (2008) (“[t]he discharge of a jury that has convicted the defendant on some counts of an indictment and has disagreed as to another count will not bar a subsequent prosecution for the offense on which they disagreed”).

Our Supreme Court recognized this principle in the case relied on by the habeas court here, State v. James, supra, 247 Conn. 662. In James, the defendant, armed with two handguns, entered an after-hours club and, with guns drawn, demanded money from the bartender. Id., 666. The defendant shot the bartender, who eventually complied and gave money to the defendant. Id. The defendant took the money and proceeded to the exit, firing the handguns rapidly. Id., 666-67. In addition to the bartender, two other patrons were shot, one of whom died as a result. Id., 667.

The defendant was charged as a principal with felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). Id., 664-65. At trial, the defendant testified that although he participated in the robbery, he did so only as a lookout for another man, who had taken the money and shot the victims. Id., 667. The jury found the defendant guilty of robbery in the first degree but was deadlocked and, thus, unable to return a verdict as to the remaining counts. Id., 665. The court denied the defendant’s motion for a judgment of acquittal on the remaining counts, and the defendant subsequently was sentenced. Id., 665-66.

Following the defendant’s sentencing, the state filed a revised substitute information seeking to retry the defendant for felony murder. Id., 666. The defendant moved to dismiss the charge on the grounds of double jeopardy and collateral estoppel, and the court denied the motion. Id. The defendant filed an interlocutory appeal to our Supreme Court, arguing, inter alia, that the double jeopardy clause of the fifth amendment to the United States constitution barred the state’s attempt to retry him for felony murder. Id.

The court framed the critical issue in the case as follows: “[W]hether the mistrial terminated jeopardy as to the felony murder count.” Id., 673. In concluding that jeopardy was not terminated as a result of the mistrial, the court stated: “It is axiomatic that a mistrial required by the manifest necessities of the case does not terminate jeopardy. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824); see also Illinois v. Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); State v. Van Sant, 198 Conn. 369, 377, 503 A.2d 557 (1986). The jury’s inability to reach a unanimous verdict on a count that may compel the trial court to declare a mistrial is indisputably such a case. Dreyer v. Illinois, 187 U.S. 71, 86, 23 S. Ct. 28, 47 L. Ed. 79 (1902); State v. Buell, 221 Conn. 407, 414-15, 605 A.2d 539, cert. denied, 506 U.S. 904, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992); Aillon v. Manson, 201 Conn. 675, 678, 519 A.2d 35 (1986). ‘[A] trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which [the defendant] was subjected.’ Richardson v. United States, [supra, 468 U.S. 326]. ‘The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. . . . What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.’ Wade v. Hunter, 336 U.S. 684, 688-89, 69 S. Ct. 834, 93 L. Ed. 974 (1949). ‘The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and the jeopardy does not terminate when the jury is discharged because it is unable to agree.’ Richardson v. United States, supra, 326. We hold, therefore, that the defendant’s retrial for felony murder does not violate the double jeopardy clause.” State v. James, supra, 247 Conn. 673-74.

The holding in James is determinative of the present appeal. In his first trial, the petitioner was charged with various counts of risk of injury to a child, reckless endangerment in the first degree, criminal possession of a firearm, carrying a pistol without a permit, attempt to commit assault in the first degree, attempt to commit murder and possession of narcotics. The jury found the petitioner guilty on the narcotics charge, not guilty of attempt to commit murder and could not arrive at a unanimous verdict with respect to the remaining charges. Judge Hauser’s subsequent declaration of a mistrial due to the jury’s failure to agree on the remaining charges was not an event that terminated jeopardy as to those charges. Therefore, the state’s retrial of the petitioner on charges that deadlocked the jury did not violate the petitioner’s constitutional right not to be placed in double jeopardy.

The petitioner’s reliance on State v. Lonergan, supra, 213 Conn. 74, is misplaced. The state in Lonergan opted to sever the charges of manslaughter in the second degree with a motor vehicle and operating a motor vehicle under the influence of intoxicating liquor or drags and to proceed to trial only on the manslaughter charge. The jeopardy in which the defendant was placed by virtue of being prosecuted on this charge terminated upon the court’s granting of his motion for a judgment of acquittal. Thus, the state’s subsequent attempt to tiy the defendant on the charge of operating a motor vehicle while under the influence of intoxicating liquor or drags was a successive prosecution, as opposed to a continuing prosecution. This factual and procedural context of Lonergan is distinguishable from the circumstances underlying the petitioner’s appeal. As we have stated, the petitioner was not twice placed in jeopardy by virtue of the state’s decision to try him again on the charges on which the jury could not reach a unanimous verdict in the first trial; rather, the jeopardy pertaining to those charges that attached at the commencement of the first trial was not terminated when the trial court declared a mistrial and, therefore, continued through the jury’s verdict in the second trial.

Because the continued prosecution of the petitioner was not barred by double jeopardy principles, his trial and appellate counsel did not provide ineffective assistance by failing to raise a claim that it was. The habeas court, therefore, properly concluded that the petitioner was not denied the effective assistance of trial and appellate counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner further challenged his conviction of criminal possession of a firearm, carrying a pistol without a permit and possession of narcotics, but we deemed these claims abandoned due to the petitioner’s failure to brief them. State v. Davila, supra, 75 Conn. App. 434 n.1.

       The court dismissed counts three and four of the petition on the ground that the claims contained therein properly were subjects of a direct appeal, not a petition seeking habeas relief.

       In Illinois v. Vitale, supra, 447 U.S. 410, the United States Supreme Court “suggested that even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution.” Grady v. Corbin, 495 U.S. 508, 510, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), overruled by United States v. Dixon, 509 U.S. 688, 712, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. DARREN A. MADISON
    (AC 29138)
    Flynn, C. J., and Harper and McDonald, Js.

      Argued December 2, 2008
    officially released August 11, 2009

      Katherine C. Essington, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and David A. Gulick, senior assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Darren A. Madison, appeals from the judgment of conviction, rendered after a jury trial, 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 attempt to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 2 la-278 (b) and 53a-49 (a) (2). On appeal, the defendant claims that the court improperly denied his motion to suppress “rocks” of crack cocaine found by a police officer in the vehicle the defendant was driving. We affirm the judgment of the trial court.

After a hearing on the motion to suppress, the court stated in an oral decision that it found the two police officers’ testimony to be credible for the most part and found the following facts. On October 18, 2006, Waterbury police officers were conducting surveillance from their unmarked police car of a pay telephone often used for drug transactions. Between fifteen and twenty arrests have resulted from surveillance of that telephone. Shortly before 9 p.m., from that location the officers followed a woman, later identified as Heather Marinelli, who drove to a nearby parking lot located in a high drug trafficking area. Shortly thereafter, a second vehicle, driven by the defendant, pulled up alongside Marinelli’s vehicle. Marinelli then exited her vehicle and leaned into the defendant’s vehicle. At that time, the officers began converging on the two vehicles, apparently unnoticed. The officers were driving an unmarked vehicle and wore plain clothes.

Officer Eric Medina, as he was approaching the defendant’s vehicle, observed Marinelli hand money to the defendant, who apparently did not notice the officers. The court stated that it was clear that when police arrived at the defendant’s vehicle and were identified as police officers, they were noticed by the occupants. The defendant reacted to Medina by putting up his hands and throwing into the backseat items that Medina identified as crack cocaine rocks.

The court concluded that, when the officers approached the defendant’s vehicle, they did not have a reasonable and articulable suspicion of drug activity to warrant an investigative seizure of the defendant. It also concluded, however, that the officers had not yet seized the defendant. The court stated that the observation of Marinelli giving money to the defendant constituted an articulable fact that warranted an investigative seizure of the defendant. The court found that the seizure occurred subsequently, when Medina identified himself as a police officer and was noticed by the defendant. The court found that the defendant’s reaction to Medina established probable cause to remove the defendant from his car and to search the vehicle. The court denied the defendant’s motion to suppress the crack cocaine. The defendant thereafter did not seek articulation of the court’s oral decision.

We begin our analysis with our standard of review. “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 crack cocaine should have been suppressed because it was discovered as a result of an unlawful seizure of his person, in this case, during an investigatory or Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1969). A person is so 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 of 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).

Our Supreme Court, in State v. Burroughs, supra, 288 Conn. 844 n.3, stated that our review of the first issue presents a mixed question of law and fact that also requires this court to make an independent legal determination of whether a seizure occurred. In making this determination, we conclude in this case that the court’s historical factual findings were either undisputed, not clearly erroneous or were supported by substantial evidence. In this case, there were no flashing lights or sirens, officers in uniform, application of physical force on the defendant, use of language or tone of voice indicating that compliance might be compelled or blockage of the defendant’s vehicle before Medina identified himself at the defendant’s driver’s side window. See id., 846-47. We therefore conclude that the court properly found that the police made no seizure of the defendant before Medina was at the defendant’s window and identified himself as a police officer.

With respect to our independent legal determination, at the hearing on the motion to suppress, the driver of the police car, Sergeant Gary Angón, testified that it was his job to approach a drug transaction as safely and inconspicuously as possible. Once the police car was stopped, all the officers would get out of it. The police car driver would approach the other car at the driver’s side to be sure that the other car remained stopped. The officers in doing so knew to watch the hands of those in the other vehicle so that evidence would not be destroyed or weapons used. Angón also testified that Medina, who had been sitting in the front passenger seat of the police car, left the car when it was coming to a stop and went “right” to the driver’s side of the defendant’s vehicle as the police car’s lights were turned on. It was then that Medina indicated that he was “set.” Angón, at that point, had seen the defendant raise his hands and believed that it was all right to move. Angón, who was wearing a bulletproof vest, left the police car and approached the defendant’s vehicle on the passenger side. A third officer in the backseat of the police car also went to the passenger side of the defendant’s vehicle, as there was a passenger in the passenger seat and Marinelli.

Medina testified that the unmarked police car was approximately twenty feet from the defendant’s vehicle when it parked next to the Marinelli vehicle. The officers had watched Marinelli enter the parking lot and park her car facing the lot opposite the officer’s location. After about five to ten minutes, the defendant drove his vehicle into the lot and backed up next to Marinelli’s vehicle, with the defendant’s passenger side next to Marinelli’s driver’s side. When Marinelli went from the driver’s side of her vehicle adjacent to the passenger side of the defendant’s vehicle, the officers approached corner to comer to the defendant’s vehicle, and the police car’s front lights were directly on the front fender of the defendant’s vehicle. As Medina began to exit the police vehicle carrying a flashlight, he saw Marinelli hand money to the defendant. As Medina approached the defendant’s vehicle on foot, Medina saw the defendant take the money while looking at Marinelli, who was at the passenger side window. Medina had his badge on his chest, identified himself as a police officer at the defendant’s driver’s side window and saw the defendant put up his hands and throw what appeared to be rocks of crack cocaine behind him.

The defendant argues that when Medina left the police vehicle with his badge displayed, the investigative seizure occurred prior to the existence of a reasonable and articulable suspicion. The defendant also argues that at that time, the police vehicle blocked the defendant’s vehicle. The evidence, as the state concedes, is that Angón was to prevent the defendant’s vehicle from moving. Angón testified that he was to exit the police car when it was stopped and to go to the driver’s side of the defendant’s vehicle. As Angón was still in the driver’s seat of the police car and leaning out of the vehicle, he saw the defendant put his hands up. Angón then went to the passenger side of the defendant’s vehicle. As Medina testified, the police car was stopped comer to comer to the defendant’s driver’s side front fender, with the headlights directly on that fender. We cannot in these circumstances conclude that the moving police car blocked the defendant’s vehicle before Medina saw Marinelli handing money to the defendant.

We now consider the defendant’s claim that the police did not have a reasonable and articulable basis for seizing him when Medina identified himself to the defendant as a police officer. The state concedes that the defendant was seized at this time, and the court found that Medina’s actions then caused the defendant to throw the crack cocaine into the backseat of the car.

The defendant argues that the police lacked a reasonable and articulable basis for seizing him and that under the fruit of the poisonous tree doctrine, the evidence must be suppressed. See State v. Milotte, 95 Conn. App. 616, 620, 897 A.2d 683 (2006), appeal dismissed, 281 Conn. 612, 917 A.2d 25 (2007). We conclude, to the contrary, that the police had a reasonable and articulable basis for seizing or stopping the defendant at that time.

The defendant asks us to review the issue of reasonable and articulable suspicion under the fourth amendment to the United States constitution and the constitution of Connecticut, article first, §§ 7 and 9. Our Supreme Court has held that these provisions in this respect mirror each other. State v. Donahue, 251 Conn. 636, 644, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000).

“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.” (Internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 504. “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.” (Internal quotation marks omitted.) State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994). “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.” State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001). The threshold for reasonable and articulable suspicion requires less than probable cause; State v. Thomas, 98 Conn. App. 542, 548, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007); which requires less than a preponderance of the evidence. See State v. Johnson, 286 Conn. 427, 435, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). The determination is not a technical one, but is informed by the factual and practical considerations of everyday life. Id. 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 . . . .” (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 232, 673 A.2d 1098 (1996). The court’s legal conclusion is subject to our plenary review. See State v. Torres, supra, 379.

The defendant argues that the police did not have a reasonable and articulable basis for stopping him because his conduct was “capable of innumerable innocent explanations” and that the meeting of two individuals “in a high crime area” does not rise to the level of reasonable and articulable suspicion. We disagree.

“[A]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal.” (Internal quotation marks omitted.) State v. Lipscomb, supra, 258 Conn. 76. 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. See id., 75-76; see also State v. Trine, supra, 236 Conn. 230-31. Further, although the defendant correctly argues that his presence in a high crime area alone is insufficient to establish a reasonable and articulable suspicion, the nature of the area where he was detained properly is part of our reasonable and articulable suspicion analysis. See State v. Lipscomb, supra, 78.

In this case, the court found credible the officers’ testimony that (1) Marinelli made a ten to fifteen second telephone call from a pay telephone that often was used in drug transactions, (2) immediately after, Marinelli drove to a nearly empty parking lot located in a high drug trafficking area and (3) shortly thereafter, the defendant drove his vehicle to the parking lot and parked alongside Marinelli’s vehicle. The officers also testified that Marinelli immediately exited her vehicle, leaned into the passenger side of the defendant’s vehicle and handed cash to the defendant, who was driving the vehicle. Medina and Angón, experienced narcotics investigators, testified that, on the basis of their experience, this behavior was typical for a drug transaction. We conclude that these facts gave rise to a reasonable and articulable basis for conducting an investigatory seizure of the defendant. See State v. Straub, 90 Conn. App. 147, 151, 877 A.2d 866 (using telephone known to be used frequently in drug sales, watching for cars for fifteen minutes and entering car after speaking to driver provided reasonable and articulable suspicion), cert. denied, 275 Conn. 927, 883 A.2d 1252 (2005).

We disagree with the defendant’s claim that Medina’s observation of Marinelli giving the defendant money should not be part of our analysis of whether the police had a reasonable and articulable basis for an investigatory stop. The defendant argues that when Medina observed the exchange, the police already had seized the defendant within the meaning of the constitution of Connecticut, article first, §§ 7 and 9, and that, at that time, the seizure was unlawful because the police did not have a reasonable and articulable basis for seizing him and, therefore, the subsequent seizure of the cocaine rocks was illegal and the evidence should be suppressed. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (evidence obtained as result of illegal detention must be suppressed). We conclude to the contrary that the court correctly found that Medina’s observation of the exchange of money occurred before the defendant was seized. We also conclude that the observation of the money delivery was not the fruit of any illegal investigative stop.

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. . . . All evidence is not, however, a fruit of the poisonous tree simply because it would not have been discovered but for the illegal action of law enforcement officials. . . . Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . . The initial determination is, therefore, whether the challenged evidence is in some sense the product of illegal government activity.” (Citations omitted; internal quotation marks omitted.) State v. Colvin, supra, 241 Conn. 656-57.

When the challenged evidence has an independent source, an unlawful seizure does not place the police in a worse position than they would have been in absent the unlawful seizure. Id., 660. Absent a causal connection to an unlawful seizure, a plain view observation of incriminating evidence can form the basis of a lawful search and seizure even if the observation occurred after or during an unlawful seizure. Id., 658.

In this case, the evidence was that Medina observed the exchange of money while he was leaving the police car and going into a parking lot outside of the defendant’s car. The defendant does not argue, nor could he, that Medina did not have the legal right to observe activities taking place in his plain view from a location in the parking lot. See id., 660 (police may approach vehicle and look through window). The defendant disputes that, at the time of the exchange of money, he had not been seized, but he cannot show that a seizure of him in any way caused the exchange to occur. There was no evidence at the hearing that the defendant knew the police were present when he began a hand-to-hand drug transaction with Marinelli. On the contrary, common sense dictates that the police presence would have decreased the likelihood that the defendant and Marinelli would begin their illegal transaction. We do not conclude that any unlawful seizure of the defendant at the time of the exchange of money caused Medina to observe it in plain view, and Medina’s conduct did not cause the exchange to occur. See id. (unlawful arrest of defendant does not result in suppression of cocaine discovered moments later in plain view in defendant’s vehicle). Accordingly, we conclude that Medina’s observation of the exchange properly is part of our analysis of whether there was a reasonable and articulable basis for seizing the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Rock” is street language for a piece of crack cocaine. State v. Wright, 63 Conn. App. 138, 141, 772 A.2d 739, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

       With respect to the safety of police officers, our Supreme Court has stated: “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, 271 Conn. 300, 325, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005).

         The defendant also raises his claim under the fourth amendment to the United States constitution. It is well established that under the constitution of Connecticut, article first, §§ 7 and 9, the definition of a “seizure” is less restrictive than it is under the fourth amendment to the United States constitution. See State v. Burroughs, supra, 288 Conn. 845 n.6. We therefore do not need to address the defendant’s claim under the United States constitution.