text:
    STATE OF CONNECTICUT v. ANTHONY CARTER
    (AC 33938)
    Gruendel, Espinosa and Pellegrino, Js.
    Argued September 27
    officially released November 6, 2012

      Anthony Carter, pro se, the appellant (defendant).

      Kathryn W. Bare, assistant state’s attorney, with whom, on the brief, was GailP. Hardy, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The self-represented defendant, Anthony Carter, appeals from the judgment of the trial court dismissing his motions to correct an illegal sentence and to open and set aside various judgments. On appeal, he challenges the propriety of those determinations. We affirm the judgment of the trial court.

As this court previously observed, “[t]he defendant’s prosecution arose from the terrible consequences of a drug turf war, in which a stray bullet fired from the defendant’s gun struck and seriously injured a seven year old girl. . . . Following a jury trial, the defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and the court rendered judgment accordingly. The court sentenced the defendant to a total effective term of twenty-seven years incarceration.” (Citation omitted; internal quotation marks omitted.) State v. Carter, 122 Conn. App. 527, 528-29, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915,13 A.3d 1104 (2011). This court affirmed that judgment of conviction. State v. Carter, 84 Conn. App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005).

Apart from numerous petitions for a writ of habeas corpus; see Carter v. Commissioner of Correction, 133 Conn. App. 387, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012); Carter v. Commissioner of Correction, 131 Conn. App. 905, 28 A.3d 360 (2011), cert. denied, 303 Conn. 938, 37 A.3d 153 (2012); Carter v. Commissioner of Correction, 109 Conn. App. 300, 950 A.2d 619 (2008); Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008); the defendant, in November, 2007, filed his first motion to correct an illegal sentence. The trial court denied that motion, which judgment this court affirmed. State v. Carter, supra, 122 Conn. App. 527. Pertinent to the present appeal are the defendant’s October 8, 2010 and April 29, 2011 motions to correct an illegal sentence and his December 16, 2010 and June 3, 2011 motions to open and set aside the judgment, the substance of which the trial court, Gold, J., thoughtfully considered and rejected.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment should be affirmed. On the facts of this case, the issues properly were resolved in the court’s complete and well reasoned memorandum of decision. See State v. Carter, 52 Conn. Sup. 452, 55 A.3d 829 (2011). We therefore adopt it as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See State v. Pepper, 272 Conn. 10, 14, 860 A.2d 1221 (2004); Santiago v. State, 64 Conn. App. 67, 68-69, 779 A.2d 775, cert. denied, 258 Conn. 913, 782 A.2d 1246 (2001).

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NEWALLIANCE BANK v. ERNEST SCHAEPPI ET AL.
    (AC 33906)
    DiPentima, C. J., and Robinson and Bear, Js.
    Submitted on briefs September 27
    officially released November 6, 2012

      Ernest A. Schaeppi, pro se, and Ellen A. Schaeppi, pro se, the appellants (named defendant et al.), filed a brief.

      Joseph J. Sensale filed a brief for the appellee (substitute plaintiff).
   Opinion

PER CURIAM.

The self-represented defendants, Ernest A. Schaeppi and Ellen A. Schaeppi, appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the substituted plaintiff, First Niagara Bank, National Association (First Niagara). On appeal, the defendants argue that the court improperly deprived them of the right to due process when it granted the motion to substitute First Niagara for the plaintiff, NewAlliance Bank, without holding an eviden-tiary hearing. We disagree, and, accordingly, affirm the judgment of the trial corut.

On October 15, 1992, the defendants executed a $50,000 promissory note with The Savings Bank of Manchester. This note was secured by property located in Glastonbury. In April, 2004, The Savings Bank of Manchester merged into and was succeeded by NewAl-liance Bank. The defendants failed to make payments pursuant to the note in May, 2009, and NewAUiance Bank commenced this foreclosure action as the bona fide owner and holder of the note and mortgage. On November 10, 2009, NewAUiance Bank moved for summary judgment as to liability. On January 11, 2010, the court granted this motion. On June 10, 2010, NewAUiance Bank filed a motion for a judgment of strict foreclosure. The court rendered judgment of foreclosure by sale, over the defendants’ joint objection, on June 22, 2010.

On August 1, 2011, NewAUiance Bank filed a motion to substitute First Niagara as the plaintiff pursuant to Practice Book § 9-20. The motion represented that NewAUiance Bank was merged into and succeeded by First Niagara on April 15, 2011. Attached to the motion was a copy of the certificate of change of name, the certificate of merger that had been recorded on the land records of the town of Glastonbury and the official certification of the ComptroUer of the Currency merging the two entities. The defendants filed an objection on August 16, 2011, arguing that an evidentiary hearing should be held. On September 12, 2011, the court overruled the defendants’ objection.

After the defendants filed the present appeal, they moved for an articulation of the trial court’s decision to grant the motion to substitute. The court denied this motion. The defendants then filed a motion for review, which we granted, and we requested the trial court to provide an articulation of its order. The trial court explained that it granted the motion to substitute pursuant to General Statutes § 52-109 and Practice Book § 9-20. It further stated: “[T]he court is satisfied that NewAl-liance [Bank] commenced this action with the honest conviction that it was the proper plaintiff, and in fact, was initially the proper plaintiff to bring this action. ... As the . . . bona fide owner and holder of the note and mortgage, NewAlliance [Bank] commenced this action when the defendants failed to make payments on the note, and consequently, defaulted on the mortgage. . . . The motion to substitute plaintiff is appropriate because NewAlliance [Bank], having merged into and been succeeded by First Niagara, is no longer the proper plaintiff to be named in the present action. First Niagara is the real party in interest with respect to this foreclosure action because it is now the owner and holder of the note and mortgage as a result of the merger. See General Statutes § 33-820 (a) (4).” The court also determined that First Niagara had complied with the statutory notice requirements of General Statutes § 47-12 when it filed the certificate of name change with the town clerk of Glastonbury.

On appeal, the defendants’ sole claim is that the court improperly denied their request for an evidentiary hearing with respect to the motion to substitute First Niagara for NewAlliance Bank. We are not persuaded that the court was required to hold such a hearing in the present case.

General Statutes § 33-820 provides in relevant part: “(a) When a merger becomes effective: (1) The corporation or other entity that is designated in the certificate of merger as the survivor continues or comes into existence, as the case may be; (2) The separate existence of every corporation or other entity that is merged into the survivor ceases; (3) All liabilities of each corporation or other entity that is merged into the survivor are vested in the survivor; (4) All property owned by, and every contract right possessed by, each corporation or other entity that merges into the survivor is vested in the survivor without reversion or impairment . . . .” (Emphasis added.) See also Ferrato v. Webster Bank, 67 Conn. App. 688, 589 n.1, 789 A.2d 472, cert. denied, 259 Conn. 930, 793 A.2d 1084 (2002).

This case does not involve the assignment of the note or mortgage; it involves the merger of NewAUiance Bank with and into First Niagara. Attached to the motion to substitute were copies of the certificate of change of name, filed with the town of Glastonbury, and the certificate of merger from the ComptroUer of the Currency. The defendants have failed to provide this court with any authority supporting their claim that due process required an evidentiary hearing under these circumstances. Moreover, pursuant to § 33-820 (a) (4), aU property owned by, and all contract rights possessed by NewAUiance Bank were vested in First Niagara following the merger. This included both ownership of and the right to enforce both the note and mortgage. The defendants, in their objection to substitute, merely requested a hearing and the presence of a witness who could testify as to the merger and that First Niagara had “assumed title to the mortgage that is the basis of this foreclosure action”; they never raised any factual issues concerning the vahdity of the merger itself. We conclude, under the facts and circumstances of this case, that the lack of an evidentiary hearing did not deprive the defendants of the right to due process.

The judgment is affirmed.

       Ernest A. Schaeppi and Ellen A. Schaeppi are the only two defendants involved in this appeal; the other defendants, Discover Bank, People’s United Bank, Waterside Financial, Inc., Unifund OCR Partners, Calvary Investments, LLC, and Surrey Hill Homeowners Association n, Inc., are not parties to the appeal. All references to the defendants herein are to Ernest A. Schaeppi and Ellen A. Schaeppi.

       Practice Book § 9-20 provides: “When any action has been commenced in the name of the wrong person as plaintiff, the judicial authority may, if satisfied that it was so commenced through mistake and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff. (See General Statutes § 52-109 and annotations.)” We need not decide the necessity or the propriety of NewAUiance Bank’s reliance on Practice Book § 9-20 to substitute First Niagara Bank under these circumstances.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. MARCOS R. MERCADO, JR.
    (AC 34402)
    Graendel, Lavine and Borden, Js.
    Argued September 6
    officially released November 6, 2012

      Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, was Brian Preleski, state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Marcos R. Mercado, Jr., appeals from the judgment of conviction, rendered after a jury verdict, of murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant claims that (1) the court abused its discretion by permitting the prosecutor to cross-examine him about prior misconduct and (2) the prosecutor’s deliberate violation of the court’s evidentiary order warrants reversal of his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 26, 2007, the Southington police went to the apartment of the victim, Thomas Szadkow-ski, at 81 Academy Street to check on his welfare, as he had not reported to work that day. The police found the victim in his kitchen, lying dead of a gunshot wound. During their search of the victim’s apartment, the South-ington and state police observed a number of open windows on the screen of the victim’s computer. One window depicted an America Online instant message exchange between the defendant and the victim, which took place between approximately 8:45 and 9:45 p.m. on December 24, 2007.

The instant message screen revealed that the victim had invited the defendant to his apartment. Another open screen displayed the defendant’s photograph and profile. The defendant accepted the invitation and drove to the victim’s apartment. After the defendant and the victim engaged in a sexual act, the defendant retrieved a gun from his motor vehicle, returned to the victim’s apartment and shot him. When he left the apartment, the defendant took the victim’s Xbox 360 game console (Xbox). On December 26, 2007, the defendant gave the Xbox to a former girlfriend, Laurel Brooks, as a gift for her younger brother. The defendant was arrested at his home in New Britain on December 30, 2007. He subsequently signed a written statement and confessed, during a videotaped interview, to having shot the victim.

Following his conviction of all crimes charged, the defendant filed a motion for a new trial in which he claimed that the court improperly “permitted the state to introduce testimony of . . . Brooks, concerning [the] defendant’s statements to her that he had committed robberies in the past . . . .” The court denied the motion for a new trial. The defendant appealed.

The defendant’s claims on appeal concern Brooks’ rebuttal testimony. The following facts place the defendant’s claims in context for our review.

During the course of his investigation, Jay Suski, then a Southington police detective, took a statement from Brooks. Before Brooks took the witness stand to testify during the state’s case-in-chief, the defendant filed a motion in limine to preclude her from “testifying concerning the defendant’s alleged past about committing crimes. The defendant submits that the probative value of such testimony would be outweighed by the'prejudicial impact.” (Emphasis added.) The court granted the motion in limine with respect to the state’s direct examination of Brooks. In issuing its ruling, the court also stated that “the prejudice outweighs the probative value with respect to the statement that [the defendant] has talked to me [Brooks] in the past about committing crimes. He talked about wanting to do robberies. He would give me details about how he would tie people up or break into their homes when they weren’t home. And . . . [t]his is why I didn’t want to know what he was involved in.” The court also stated that “[n]ow, the motion is granted with respect to the testimony on direct examination. If the defense on cross-examination opens the door or upon cross-examination of the defendant, then this would not — the court’s order doesn’t apply.”

The state offered Brooks’ testimony in conformity with the court’s order. After the state rested its casein-chief, the defendant took the witness stand to present evidence of an alibi defense. He claimed that the only reason he signed the written statement was because the police “told” him to do so. See footnote 3 of this opinion. He denied having the online conversation with the victim, going to the victim’s apartment, shooting the victim and knowing who caused the victim’s death. During the state’s cross-examination, the defendant maintained that he spent the evening of December 24, 2007, with a then girlfriend, Sally Palomino, and that he purchased the Xbox for $150 from Richard Diaz on December 25, 2007.

The prosecutor then sought permission from the court to question the defendant as to whether he had made the statements to Brooks that were the subject of the defendant’s motion in limine. See footnote 5 of this opinion. The prosecutor noted that “the motion in limine did not apply [to the defendant], it applied to . . . Brooks, but I do believe that the state has a good faith basis to inquire of [the defendant] on cross with respect to those conversations with . . . Brooks.” The defendant objected, arguing that the “probative value of [the defendant’s statements] would be minimal and the prejudicial impact would be great. So, in the balancing test, I believe the prejudice outweighs the probative value." (Emphasis added.) The court overruled the defendant’s objection, stating that “[i]t’s cross-examination and the probative value outweighs the prejudice.” The prosecutor continued his cross-examination of the defendant, asking if he had made statements to Brooks about committing crimes. The defendant denied having done so.

During its rebuttal case, the state recalled Brooks. Brooks testified that prior to December 24, 2007, the defendant had talked to her about committing robberies. The defendant did not object to the prosecutor’s questions, move that the testimony be stricken or ask the court to issue a limiting instruction.

On appeal, the defendant claims that the court improperly permitted the state to question him about prior misconduct because it did not fall within § 4-5 (b) of the Connecticut Code of Evidence. The defendant also claims that his conviction should be reversed because the prosecutor deliberately violated the court’s ruling on the motion in limine. In his brief, the defendant argues that the prosecutor was guilty of prosecutorial impropriety. The defendant did not object to the prosecutor’s examination of Brooks during the rebuttal portion of trial, did not seek to have her rebuttal testimony stricken, nor did he request a limiting or curative instruction from the court. On appeal, the defendant cannot obtain review of Brooks’ rebuttal testimony by labeling it prosecutorial misconduct. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982) (“[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender”). “[0]nce identified, unpre-served evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, 213 Conn. 233, 241, 567 A.2d 823 (1989).

The standard of review for evidentiary claims is well known. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion.” State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). Moreover, “[t]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial [also] is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Bell, 113 Conn. App. 25, 40, 964 A.2d 568, cert. denied, 291 Conn. 914, 969 A.2d 175 (2009). In this case, the defendant failed to object to the evidence concerning his statements to Brooks about wanting to commit robberies on the ground that it constituted prior misconduct. The defendant’s claims therefore are not renewable.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court merged the felony murder conviction into the murder conviction and sentenced the defendant to seventy years imprisonment in the custody of the commissioner of correction.

       The defendant filed his appeal in the Supreme Court, which transferred it to this court pursuant to Practice Book § 65-1.

       The defendant filed a motion to suppress Ms statements claiming that they were the product of police intimidation and coercion and therefore were not voluntary. The court demed the motion to suppress. Before the jury, the defendant testified that his written and videotaped statements were not the truthful product of Ms free will. He agreed to sign the statements to provide the police with the information they wanted in order to end the police questioning.

       The relevant portion of Brooks’ statement to Suski follows. “When [the defendant] was over here [on December 26,2007], he was acting very strange. He was shaking and looked very uncomfortable. [The defendant] said he hadn’t slept all night and that [he] hadn’t eaten anything. [The defendant] and I were in my room talking, and he said to me, T did something.’ I wasn’t sure if he was serious, but he said it like it was something serious. I said for him not to tell me anything and that I didn’t want to get dragged into whatever he was talking about. [The defendant] has talked to me in the past about committing crimes. He’s talked about wanting to do robberies. He would give me details about how he would tie people up or break into their home when they weren’t home — this is why I didn’t want to know what he was involved in.”

       Defense counsel, Christopher D. Eddy, argued in support of the motion in limine that he filed the motion to alert the court to anticipated testimony from Brooks pursuant to a statement she gave to Suski. Eddy stated in part, “[Brooks’] testimony may involve that the defendant had talked to her in the past about committing crimes and, quote, talked about wanting to do robberies. He would give me details about how he would tie people up or break into their homes when they weren’t home.
      “So, Your Honor, I think . . . under the analysis that the court will conduct determining the relevancy versus the probative value, I’m asking for a protective order that prohibits this witness from bringing that up because there has been no testimony regarding any robbery thus far, and clearly the reference that she’s making in this statement is extremely vague, without specifics as well as any proximity in time to the time of December 24, 2007. I would submit to this court that this will be alarming to the jury and may cause them to have undue prejudice, if you will, and not analyze the facts of the case. So, I would ask the court to make a finding that its probative value is limited given its vagueness and the lack of specificity as well as the proximity in time to December 26, 2007, and given its limited probative value I believe that the danger of undue prejudice outweighs that.”
      The prosecutor responded to Eddy’s argument, stating: “The context in which [Brooks is] asked about that by the police is that [the defendant] says to her, I did something, and he says it’s something serious. She responds to him, I don’t want to know, don’t tell me, and says I don’t want to be dragged into whatever he was talking about, and it’s then that she tells the police because he’s talked to me in the past about these things. That’s one of the reasons I didn’t wish to hear it. So, I think it’s probative on its own, and I also think that it’s probative in the context of her response to what he’s telling her, and 1 believe her testimony will be that she tells him on more than one occasion, I don’t want to hear this.”

       The prosecutor cross-examined the defendant in part as follows:
      “Q. Now, prior to December 24 of 2007, you spoke to . . . Brooks about committing crimes. Correct?
      “A. That’s not true.
      “Q. You talked to . . . Brooks about wanting to rob people?
      “A. That’s not true.
      “Q. And you talked to . . . Brooks about how you’d tie people up, break into their homes?
      “A. That’s not true.
      “Q. In fact, that’s why . . . Brooks didn’t want to hear any details from you on December 26 of 2007 when you told her you’d done something.
      “A. This is not true.”

       The prosecutor questioned Brooks as follows:
      “Q. Ms. Brooks, did [the defendant] prior to December 24 of 2007 ever talk to you about committing crimes?
      “A. Yes.
      “Q. What sorts of crimes did he talk about committing?
      “A. Robberies.
      “Q. And would he provide you with details with respect to those?
      “A. Yes.

        “Q. What did [the defendant] tell you?
      “A. Things like how he would tie victims up.
      “Q. And you recall testifying here, I guess, a few days ago?
      “A. Yes.
      “Q. Is there a reason why when [the defendant] was talking to you on December 26 of 2007 and telling you things, why you never followed up to find out what he was talking about?
      “A. Yes.
      “Q. Why is that?
      “A. Because I didn’t want anything to do with it.”

       Section 4-5 (b) of the Connecticut Code of Evidence provides: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.”

       The essence of the defendant’s claim is that the jury heard evidence of alleged prior misconduct that was prejudicial to him. In ruling on the motion in limine, the court found that the portion of Brooks’ statement that was the subject of the motion in limine was more prejudicial than probative and ordered that it not be presented on direct examination. The court further ordered that if, on cross-examination of Brooks or during cross-examination of the defendant’s own testimony, the defendant opened the door, the court would permit the subject statements to be admitted as evidence. When the prosecutor informed the court that he intended to question the defendant about statements he had made to Brooks concerning the desire to commit crimes, the court found the statements to be more probative than prejudicial. During the prosecutor’s cross-examination of the defendant, he denied having made the statements to Brooks. Brooks’ rebuttal testimony contradicted the defendant’s testimony.


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. BRADSHAW SMITH
    (AC 33479)
    Graendel, Bear and Espinosa, Js.

      Argued September 18
    officially released November 6, 2012

      Richard S. Cramer, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Scott P. Murphy, state’s attorney, and Andreas Spoerk, special deputy assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Bradshaw Smith, appeals from the judgment of conviction of one count of permitting a dog to roam at large in violation of General Statutes § 22-364 (a). On appeal, the defendant claims that § 22-364 (a) is void for vagueness and that there was insufficient evidence to support his conviction. We disagree and, accordingly, affirm the judgment of the trial court.

The basic facts are not in dispute. On July 16, 2010, the defendant and his dog were on the grounds of Windsor High School (school), when Officer Joseph Beau-doin of the Windsor police department received a call to investigate a report of a dog roaming on the school grounds. Beaudoin arrived at approximately 5:40 a.m. He saw the defendant speaking with an off-duty member of the Windsor police department, Captain Kelvan Kearse, but he did not see a dog. Beaudoin approached the defendant and asked him if he knew where the dog was located. The defendant pointed in a general direction, but Beaudoin still could not see the dog. The defendant then called to the dog, a small mixed collie breed, which immediately appeared from behind some vehicles approximately twenty to thirty yards away from where Kearse, Beaudoin and the defendant stood. Beaudoin charged the defendant with the infraction of permitting a dog to roam at large. The defendant elected to have a court trial, at which only Beaudoin was called as a witness. Following the trial, the court convicted the defendant of the charged infraction. This appeal followed.

I

On appeal, the defendant claims that § 22-364 (a) is void for vagueness as applied to the facts of this case. He argues that the statute does not give a person of ordinary intelligence “fair warning that walking a dog at a public high school totally under his verbal control, but without a leash, falls within the parameter of [§ 22-364 (a)].” The state argues that “the ordinary meaning of the words ‘roam,’ ‘at large,’ and ‘control,’ as well as relevant case law, affords a person of ordinary intelligence fair warning that allowing a dog to wander out of sight twenty or thirty yards away is to allow a dog to roam at large while not under the control of the owner in contravention of § 22-364.” We agree with the state.

“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute wall not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties.” (Internal quotation marks omitted.) State v. Stuart, 113 Conn. App. 541, 560-61, 967 A.2d 532, cert. denied, 293 Conn. 922, 980 A.2d 914 (2009).

“In challenging the constitutionality of a statute, the defendant bears a heavy burden. To prevail on his vagueness claim, [t]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute .... [0]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .” (Citation omitted; internal quotation marks omitted.) Id., 562. With these principles in mind, we turn to the particular facts of the present case.

The defendant asserts that neither he nor any reasonable person would know that walking an unleashed dog on the grounds of a public school would violate the statute. This assertion, however, does not encompass all of the possible factual scenarios that fall within the parameters of § 22-364. Section 22-364 (a) provides: “No owner or keeper of any dog shall allow such dog to roam at large upon the land of another and not under control of the owner or keeper or the agent of the owner or keeper, nor allow such dog to roam at large on any portion of any public highway and not attended or under control of such owner or keeper or his agent, provided nothing in this subsection shall be construed to limit or prohibit the use of hunting dogs during the open hunting or training season. The unauthorized presence of any dog on the land of any person other than the owner or keeper of such dog or on any portion of a public highway when such dog is not attended by or under the control of such owner or keeper, shall be prima facie evidence of a violation of the provisions of this subsection. Violation of any provision of this subsection shall be an infraction.” Under the particular facts of this case, the statute must have given the defendant fair notice that his conduct would violate the statute, which prohibits an owner or keeper of a dog from “allow[ing] such dog to roam at large upon the land of another and not under control of the owner or keeper . . . .” General Statutes § 22-364 (a).

The defendant argues that no reasonable person would know that permitting a dbg, who readily responds to voice commands, to wander on the grounds of a public school would equate to permitting a dog to “roam at large . . . and not [be] under the control of the owner . . . .” See General Statutes § 22-364 (a). The parties agree that the key statutory terms in this case are roam, at large and control. After reviewing the common meaning of these terms, we conclude that the statute gives fair and reasonable notice of what is prohibited. Accordingly, § 22-364 (a) is not void for vagueness as applied in this case.

Roam is defined as “to go from place to place without purpose or direction ... to travel purposefully unhindered through a wide area . . . .” Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003) p. 1077. At large is defined as “free; unrestrained; not under control”; Black’s Law Dictionary (9th Ed. 2009); and “free of restraint or confinement.” Merriam-Webster’s Collegiate Dictionary, supra, p. 701. The statute also mandates that the dog be “not under [the] control of the owner” before a violation can be found. General Statutes § 22-364 (a). Control is defined as “to exercise restraining or directing influence over ... to have power over . . . .” Merriam-Webster’s Collegiate Dictionary, supra, p. 272. Therefore, under the plain terms of the statute, we conclude that a reasonable person in the defendant’s position had fair notice that § 22-364 (a) prohibits a dog owner from, inter aha, allowing a dog freely to move around another’s property, unrestrained and unhindered, and not under the direct influence of the dog’s owner. Because the prohibition of the statute readily can be defined and determined in this case, we conclude that the statute is not void for vagueness.

II

The defendant also claims that there was insufficient evidence to support his conviction of permitting a dog to roam at large. He argues that § 22-364 (a) does not require that a dog be leashed and that the mere fact that his dog was off leash does not mean it was roaming at large, not under his control. He argues that the dog came immediately upon being called and that this demonstrates that he had control of the dog. The state argues that the dog was out of the defendant’s sight, behind some vehicles, approximately twenty to thirty yards away from the defendant, and, therefore, it was roaming at large, not under the defendant’s direct control. We agree with the state.

In addressing the defendant’s claim, we employ the following standard of review. “[T]he [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . The standard of review for a sufficiency of the evidence claim employs a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [trier] if there is sufficient evidence to support [the] verdict. . . .

“It is axiomatic that the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [trier of fact] to conclude that a basic fact or an inferred fact is true, the [trier] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [defendant’s guilt].” (Citations omitted; internal quotation marks omitted.) State v. Reid, 123 Conn. App. 383, 391-92, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010). With this standard in mind, we turn to the defendant’s insufficiency claim.

In the present case, the court, acting as the trier of fact, found in relevant part that the evidence demonstrated that the defendant was speaking with Kearse at the time that Beaudoin arrived at the school. Beau-doin did not see a dog in the immediate area and, after approaching the defendant, asked the defendant about the dog. The defendant pointed in a general direction, indicating that the dog was in that area. He also identified himself as the owner of the dog. Beaudoin looked in the general direction in which the defendant had pointed, but, still, could not see a dog. The defendant then called the dog, which came out from behind some vehicles that were located twenty to thirty yards from where the defendant, Kearse and Beaudoin were standing. On the basis of these facts, the court concluded that the defendant was in violation of § 22-364 (a).

As we explained in part I of this opinion, the plain language of the relevant portion of § 22-364 (a) prohibits a dog owner from, inter aha, allowing a dog freely to move around another’s property, unrestrained and unhindered, and not under the direct influence of the dog’s owner. We conclude that in the present case, the facts found by the court demonstrate beyond a reasonable doubt that the defendant’s dog was freely moving around the school grounds, unrestrained and unhindered, and not under the direct influence of the defendant, including but not limited to the period of time it was out of the defendant’s sight.

Although the defendant argues that the evidence demonstrated that the dog immediately returned to the defendant’s side upon command, it can also be inferred from the evidence that the defendant had no direct control over the dog when it was behind the vehicles, out of sight, approximately twenty to thirty yards away from the defendant. We agree that the defendant demonstrated control over the dog at the time he called the dog and it responded; the evidence, however, also inferentially demonstrates that dining the time the defendant was speaking with Beaudoin, the defendant was exerting no control over the dog, who was twenty or thirty yards away from him and not in his sight. Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of permitting a dog to roam at large in violation of § 22-364 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed a motion for articulation with the trial court, asking that the court articulate its findings and conclusions in the present case. The court granted the motion, stating that, “due to inadvertence, the [cjourt’s remarks made at the time of the rendering of the decision were not electronically recorded and no written memorandum of decision ha[d] been issued.” The court complied with the defendant’s request and issued a written articulation.

       The court found that at the time Beaudoin arrived on the scene, the dog was out of eyesight, behind a vehicle twenty to thirty yards away from the defendant, and, while out of sight, the dog could go where it pleased and do what it pleased. Unless it made a sound, the defendant was completely unaware of the dog’s exact location or its specific behavior. Until the defendant called the dog, it was in an open, unenclosed area, out of his sight, and its actions were not being directed or controlled by him.

       On appeal, the defendant also argues that, although the evidence demonstrated that Beaudoin could not see the dog, there was no evidence that the defendant could not see the dog. The defendant has not briefed a claim on appeal challenging, as clearly erroneous, the court’s finding that the defendant could not see the dog when it was behind the vehicles. Nevertheless, we conclude that the court reasonably could have found, on the basis of the evidence and the reasonable inferences drawn therefrom, that because the defendant was standing with Beaudoin, and Beaudoin could not see the small dog because it was behind some vehicles approximately twenty to thirty yards away, the defendant also could not see the dog.


author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. CLERDE PIERRE
    (AC 33567)
    Lavine, Beach and Alvord, Js.
    Argued September 12
    officially released November 13, 2012

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Maria del Pilar Gonzalez, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, David I. Cohen, state’s attorney, and Joseph C. Valdes, assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Clerde Pierre, appeals from the judgment of conviction, rendered after a jury trial, of attempted criminal possession of a firearm in violation of General Statutes §§ 53a-49 (a) (1) and 53a-217 (a) (1), criminal possession of a pistol in violation of General Statutes § 53a-217c and possession of marijuana with intent to distribute in violation of General Statutes § 21a-277 (b). On appeal, the defendant claims that the court improperly denied his motion to suppress evidence that the police seized from the attic of a rooming house because he had a reasonable expectation of privacy in the attic space. We affirm the judgment of the trial court.

The record reveals the following facts either were found by the trial court or are undisputed. At approximately 6:20 p.m. on February 14, 2004, members of the Stamford police department arrived at 1318 Bedford Street after receiving a 911 call from one of the building’s tenants reporting a disturbance involving a gun. As officers arrived, they parked their cars in the rear lot and entered the rooming house through the unlocked back door. Police officers proceeded up the stairs to the third floor and encountered the defendant in the hallway. The jamb and molding surrounding the door to room 3A were damaged. When Officer Peter Altobelli engaged him in conversation, the defendant said he resided in room 3A.

Altobelli told the defendant that he was trying to locate a gun that was mentioned in a 911 call and asked if he could search the defendant’s room. The defendant consented and, because his room was very small, the search was complete in three to four minutes. Officers also searched the second and third floor hallways of the rooming house and talked with the defendant’s downstairs neighbor. Officer Don Walters searched the part of the third floor hallway located farthest from the stairway and the defendant’s room. The hallway ended at an alcove, which was essentially a foyer for the door that opened onto the fire escape. In the alcove, Walters noticed an opening in the ceiling that appeared to be access to an attic space. He could not see into the attic, but he was able to locate a stool just outside the alcove, and by standing on the stool, he was able to peek into the attic.

Peering into the attic, Walters believed he could see the butt of a gun, but he was unable to reach it. He enlisted the aid of Officers Chris Baker and Robert Somody, and Baker was able to pull himself into the attic by placing one foot in the clenched hands of Somody and placing bis other foot on the knob of the fire escape door. Baker was unable to see anything initially, but after being handed a flashlight from his partner below, he saw a gun and a bag approximately three or four feet from the attic opening. He also noticed that the attic appeared to be unfinished. He retrieved the gun and the bag and, upon opening the bag, observed several smaller bags containing marijuana. The defendant was confronted with the items and subsequently gave a formal statement implicating himself as the owner of the gun and the marijuana.

The defendant sought to have the gun and the marijuana suppressed as products of an unlawful search and his statement to the police suppressed as “fruit of the poisonous tree.” (Internal quotation marks omitted.) In a 2006 suppression hearing, the defendant argued that he had a reasonable expectation of privacy in the attic of the building. The state argued that the defendant did not have a reasonable expectation of privacy in the attic, and that, even if he did, the exigent circumstances of a 911 call referring to a gun allowed officers to ensure their safety and the safety of the building’s occupants by conducting a search of the attic. The court agreed with the state’s argument that the defendant did not have a reasonable expectation of privacy in the attic and denied the defendant’s motion to suppress. The defendant subsequently was found guilty by a jury, and this appeal followed.

On appeal, the defendant claims that, pursuant to the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut, the court improperly denied his motion to suppress the evidence seized from the attic. He contends that he had a subjective expectation of privacy when he placed the items in the attic, and his expectation of privacy is one that society recognizes as reasonable. He therefore asserts that the evidence seized from the attic should have been suppressed. He further argues that his statement to the police should be suppressed as “fruit of the poisonous tree” because the seized evidence was the subject of the statement. Finally, the defendant maintains that the situation that led the police to the building did not constitute exigent circumstances, which would excuse the nonexistence of a warrant. Because the “fruit of the poisonous tree” and exigent circumstances arguments need only be addressed should we conclude that the defendant had a reasonable expectation of privacy, we begin there.

“As a threshold matter, we set forth the appropriate standard pursuant to which we review a challenge to atrial court’s decisions regarding a suppression motion. This involves a two part function . . . . [T]o the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were clearly erroneous. Where, however, the trial court has drawn conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct in light of the findings of fact. . . . Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it . . . .” (Citation omitted; internal quotation marks omitted.) State v. Miller, 137 Conn. App. 520, 528, 48 A.3d 748, cert. denied, 307 Conn. 914, 54 A.3d 179 (2012).

“The application of the fourth amendment prohibition against unreasonable searches and seizures requires the defendant to establish that he had a legitimate expectation of privacy in the invaded area. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications. . . . The determination of whether such an expectation exists is to be made on a case by case basis . . . and requires a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). This two part test was first set forth by the United States Supreme Court in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring), and has been referred to as the Katz test by subsequent courts. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); Minnesota v. Carter, 525 U.S. 83, 97, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998); State v. Payne, 121 Conn. App. 308, 329, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010).

Analyzing the objective second prong of the Katz test requires inquiring whether the open attic space of a three-story rooming house is a place where society recognizes that the defendant had a reasonable expectation of privacy. “The determination that a particular place is protected under the fourth amendment requires that it be one in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.” (Internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. 95. “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”; United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972); and therefore “[contemporary concepts of living such as multi-unit dwellings must not dilute [the defendant’s] right to privacy any more than absolutely required.” Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir. 1974). Attempting to define the “home” in the context of a rooming house must be done cautiously to ensure that the protections of the fourth amendment are afforded to citizens in a class neutral manner. “We should vigilantly guard against permitting . . . inroads upon the reasonable expectations of privacy of the lesser situated of our citizens who are forced by economic circumstances to reside in rooming houses.’’ People v. Garriga, 189 App. Div. 2d 236, 241-42, 596 N.Y.S.2d 25, leave to appeal denied, 82 N.Y.2d 718, 622 N.E.2d 316, 602 N.Y.S.2d 815 (1993).

Courts have attempted to strike a balance between preserving the fourth amendment protections of one’s home for those living in multiunit dwellings, while recognizing that certain characteristics of such structures inherently render places within them more public. “ [A]n individual tenant may have a constitutionally cognizable expectation of privacy in areas where his use is exclusive, that is, where he has the right to control access and to exclude others.” (Internal quotation marks omitted.) State v. Sealy, 208 Conn. 689, 693, 546 A.2d 271 (1988). “Of course, one need not have an untrammeled power to admit and exclude in order to claim the protection of the fourth amendment, so long as the place involved is one affording an expectation of privacy that society regards as reasonable.” (Internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. 95-96. The exclusivity and limited accessibility that are the foundation for a finding of an expectation of privacy apply when analyzing the privacy of a particular area within a multiunit dwelling. “Police observations in the common areas of multiple family dwellings do not constitute a search under the fourth amendment if the circumstances indicate that the area is readily accessible to outsiders. . . . The contrary is true, however, if the area is sufficiently secured so as to give the tenants a justified expectation of privacy.” (Citation omitted.) State v. Reddick, 207 Conn. 323, 332, 541 A.2d 1209 (1988).

The parameters of a home that the fourth amendment protects are, of course, easier to define when considering a single-family dwelling. “Although the [f]ourth [a]mendment protects people, not places . . . the place searched is highly relevant to the fourth amendment analysis because expectations of privacy in some places are afforded greater constitutional legitimacy than in others.” (Citation omitted; internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. 94-95. In cases that involve multiunit dwellings, the line between public and private is often far murkier. Compare United States v. Booth, 455 A.2d 1351, 1354 (D.C. App. 1983) (holding that defendant residents “had a legitimate expectation of privacy in the front hallway of the house they shared, which was not obviously a rooming house open to the general public”) with State v. Sealy, supra, 208 Conn. 694 (holding that tenant renting third floor of three level rental house, which had one tenant per floor, had no reasonable expectation of privacy in stairway leading to third floor); Fixel v. Wainwright, supra, 492 F.2d 484 (distinguishing between fenced-in backyard of four unit apartment building and common hallways of such building where tenants would expect to encounter salesmen or businessmen) with United States v. Acosta, 966 F.2d 1248, 1257 (3d Cir. 1992) (finding that defendant’s authorized but limited use of backyard of multiunit dwelling did not afford him reasonable expectation of privacy there). As the subtle distinctions between these cases demonstrate, “[w]hether a defendant’s actual expectation of privacy in a particular place is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.” (Internal quotation marks omitted.) State v. Mooney, supra, 94. The nature of the structure at 1318 Bedford Street is therefore critical to our determination of where within the rooming house the defendant had a reasonable expectation of privacy.

The following additional facts pertaining to the nature of the structure either were found by the trial court or are undisputed. The building at 1318 Bedford Street was a rooming house with law offices on the first floor that were accessed through the front door and rooms for rent on the second and third floors that were accessed through the back door. There were six rental units in the rooming house, and there was a communal bathroom located on both the second and third floors. At the time of the incident, at least one residential tenant and one business occupied units on the second floor and at least one residential tenant, the defendant, occupied a unit on the third floor.

The parking lot behind 1318 Bedford Street was used by clientele of the building’s businesses during the day and by the building’s residential tenants after working hours. Each tenant had a key to his or her individual room and to the back door of the building. According to tenants and frequent visitors of the building, the back door always was unlocked during business hours and usually unlocked until very late at night. The interior of 1318 Bedford Street also was accessed via a fire escape attached to the rear of the building. The third floor landing of the fire escape was both an access point to the building and a modified porch, and the fire escape door opened into the alcove where access to the attic was located. An unattached piece of plywood that could be used to cover the attic space opening was lying adjacent to the opening in the attic, but the opening was uncovered when officers observed and seized the evidence at issue.

The defendant encourages us to equate the attic of 1318 Bedford Street with the basement of the duplex our Supreme Court analyzed in State v. Reddick, supra, 207 Conn. 323. In Reddick, the police seized a firearm during a search of the shared basement of a duplex after obtaining a search warrant for only the second and third floors. Id., 326-27. The Supreme Court held that the search was unlawful because the occupants of each unit in the duplex exercised substantial control over the basement space, as evidenced by the facts that the basement was only accessible through the interior of either home and that there were only two homes within the structure. Id., 333.

The state, on the other hand, encourages us to analogize the attic of 1318 Bedford Street to the hallway of a twenty-one unit apartment building this court analyzed in State v. Torres, 36 Conn. App. 488, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995). In Torres, this court held that a tenant of a twenty-one unit apartment building did not have a reasonable expectation of privacy in the common hallways of that apartment building because “at any time there might be deliverypersons, the landlord, his or her agents, visitors or residents of the other apartment[s] in that common hallway and the defendant could not lawfully have excluded them from the premises.” (Internal quotation marks omitted.) Id., 500. This court found that it was reasonable to expect that “ ‘an assortment of individuals’ ” would populate the common hallway of an apartment building, and, therefore, it was unreasonable to expect privacy. Id.; see State v. Reddick, supra, 207 Conn. 334 n.5.

One difference among the six unit rooming house at 1318 Bedford Street, the twenty-one unit apartment building in Torres and the two unit duplex in Reddick is the size of the structures. The number of residences located in 1318 Bedford Street, six, is obviously closer to the two residences in the duplex in Reddick than it is to the twenty-one residences in the apartment building in Torres. While the building’s residential capacity can be important in determining a defendant’s reasonable expectation of privacy in a place, it is mostly so only to the degree it defines the character of the building, including limitations on access others have to the place searched or the ability of the defendant to exercise control over that place. See United States v. King, 227 F.3d 732, 750 (6th Cir. 2000) (“the nature of the living arrangements of a duplex, as opposed to a multi-unit apartment building, affords the tenant of the duplex a greater expectation of privacy in areas the tenant of the multi-unit apartment building would not enjoy, because in the case of a duplex, access to such areas is limited to the duplex’s tenants and landlord”); see also State v. Sealy, supra, 208 Conn. 694 (holding that tenant who was sole occupant of third floor of multiunit dwelling, with one tenant on second floor and business on first floor, had no reasonable expectation of privacy in common stairway leading to third floor).

It is uncontested that the police officers, in response to the 911 call, were lawfully in the hallways of 1318 Bedford Street. Torres leads us to conclude that the defendant did not have a reasonable expectation of privacy in the common hallways of the rooming house because they were open to the public and that Walters could, therefore, lawfully search the third floor hallway and alcove. In order to determine there was a violation of the defendant’s reasonable expectation of privacy, this court would have to determine that entering the attic space of 1318 Bedford Street was sufficiently similar to entering the basement in Reddick. An open, unfinished attic that is accessed from a common area is factually distinct from a closed basement, accessed only from a private area, that is used for storage of personal items and completing household chores.

While neither Torres nor Reddick completely reflect the facts of this case, both cases emphasize the importance of access to and control over the place in question. The logic of Torres that cautions against finding a reasonable expectation of privacy in a place that is open and accessible to others is applicable in this case. See State v. Torres, supra, 36 Conn. App. 500-601. Tenants and visitors freely entered 1318 Bedford Street through both the back door and the fire escape, and those entering through the fire escape passed below the unlocked and open attic space. The defendant was not in a position to restrict the landlord’s agents, delivery persons or other tenants’ visitors from passing below, peering into or even climbing through the opening into the attic. While it is likely that fewer people accessed the attic than walked down the hallways at 1318 Bedford Street, the defendant had the same inability to control the access of others to either space. The lack of control over the attic and the unfettered public access to the interior of 1318 Bedford Street is substantially different from the basement in Reddick, which was only accessible by passing through either of the two residential units of the structure. See State v. Reddick, supra, 207 Conn. 333. The uncovered attic opening adjacent to an entrance into 1318 Bedford Street is much more akin to an extension of a common hallway than the private basement in Reddick.

We conclude that the defendant did not have an expectation of privacy in the attic space at 1318 Bedford Street that society would recognize as reasonable. It is therefore unnecessary to discuss whether the defendant had a subjective expectation of privacy when he placed the gun and the marijuana in the attic. See State v. DeFusco, 224 Conn. 627, 633 n.9, 620 A.2d 746 (1993) (“whether the defendant possessed a subjective expectation of privacy ... is unnecessary to the resolution of this case in light of our conclusion that the defendant has not satisfied the second part of the Katz test”). In fight of our finding that the defendant did not have a reasonable expectation of privacy in the attic of 1318 Bedford Street, we need not consider the state’s contention that exigent circumstances permitted searching the attic without a warrant and the defendant’s contention that his statement to police after they discovered the evidence should be suppressed as “fruit of the poisonous tree.”

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the statement he gave to the police after being confronted with the gun and marijuana should have been suppressed because it was solicited using evidence that he claims was unlawfully seized.

       The space referred to as an alcove was a continuation of the hallway set off by a door frame with no door. At the suppression hearing it was referred to as an “alcove,” a “foyer” and a “little cubic area.”

       The fruit of the poisonous tree doctrine states that “evidence otherwise admissible but discovered as a result of an earlier violation is excluded as tainted, lest the law encourage future violations.” Missouri v. Seibert, 542 U.S. 600, 612 n.4, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 [1963]).

       The court did not address the issue of exigent circumstances in its 2006 oral memorandum of decision. In preparation for this appeal, the defendant filed a motion for articulation requesting that the trial court determine whether the exigent circumstances in this case justified finding an exception to the warrant requirement. The court granted the motion and held that “[t]he circumstances, in their totality, did not rise to the level of exigency as to obviate the warrant requirement of the [fjourth [a]mendment.”

       No claim that the police were unlawfully within the structure at 1318 Bedford Street was made at trial or on appeal.

       Though the record reflects that the attic space could be covered by a piece of plywood, it also reflects that the plywood was not covering the opening at the time the officers saw and seized the evidence. We therefore view the attic as open and do not postulate on the implications of a cover that potentially could restrict access and vision into the attic space.

       It is important to note that there is no evidence that the defendant ever used the attic space prior to placing a gun and marijuana there in anticipation of the police arriving at 1318 Bedford Street. The defendant testified that he assumed that any tenant could use the space, but there is nothing in the record to establish that he had any relationship with the space. According to the testimony of Baker, the attic was unfinished and did not appear to contain anything of interest. The defendant’s relationship with the place searched is usually a more significant factor when determining the defendant’s subjective privacy. See State v. Boyd, 57 Conn. App. 176, 185, 749 A.2d 637 (listing factors that defendant must prove to show he had subjective expectation of privacy as: “[1] his relationship with the location was personal in nature, [2] his relationship with the location was more than sporadic, irregular or inconsequential, and [3] he maintained the location and the items within it in a private manner at the time of the search” [internal quotation marks omitted]), cert. denied, 253 Conn. 912, 754 A.2d 162 (2000). It is, however, also probative of whether the space in question was part of his home and, therefore, part of aplace where society would recognize that he has a reasonable expectation of privacy.


text:
    VINCENT QUINTO v. CRESCIENZO BOCCANFUSCO ET AL. APPROVED PURIFICATION CORPORATION v. CRESCIENZO BOCCANFUSCO ET AL.
    (AC 33884)
    (AC 33886)
    Beach, Alvord and Pellegrino, Js.
    Argued September 28
    officially released November 13, 2012

      Donald M. Brown for the appellants (plaintiff in each case).

      Joseph C. Sanfilippo for the appellees (defendants in both cases).
   Opinion

ALVORD, J.

In these entry and detainer actions, the plaintiffs, Vincent Quinto and Approved Purification Corporation (corporation), appeal from the judgments rendered by the trial court in favor of the defendants, Crescienzo Boccanfusco and Giuseppe Boccanfusco. On appeal, the plaintiffs claim that the court improperly concluded that they were not in actual possession of the property at issue within the meaning of the entry and detainer statute, General Statutes § 47a-43. We disagree and, therefore, affirm the judgments of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ appeals. The defendants acquired title to 650 Knowlton Street in Bridgeport (property), a commercial property previously owned by Vincent Quinto, as the successful purchasers at a court-ordered sale to foreclose municipal tax liens (foreclosure action). The court in the foreclosure action approved the committee sale on February 17, 2011, and, after a series of motions, the return of sale with the proceeds was submitted to the court on August 19, 2011. The next day, the defendants entered the property. The gates to the lot were open and the doors to the building were unsecured. The defendants began to remove unregistered vehicles and ordered a dumpster to dispose of debris in the yard and in the building. They also seemed the property with their own locks.

Vincent Quinto arrived at the property later that day and confronted the defendants, claiming that he still owned the land, building and personal property. He returned on succeeding days and made the same claims to ownership. Although the police were contacted, they considered the situation to be a civil matter. The plaintiffs then filed their entry and detainer actions in the Superior Court and were granted ex parte injunctions on August 26, 2011. At that point, the defendants ceased their cleanup operations and provided Vincent Quinto with a set of keys to the property.

A show cause hearing on the continuance of the temporary injunction commenced on September 7, 2011. At the beginning of the hearing, with the parties’ consent, the court consolidated the actions for trial. Four witnesses testified during the course of the two day hearing: Vincent Quinto; Marianne Quinto; Judy Beasley, who was an acquaintance of Vincent Quinto; and Crescienzo Boccanfusco. The plaintiffs submitted two exhibits: a list of personal property that they claimed had been unlawfully removed by the defendants, and a certificate of title in the name of Marianne Quinto to one of the motor vehicles that had been left on the property. The defendants submitted, inter alia, an assessor’s field card from the city of Bridgeport and fifty-three photographs of the lot and building taken by Cres-cienzo Boccanfusco in the presence of Vincent Quinto on August 26, 2011.

On September 12,2011, the court issued its memorandum of decision. The court made the following findings of fact: (1) the subject building is a 2880 square foot masonry building with a flat tar and gravel roof and is located on 0.29 acres of land; (2) the property is zoned for light industrial use; (3) when the defendants arrived at the property on August 20, 2011, the gates to the chain-link fence that enclosed the property were open and the doors to the building were unsecured; (4) the area surrounding the building was overgrown with trees and shrubs from years of neglect; (5) approximately sixteen unregistered motor vehicles were located in the parking lot and appeared to have been left there for an extended period of time; (6) stoves, washing machines, clothes dryers and bathtubs also were stored in the parking lot and appeared to have been left there for an extended period of time; (7) the interior of the building was cluttered with piles of garbage and debris; (8) the building had not been serviced by utilities for several years; water and electrical service had been discontinued in 2009 and 2007, respectively; (9) the interior walls of the building were covered with mold and filth, and insulation was hanging from the ceiling rafters; (10) the interior of the building was “unsafe, unhealthy and not fit for human habitation”; (11) the corporation ceased business operations at the property in December, 2010; and (12) mail for the corporation had been directed to Marianne Quinto’s home in Trumbull since December, 2010.

Although Vincent Quinto testified at the hearing that he had resided in the building on the property since May 1, 2011, the court found his claims to be “simply not credible.” His testimony, according to the court, was severely undermined by his admissions in documents filed with the court that listed his address as 30 Stevens Street in Bridgeport. When the plaintiffs filed their entry and detainer actions, Vincent Quinto did not list the property as his current address, but rather listed the address of his attorney. The corporation listed a Delaware address as its current address. Furthermore, the court found Vincent Quinto’s claims of actual possession to be not credible “considering the deplorable condition of the premises and the lack of any objective evidence to indicate human habitation.” The court then discussed applicable case law and concluded that the plaintiffs failed to demonstrate that they had exercised dominion and control over the property. Accordingly, the court dismissed the plaintiffs’ actions.

On appeal, the plaintiffs claim that the trial court’s conclusions were improper because the testimony of their witnesses proved that they had not abandoned the property and were in actual possession when the defendants entered the property on August 20, 2011. The plaintiffs’ arguments, therefore, are addressed to the factual findings of the court and the legal conclusions drawn therefrom. “Our review of questions of fact is limited to the determination of whether the findings were clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn. App. 541, 549-50, 920 A.2d 316 (2007). “When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bedard v. Weston Motors, LLC, 121 Conn. App. 760, 764, 998 A.2d 193, cert. denied, 298 Conn. 905, 3 A.3d 68 (2010).

“The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force. . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry. . . . Section 47a-43 was made to protect a person in such possession . . . from disturbance by any but lawful and orderly means.” (Internal quotation marks omitted.) Id.

“A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed. . . . The question of whether the plaintiff was in actual possession at the time of the defendant’s entry is one for the trier of fact. . . . Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise. . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion.” (Emphasis in original; internal quotation marks omitted.) Wilcox v. Ferraina, supra, 100 Conn. App. 550-51.

In the present case, the court determined, on the basis of its findings of fact, that “[Vincent] Quinto was not a resident of the [property] on the operative date” and that both plaintiffs failed to make the requisite showing that they exercised sufficient dominion and control over the property to find actual possession within the meaning of § 47a-43. As stated by the court: “The court does not accept the deposition of debris, useless equipment, broken furniture and junk automobiles (even if one can produce a certificate of title for one out of sixteen vehicles) on a piece of property as a legitimate indicia of the exercise of dominion and control sufficient for the court to make a finding of actual possession.”

Our careful review of the record reveals ample support for the court’s factual findings. We decline the plaintiffs’ invitation to reweigh the evidence. “Once again, this court is compelled to state, what has become a tired refrain, we do not retry the facts or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Wilcox v. Ferraina, supra, 100 Conn. App. 555. Given the evidence in the record, we cannot say that the court’s finding that the plaintiffs were not in actual possession of the property was clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The stock ofApproved Purification Corporation, a Delaware corporation, is owned solely by Marianne Quinto, who is the mother of Vincent Quinto. Marianne Quinto is the president, and Vincent Quinto is the vice president of the corporation.

       General Statutes § 47a-43 (a) provides in relevant part: “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”


text:
    STATE OF CONNECTICUT v. JESSE PAREDES
    (AC 33529)
    Lavine, Sheldon and Mihalakos, Js.

      Argued September 25
    officially released November 13, 2012

      Norman A. Pattis, with whom, on the brief, was Daniel M. Erwin, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and John H. Malone, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Jesse Paredes, appeals from the judgment of conviction, rendered after a jury verdict, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and (5), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) failed to order an adequate remedy in the face of inadmissible hearsay and (2) admitted into evidence a video recorded interview (video) of the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In May, 2008, the thirteen year old female victim was living in the junior unit of a residential treatment center (center) that provided twenty-four horn’ supervision for children with a variety of issues. Members of the center staff were responsible for assisting the children with the activities of daily living and ensuring that each child complied with his or her treatment plan. At the time, the defendant was employed as a per diem child development assistant at the center. His responsibilities required him to ensure the children’s safety and to supervise their daily activities.

On the afternoon of May 4, 2008, the defendant was one of three staff members on duty in the junior unit. While the other two staff members were engaged in activities with three other children, the defendant suggested to the victim that they take a walk. Instead of taking her for a walk, the defendant took the victim to the “sensory room.” The victim understood the purpose of going to the sensory room was to have sex. In the sensory room, the victim removed her pants and underwear, and the defendant unzipped his trousers. When the defendant inserted his penis into the victim’s vagina, the victim experienced pain and asked the defendant to stop. The defendant stopped momentarily, but again entered the victim despite her complaints of pain. Subsequently, the defendant ejaculated onto the victim’s back. The defendant instructed the victim not to tell anyone what they had done. The victim and the defendant then went to the lounge at the center.

When they entered the lounge, the defendant informed another staff member, Melissa Ann Levack, that he and the victim had taken a walk. Levack thought that the defendant’s comment was unusual because he ordinarily told staff members that he was taking a walk with a child before, not after, the fact. Later, the defendant and the victim went to the gymnasium where staff member Eric Roccapriore was playing basketball with other children. Roccapriore invited the victim to join the game, but she declined. Roccapriore observed the victim pace around the doorway looking confused. He previously had observed the victim with that affect when she was anxious and did not want to engage in activities.

A staff shift change occurred at approximately 3 p.m. Justin Paxton, the junior unit supervisor, observed that the victim’s demeanor was abnormal. The victim was standoffish rather than acting as her usual friendly, boisterous self. Paxton approached the victim and asked if something was bothering her. The victim did not want to discuss “it . . . After conferring with another staff member, Paxton again approached the victim, this time with another child who encouraged the victim to talk to Paxton. The victim responded that she did not “want to get this person in trouble. ... I don’t want to get this person fired . . . .” The victim’s statements caused Paxton concern. He inquired further, and the victim told him that she and a staff member had engaged in intercourse and that she was afraid of being pregnant. The victim also stated that she had vaginal bleeding. Paxton consoled the victim and then reported the victim’s allegation to his supervisor.

At 11 p.m. that day, the victim was taken to a hospital. Before she went to the hospital, her underwear was placed in a plastic bag; at the hospital, it was given to a police officer. The victim was referred to the Connecticut Children’s Medical Center where Renee Richard, a registered nurse trained as a sexual assault nurse examiner, obtained the victim’s medical history and biological samples, which also were given to the police. During her examination of the victim, Richard discovered a tear in the victim’s hymen, which caused bleeding. James Parker, a physician, testified that clinical observations of the victim’s injuries were consistent with the victim’s report of sexual assault.

The police subsequently seized a beanbag chair from the sensory room because it contained what appeared to be potential evidence. The soiled portion of the beanbag chair and the victim’s underwear were sent to the state forensic laboratory for testing. Testing results revealed human seminal fluid consistent with a DNA profile consistent with the defendant’s on the victim’s underwear and a mixed biological sample with DNA profiles consistent with the defendant’s and the victim’s on the beanbag chair. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court failed to order a mistrial in response to a witness’ report of inadmissible hearsay by the victim in violation of his right to due process. We disagree.

The following facts are relevant to this claim. Paxton testified that on May 5, 2008, the victim went about her usual activities at the center and that he was observing her during breakfast. When asked to describe the victim’s behavior at that time, Paxton testified that the victim “was really troubled. She, at one point, actually kind of stood up and started screaming, Jesse [the defendant] raped me last night, Jesse raped me last night.” Defense counsel objected generally to the testimony and asked that it be stricken from the record.

The court held a sidebar conference and then excused the jury. The court stated for the record: “We had a sidebar. [Defense counsel] indicated that the nature of his objection was that the response went beyond the question, that the response was outside the parameters of the question and elicited more information than what was called for. The question I had is, did you watch her behavior in the cafeteria, what was her behavior and what did you observe? The question didn’t specifically call for hearsay. The state then claimed that it would seek to get it in under [the] state of mind exception to the hearsay rule. [Defense counsel] then added that he was also objecting on the basis of hearsay. So, let me hear from you [prosecutor] farther on this issue. The objection is that it’s hearsay. Your response is that it falls within the . . . state of mind exception?” The prosecutor argued that Paxton’s testimony regarding the victim’s statement in the cafeteria was admissible pursuant to the state of mind exception to the rule against hearsay. The court disagreed that the victim’s statement, “Jesse raped me,” was admissible under the state of mind exception to the hearsay rule, noting that it was too prejudicial, and sustained the defendant’s objection.

Thereafter, the following colloquy transpired between the court and defense counsel:

“The Court: ... I will instruct the jury that they’re to disregard the last — to disregard the question and do you want me to remind them of the statement or just to tell them that they are to disregard the last answer?
“[Defense Counsel]: Your Honor, I would ask the court to remind them of the answer and to indicate that is — you have ruled on that, that is stricken . . . and they’re not to consider that.
“The Court: That I’m striking the portion of the response that — you want me to tell them that I’m striking the portion of the response that [the victim] said, ‘Jesse raped me’?
“[Defense Counsel]: Yes, Your Honor.
“The Court: And you want me to use those words, specifically?
“[Defense Counsel]: Yes, Your Honor.”

When the jury returned to the courtroom, the court stated, in part: “Ladies and gentlemen of the jury, I’m going to instruct you that the witness’ response to the last question, the portion of the response that stated that [the victim] yelled, ‘Jesse raped me,’ that portion of the response is stricken from the record. You’re not to consider that.”

On appeal, the defendant claims that the court’s failure to order a mistrial on the basis of Paxton’s testimony that the victim stated, “Jesse raped me,” violated his right to due process. The defendant properly acknowledges that he did not request a mistrial and therefore that the issue is not preserved for our review. He argues, however, that his claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the record is adequate for review, the claim is of constitutional magnitude, the constitutional violation clearly exists and deprived him of a fair trial, and the error is not harmless beyond a reasonable doubt. The state argues that the defendant’s claim is not reviewable because he waived it. We agree with the state that the defendant waived his constitutional claim.

“[WJaiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) State v. Wilson, 52 Conn. App. 802, 810, 729 A.2d 778 (1999); see also State v. Kitchens, 299 Conn. 447, 482-84, 10 A.3d 942 (2011) (waiver of right to challenge jury instruction). “[A] valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review [and it] also thwarts plain error review of a claim.” State v. Corona, 69 Conn. App. 267, 274, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).

Because the procedural posture of this case is similar to that in State v. Wells, 111 Conn. App. 84, 957 A.2d 557, cert. denied, 289 Conn. 958, 961 A.2d 423 (2008), that case controls our decision here. In Wells, during its deliberations, the jury found marijuana that had not been admitted into evidence intermingled with properly admitted evidence. Id., 87-88. After the jurors sent the court a note informing it that they found the marijuana in a glove in the evidence box, the court informed “both parties that it would instruct the jury . . . not to consider it; it’s not evidence in the case. But I have to welcome comments .... The defendant stated that he would agree to such an instruction. The court then specifically instructed the jury not to consider the marijuana .... It’s just not evidence in the case, and that’s how I’m going to instruct you on that.” (Internal quotation marks omitted.) Id., 87.

On appeal, the defendant in Wells claimed that the jury’s exposure to the marijuana violated his constitutional right to a fair trial, and that the court erred in failing, sua sponte, to declare a mistrial. Id. The defendant acknowledged that he had not preserved the claim at trial and sought review pursuant to Golding, or, in the alternative, reversal pursuant to the plain error rule embodied in Practice Book § 60-5. This court concluded that the defendant had waived his constitutional claim “when he expressly agreed with the court’s proposed jury instruction and failed to proffer any type of objection after that instruction was given to the jury.” Id., 89.

“One of the required conditions under Golding is that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial .... The appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. ... As the reviewing court, we will review [the claim] and arrive at a conclusion as to whether the alleged constitutional violation clearly exists and whether it clearly deprived the defendant of a fair trial. . . . We conclude that because the defendant waived the claim, there is no clear, existing constitutional violation, and, thus, the claim fails to satisfy the third prong of Golding. Additionally, on the basis of the defendant’s waiver, we are not persuaded that plain error exists with regard to this claim.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.

In this case, the court informed the defendant of the curative instruction it intended to give, and defense counsel requested that the instruction include a recitation of Paxton’s objectionable testimony. The court gave the instruction as requested by defense counsel. “Absent evidence to the contrary, a jury is presumed to have followed the court’s instructions.” State v. Banks, 117 Conn. App. 102, 119, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009). Because the defendant waived his claim at trial, we will not review it on appeal, nor will we reverse his conviction on the basis of his claim pursuant to the plain error rule.

II

The defendant’s second claim is that the court violated his right to confrontation by admitting the video of the victim regarding the sexual assault. Again, the defendant failed to preserve his claim at trial. In order to bring his claim within the ambit of Golding, the defendant claims that the victim’s statements in the video are testimonial hearsay and that their admission into evidence violated his constitutional right to confrontation and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We decline to review this claim, as it is not of constitutional magnitude.

The following facts pertain to the defendant’s claim. At trial, the state placed into evidence a redacted video of an interview that Suzanne Jolissaint, a forensic interviewer at Aetna Foundation Children’s Center at Saint Francis Hospital and Medical Center, had with the victim. Jolissaint testified that, in her position, she interviews children and teenagers when there is an allegation of abuse. She works with a team of medical providers, mental health professionals and social workers. Her role, for which she is specifically trained, is to talk to a child or teenager about what may have happened and to provide that information to a medical provider, as well as a therapist, so that the child or teenager receives proper treatment. Jolissaint’s interview of the victim was part of a diagnostic procedure in the chain of treatment that was reviewed by physicians for the purpose of recommending treatment for the victim.

On appeal, the defendant claims that his constitutional right to confrontation was violated because the video contained testimonial hearsay of the victim. The victim, however, testified at trial, and the defendant had an opportunity to cross-examine her. “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Crawford v. Washington, supra, 541 U.S. 60 n.9; State v. George J., 280 Conn. 551, 595-96, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007); State v. Pierre, 277 Conn. 42, 78, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). Moreover, when the primary purpose of the statements is to receive a medical diagnosis or treatment, not future criminal prosecution, the confrontation clause is not implicated. See State v. Arroyo, 284 Conn. 597, 625-35, 935 A.2d 975 (2007). The defendant has not demonstrated that his claim is of a constitutional nature, and he therefore is not entitled to review pursuant to State v. Golding, supra, 213 Conn. 239-40.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant received a total effective sentence of thirty-two years imprisonment, execution suspended after seventeen years, followed by twenty years of probation with special conditions, including lifetime registration as a sex offender.

       The sensory room was a locked room at the center designed as a place where a child in crisis could be taken away from a stressful situation to calm down.

       Earlier in the day, the defendant had confided in Levack about the sexual frustration he was experiencing with his girlfriend.

       The victim testified before Paxton did, and testified that she told Paxton what the defendant did to her. The defendant had an opportunity to cross-examine the victim. The defendant did not object to Paxton’s testimony about what the victim told him.

       We have articulated the defendant’s claim in a distilled form. The defendant stated the issue on appeal as “[wjhether the court erred in not ordering an adequate remedy upon a constancy of accusation witness’s uttering of substantive, testimonial hearsay?”

       Defense counsel stated: “I’m going to object to that, Your Honor. I’d ask that that comment be stricken from the record.”

       In its final instructions to the jury, the court charged in part that “testimony that [the court has] instructed [them to] disregard” was “not evidence, and you must not consider [it] as evidence in deciding the facts of this case . . . .”

       The state makes no claim that the defendant induced or invited error. See State v. Fabricatore, 281 Conn. 469, 482 n.18, 916 A.2d 872 (2007).

       In the alternative, the defendant claims that his conviction should be reversed pursuant to the plain error rule. See Practice Book § 60-5. Because we conclude that the defendant waived his claim as to the victim’s statement, plain error does not apply.

       The defendant has provided no authority for his claim that the court had a duty, sua sponte, to order a mistrial under the facts present here.

       Although the defendant filed a motion in limine with respect to the video, the state redacted that portion of the video to which the defendant objected. When the redacted video was shown to the jury, the defendant did not object on any ground.

       See State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133 (“[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender” [internal quotation marks omitted]), cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).

       The defendant also claims that the video was admitted pursuant to the business record exception, not the medical treatment exception, to the hearsay rule and therefore this case is distinguishable from State v. Arroyo, 284 Conn. 597, 625-35, 935 A.2d 975 (2007). We do not agree with the defendant’s reading of the record. At trial, the defendant did not object to the redacted video on any basis. The state, therefore, had no obligation to identify any particular basis on which to offer the video into evidence. Although the prosecutor questioned Jolissaint to establish that the video had been made in the ordinary course of business, Jolissaint also testified that her interview with the victim was conducted for diagnostic and medical treatment purposes. The substance of the video, therefore, falls within the medical treatment exception to the hearsay rule. See Conn. Code Evid. § 8-3(5).


text:
    ANNE M. BRADLEY v. JERALD S. BARBER ET AL.
    (AC 33793)
    DiPentima, C. J., and Lavine and Bear, Js.
    Argued September 21
    officially released November 13, 2012

      Anne M. Bradley, pro se, the appellant (plaintiff).

      Jerald S. Barber, for the appellees (defendants).
   Opinion

PER CURIAM.

The plaintiff, Anne M. Bradley, appeals from the judgment of dismissal rendered pursuant to Practice Book § 14-3. The court has reviewed the record, briefs and oral argument thoroughly in this case and has considered the applicable law. We find no error by the trial court in its order dismissing the action.

The judgment is affirmed.