author: SCHALLER, J.

text:
    LEWIS JERSEY ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF DERBY
    (AC 27438)
    Schaller, Harper and Rogers, Js.

      Argued February 5
    officially released May 22, 2007

      Ian Angus Cole, for the appellants (plaintiffs).

      Brian A. Lema, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs, Lewis Jersey and Susan Jersey, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals of the city of Derby, denying their application for a variance. On appeal, the plaintiffs claim that § 25.25 (I) (2), formerly § 195-80 B, of the Derby zoning regulations, is illegal and void, and (2) that the defendant’s denial of the application was unreasonable, arbitrary or illegal. We agree with the plaintiffs’ first claim and, accordingly, reverse the judgment of the trial court.

The following factual and procedural history is pertinent to the resolution of the plaintiffs’ appeal. The subject property is located at 13 Stephen Street, Derby, in the R-3 residential zoning district. The plaintiffs, by way of an application dated February 1, 2005, requested a variance of the fifty foot rear yard setback requirement. They had sought to construct a two car garage, with additional living space, on their property. The application indicated that the unique shape of the plaintiffs’ lot, with a concave rear boundary, permitted them to build only an odd shaped addition that would not be in harmony with the surrounding properties. In order to build the garage in the shape of a rectangle, the plaintiffs needed the variance to reduce the rear setback to thirty-six feet.

On February 17, 2005, the defendant held a public hearing on the plaintiffs’ application. During their presentation, the plaintiffs conceded that they were making a reasonable use of the property. No one voiced any public opposition to the variance. The chairman, Samuel M. Rizzitelli, Jr., stated that in order to grant the variance, the defendant needed to make the following findings: (1) if the plaintiffs complied with the zoning regulations, they would not be able to make any reasonable use of the property; (2) the difficulties or hardship are particular to the property in question, in contrast with those of others in the same district; (3) the hardship was not the result of the plaintiffs’ action; and (4) the hardship was not merely financial or pecuniary. Rizzi-telli then noted that the plaintiffs had acknowledged that they presently were making a reasonable use of the property. Another member of the board, Beverly Moran, indicated that, in her view, three of the conditions were satisfied. After additional discussion, the board unanimously denied the application. Rizzitelli stated that “according to the code we can only approve variances when the record shows that you cannot make a reasonable use of the property.”

On March 11, 2005, the plaintiffs appealed from the decision of the defendant to the Superior Court. The court determined that the defendant acted within its discretion to deny the application for a variance. The court also rejected the plaintiffs’ claim that the regulation’s requirement that the owner of property not have any reasonable use before a variance could be granted was not illegal or void. Specifically, the court stated that “the regulation instructs [the defendant] to consider the effect that the issuance or denial of a variance request has upon the property owner’s reasonable use of the property in order to determine whether an unusual difficulty or hardship exists to allow the granting of a variance.” Following our grant of certification, this appeal followed.* **

The plaintiffs claim that § 25.25 (I) (2) of the Derby regulations is illegal and void. We begin our analysis by setting forth our standard of review. We generally review the actions of a zoning board under a deferential standard. Benson v. Zoning Board of Appeals, 89 Conn. App. 324, 329, 873 A.2d 1017 (2005). In the present case, however, the issue presented requires us to determine whether the Derby regulation is valid. “Resolution [of the validity of a regulation] requires us to review the applicable statutory provisions and the relevant town regulations. Because the interpretation of . . . [statutes and] regulations presents a question of law, our review is plenary.” (Internal quotation marks omitted.) Jewett City Savings Bank v. Franklin, 280 Conn. 274, 278, 907 A.2d 67 (2006); Andrews v. Planning & Zoning Commission, 97 Conn. App. 316, 319, 904 A.2d 275 (2006). We therefore must decide “whether [the court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pinchbeck v. Planning & Zoning Commission, 69 Conn. App. 796, 801, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).

A brief review of our law with respect to variances will be helpful for our discussion. “A variance has been defined as the authority granted to [an] owner to use his property in a manner forbidden by zoning regulations. . . . Our Supreme Court has cautioned that the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. . . . The power to authorize a variance is only granted for relief in specific and exceptional instances.” (Citation omitted; internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 165-66, 855 A.2d 1044 (2004). “[A] board may grant variances with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. ... To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control.” (Internal quotation marks omitted.) Hoffer v. Zoning Board of Appeals, 64 Conn. App. 39, 42, 779 A.2d 214 (2001); see also Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 570, 785 A.2d 601 (2001) (“[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance” [internal quotation marks omitted]).

The essence of the plaintiffs’ claim is that the regulation in question contains an additional element that is not required by our statutes. General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties ... (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . .”

Our case law establishes that “[f]or a variance to be granted under General Statutes § 8-6 (3) [now § 8-6 (a) (3)], two conditions must be fulfilled: (1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn. App. 327, 330, 834 A.2d 801 (2003); see also Francini v. Zoning Board of Appeals, 228 Conn. 785, 790, 639 A.2d 519 (1994); Kalimian v. Zoning Board of Appeals, 65 Conn. App. 628, 631, 783 A.2d 506, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001).

In the present case, the regulation in question incorporates an additional requirement for applicants seeking a variance. In order for the defendant to grant a variance, applicants must demonstrate that they are unable to make any reasonable use of the property. We acknowledge that the concept of “reasonable use” exists in our variance jurisprudence. As a general rule, “[disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of practical difficulty or unnecessary hardship.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). Such considerations “are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.” (Emphasis added; internal quotation marks omitted.) Id.; see also Horace v. Zoning Board of Appeals, supra, 85 Conn. App. 171; Hoffer v. Zoning Board of Appeals, supra, 64 Conn. App. 44. In other words, whether a property retains any reasonable use can be a test for determining a hardship in some circumstances but is not a prerequisite in all cases.

Our decision in Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), is particularly instructive. In Stillman, the applicant homeowner sought a variance from the town of Redding’s setback and coverage regulations in order to build an addition to her home. Id., 632. The zoning board of appeals awarded the homeowner the variance, and an adjoining landowner filed an appeal to the Superior Court. Id. The court sustained the appeal, holding that the homeowner had failed to satisfy the hardship requirement necessary to grant the request for a variance. Id.

We reversed the judgment of the court and stated: “The trial court gave the following formulation of the test for the existence of a hardship: Exceptional difficulty or undue hardship is established where a board could reasonably find that the application of the regulation to the property greatly destroys its value for any of the uses to which it could reasonably be put and where the regulation bears so little relationship to the purpose of zoning that, as to the particular premises, the regulation has a confiscatory or arbitrary effect. The trial court concluded that because the record is devoid of evidence that the property has little or no value because of the setback regulations, no hardship has been shown.” (Internal quotation marks omitted.) Id., 635-36.

We agreed with the homeowner’s argument that such a test was overly restrictive and not the proper analysis for establishing a hardship. Id., 636. The test utilized by the court was for “the extreme situation where the application of a regulation renders property practically worthless, and that loss of value alone amounts to a hardship.” Id.; see also Giarrantano v. Zoning Board of Appeals, 60 Conn. App. 446, 452-53, 760 A.2d 132 (2000); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 132-33. We further explained that “[a] variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property.” Stillman v. Zoning Board of Appeals, supra, 25 Conn. App. 636. We concluded that, due to the unique conditions of the property, the board properly had granted the variance. Id., 636-37.

Our Supreme Court has explained that “[t]he authority for a zoning board of appeals to vary the application of zoning regulations is found in § 8-6 (3) [now § 8-6 (a) (3)] of the General Statutes . . . .” Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972); see also Torrington v. Zoning Commission, 261 Conn. 759, 779-80, 806 A.2d 1020 (2002). As we previously have detailed, that statute authorizes a zoning board of appeals to grant a variance where the comprehensive zoning plan will not be substantially affected and adherence to the strict letter of the zoning regulations would cause an unusual hardship that is unnecessary to the carrying out of the general purpose of the zoning plan. Dupont v. Zoning Board of Appeals, supra, 80 Conn. App. 330. In the present case, the regulation requires that every applicant seeking a variance must satisfy a test that has been reserved for the rare circumstance in which a property is rendered practically worthless. In other words, the requirement that the property cannot have any reasonable use has been grafted onto every application for a variance rather than the limited situation for which it was designed.

This additional requirement impermissibly limits the power, given by the General Assembly, of the defendant to grant variances in cases in which a hardship has been established, even if the property may be put to some other reasonable use. Simply put, it prohibits the defendant from utilizing its discretion to determine whether to grant or deny a variance in favor of a bright-line rule. See Devaney v. Board of Zoning Appeals, 132 Conn. 537, 543, 45 A.2d 828 (1946) (question of whether to grant variance left to sound discretion of zoning board). As our Supreme Court has stated: “Any attempt to limit [the] powers and duties [of a zoning board of appeals] by restrictive regulation in conflict with the enactment of the General Assembly exceeds the authority of the town. The regulations governing the powers and duties of the zoning board of appeals are not enforceable.” (Emphasis added.) Farnsworth v. Windsor, 150 Conn. 484, 486-87, 190 A.2d 915 (1963) (regulation limiting variances to situations in which lot exceptionally irregular, narrow, shallow or steep or in which other exceptional physical characteristics exist not valid or enforceable); see also Celentano, Inc. v. Board of Zoning Appeals, 149 Conn. 671, 676-77, 184 A.2d 49 (1962); Mabank Corp. v. Board of Zoning Appeals, 143 Conn. 132, 134-36, 120 A.2d 149 (1956), overruled in part on other grounds by Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 240, 303 A.2d 743 (1972); Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 304-305, 605 A.2d 885 (1992); T. Tondro, supra, p. 125.

The defendant counters that in Zoning Board of Appeals v. Planning & Zoning Commission, supra, 27 Conn. App. 297, we stated that § 8-6 “grants broad powers to the zoning board of appeals and limits those powers only when the zoning commission passes a regulation explicitly limiting the issuance of variances.” (Emphasis added; internal quotation marks omitted.) Id., 303. Our statement, however, was referring to the language in § 8-6 that “the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . .” The defendant has failed to refer us to any Derby zoning regulation that contains such a limitation that is applicable to the plaintiffs’ property. This argument, therefore, is not germane to the plaintiffs’ claim.

We conclude that the additional requirement pertaining to variances that is found in § 25.25 (I) (2) is void and has no legal effect. It therefore was improper for the defendant to the deny the plaintiffs’ application for a variance on that basis, and the judgment of the trial court must be reversed.

As a final matter, we address the scope of our remand. The plaintiffs argue that the record is clear that the only reason for denying the variance was the failure to demonstrate that the property had no other reasonable uses. Accordingly, they contend that we should order that the variance be granted. “Generally, when the court finds the action of an administrative agency to be illegal, it should go no further than to sustain the appeal. . . . For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority. . . . When it appears, however, that the zoning authority could reasonably reach only one conclusion, the court may direct the authority to do that which the conclusion requires.” (Citation omitted; internal quotation marks omitted.) Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 153, 365 A.2d 387 (1976). The plaintiffs maintain that in the present case, the defendant could reach only one conclusion and that we therefore should direct it to grant the variance.

We, however, do not agree that the facts and circumstances of the present case warrant an exception to our general practice of remanding for further proceedings. Four of the five members of the defendant discussed the merits of the plaintiffs’ application. A motion was made to approve the application, and all five members voted in the negative. Richard Bartholomew, a member of the defendant, then asked if Rizzitelli would provide a reason for the denial. Rizzitelli stated: “To articulate a reason for the denial I would—if anybody wants to add to this, but I would say that you know the record shows that you are making reasonable use of your property and according to the code we can only approve variances when the record shows that you cannot make a reasonable use of the property. In all fairness to everybody in the entire City we have to apply this code without prejudice to anyone so that in order to be fair everybody follows the same standard. So that’s probably the basis—that’s a solid base. I don’t know if anybody wants to add to that. It makes sense.” Moran then stated that the “no reasonable use” requirement appeared to be the only basis to reject the application and Rizzitelli replied: “Without that requirement in the code it would probably be approved, okay.”

In our view, this colloquy, which came after the vote, between two members of the defendant did not constitute a formal statement of its reasons for denying the application but merely was the utterances of individual members of the defendant. See Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). We cannot conclude, as a matter of law, on the basis of the record before us that all of the members of the defendant would have approved the application but for the “no reasonable use” requirement. The previously cited colloquy does not approach the level of certainly required before this court will order a board or agency to take a particular action. Accordingly, we decline the plaintiffs’ request to order the defendant to grant the application for a variance.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       In January, 2000, § 195-80 B was codified in a new section ol' the Derby zoning regulations, specifically, article VI, § 25.25 (I) (2). In its memorandum of decision, the court referred to § 195-80 B.

       We therefore do not reach the plaintiffs’ second claim on appeal.

       Section 25.25 (I) (2) of the Derby zoning regulations provides in relevant part that the defendant has the power to “[gjrant variances from the strict application of these regulations when, by reason of exceptional narrowness, shallowness, shape or substantial size of a specific parcel of property, the strict applications of these regulations . . . would result in unusual difficulty or unreasonable hardship upon the owner of said property; provided that such relief or variance can be granted without substantial impairment of the intent, purpose, and integrity of these regulations. Uses not permitted as of right in any particular zoning district shall not be permitted in that particular zoning district by variance. Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be a finding by the [defendant] that all of the following conditions exist: (J) That if the owner complied with the provisions of these regulations, he would not be able to make any reasonable use of his property. (2) That the difficulties or hardship are peculiar to the property in question, in contrast with those of other properties in the same district. (3) That the hardship was not the result of the applicant’s own action. (4) That the hardship is not merely financial or pecuniary.” (Emphasis added.)

       The defendant, without any analysis, casually suggests that the plaintiffs lacked standing to challenge the Derby zoning regulation. Our Supreme Court has stated: “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue. . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests. . . .
      “Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).
      As a result of § 25.25 (I) (2), the plaintiffs clearly have suffered an injury to a recognized legal right, namely, the restriction on the use of their property. We therefore fail to understand the defendant’s argument, set forth in a solitary paragraph in its brief, that the plaintiffs failed to establish that they have standing to challenge the regulation. We conclude that it is without merit.

       “[I]t is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court [has] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons .... We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.” (Internal quotation marks omitted.) Sciortino v. Zoning Board of Appeals,
        87 Conn. App. 143, 146-47, 866 A.2d 645 (2005); Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 228-29, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003).

       The defendant argues that it is free to consider whether the regulations deprive a property owner of any reasonable use. We agree with that proposition. The fatal flaw with § 25.25 (I) (2) is that if the property has any other reasonable use, the defendant is prohibited from granting the variance without consideration of other factors. It is more than an invitation to simply consider whether other reasonable uses are available; it serves as a inflexible constraint on the power of the defendant to grant a variance.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. THOMAS H.

    (AC 26693)
    McLachlan, Lavine and Peters, Js.

      Argued February 20
    officially released May 22, 2007

      Joaquina Borges King, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and CaraEschuk, supervisory assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PETERS, J.

In this criminal appeal, the defendant challenges his conviction for his physical and sexual abuse of his minor daughter. His principal claims of error contest the sufficiency of the evidence and the validity of the trial court’s evidentiary rulings under General Statutes § 54-86f, the rape shield statute. We conclude that each of his claims is untenable and affirm the judgment of the trial court.

In a four count amended substitute information, the state charged the defendant, Thomas H., with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The alleged victim was his daughter, and the alleged time of abuse was the period between August, 1997, and May, 2000, when she was between eight and twelve years of age. The defendant entered pleas of not guilty on each count. After a jury trial, the defendant was convicted as charged and sentenced to the custody of the commissioner of correction for a total effective term of forty-five years, execution suspended after thirty-five years and five years probation. The defendant has appealed.

By way of background, the jury reasonably could have found the following facts, which were undisputed. Between August, 1997, and May, 2000, the defendant and his four daughters lived together in a condominium. The victim and her twin sister were the defendant’s oldest children. The children’s mother had left the family shortly after the birth of the youngest daughter.

As a result of complaints by neighbors about the squalid physical condition of the defendant’s condominium, the children came to live with their grandmother in May, 2000. In August of that year, because the grandmother found herself unable to continue to care for them, she relinquished custody to the commissioner of the department of children and families. The department placed the victim in a series of foster homes and ultimately in a so-called safe house. During this time, the victim was treated by two therapists, Susan Gagnon and Noel Federle. The victim told each of these two women and her grandmother that the defendant had assaulted her both physically and sexually. Further facts will be described as they become relevant.

I

SUFFICIENCY OF THE EVIDENCE

Because it would be dispositive of the charges against him if it were accepted, we consider first the defendant’s contention that the state adduced insufficient evidence to support his conviction. At trial, the defendant moved for judgment of acquittal on all counts at the end of the state’s case and at the announcement of the jury’s verdict of guilty. His central claim is that the testimony of the victim was too imprecise to support his conviction. We are unpersuaded.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. McMahon, 257 Conn. 544, 566-67, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002).

The victim, who was fourteen at the time of trial, was the crucial witness against the defendant on each of the charges of which he was convicted. During trial, the defendant introduced the victim’s prior statement to the police in which she had stated that the defendant repeatedly fondled her body when she was a small child. The victim also testified at trial about the defendant’s physical and sexual assaults as she became older. Con-cededly, the victim’s credibility was an issue for the jury to decide.

The defendant challenges his conviction on the grounds that (1) the time frame of the defendant’s alleged misconduct was not sufficiently established, (2) the victim’s conduct during the alleged time frame did not manifest any outward discomfort on her part and (3) the victim denied having been assaulted when the defendant took her to be examined by a physician because of a bloodstain on her underwear. We are not persuaded. The juiy reasonably might have found that the victim was too young to describe her early abuse with precision and too overwhelmed to complain of the defendant’s conduct until she was in a safe environment outside his control. See State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116 (“[t]his court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible”), cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988). In context, the evidence adduced by the state was sufficient to sustain the jury’s verdict.

II

EVIDENTIARY RULINGS BY THE TRIAL COURT

The defendant claims that he is entitled to a new trial because the trial court made two improper evidentiary rulings. One of these rulings concerns the court’s limitation of the defendant’s cross-examination of the victim with respect to his prior uncharged misconduct. The other concerns the court’s ruling permitting the victim to give a written answer to one question during her direct examination by the state. The defendant maintains that these rulings constituted an abuse of the trial court’s discretion under § 54-86L 6The defendant agrees, however, that, as with other evidentiary claims of error, our standard of review is whether the court’s ruling was an abuse of the court’s discretion. See State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005).

The defendant’s first evidentiary claim arises out of the victim’s testimony about a conversation with her grandmother in which the victim alluded to an event of sexual abuse by the defendant on the victim and on her cousin by her uncle. Throughout a good deal of the trial, the evidence was unclear whether the victim was describing a dream or her memory of an actual occurrence in 1992. The defendant complains that he was not permitted to test the victim’s credibility by questioning her about all the circumstances of these sexual assaults, which, if they occurred, substantially preceded the time frame of the present information.

On the record in this case, we need not decide the propriety of the trial court’s initial ruling precluding some of the defendant’s questioning of the victim. As the state points out, the defendant himself subsequently called both the grandmother and the victim to testify in his defense. Their further testimony not only supported the accuracy of the victim’s description of her recollection of what she told her grandmother, but gave the defendant a full opportunity to test her credibility further. The defendant has failed to identify any relevant evidence on this issue that he ultimately was unable to elicit. We conclude, therefore, that his eviden-tiary claim cannot be sustained.

The defendant’s second evidentiary claim is that the trial court abused its discretion and deprived him of his right of confrontation by permitting the victim to provide a written answer to one question. During the state’s direct examination of the victim, she described the circumstances of one of the defendant’s sexual assaults on her. She testified that, angered by his neighbors’ criticism of his maintenance of his condominium unit, the defendant had ordered her to get into his bed with him. The prosecutor then asked “What happened then?” Although the court urged the victim to answer this question, she was unwilling to do so. The court then allowed her to describe, in writing, the details of his assault upon her and she did so. Her handwritten reply became an exhibit in this case.

At trial, the defendant’s objection was limited to his expressed concern that the victim should not be allowed to write additional responses to counsel’s questions. The record discloses no further written answers by the victim to any questions asked by either counsel at any time during this lengthy trial.

On appeal, the defendant argues, for the first time, that the single written reply permitted by the trial court entitles him to a new trial because the court’s ruling violated his federal constitutional right to confront the witnesses against him. We agree with the state that it is difficult to visualize a confrontation claim under the circumstances of this case, in which the underlying colloquy and the writing of the response occurred in the presence of the defendant and in which the opportunity to cross-examine the victim as to this written response was provided. Furthermore, under our case law, the defendant waived this claim by raising a different objection at trial. See State v. Coltherst, 263 Conn. 478, 510, 820 A.2d 1024 (2003).

In sum, looking at the record as a whole, we are persuaded that the defendant had the requisite opportunity to bring to the jury’s attention all the issues that he sought to raise about the victim’s credibility. He was not prejudiced by the court’s ruling permitting her to respond to one highly sensitive question in writing. We conclude, therefore, that the trial court’s evidentiary rulings in this case complied fully with the governing statutory and constitutional standards.

Ill

PROSECUTORIAL IMPROPRIETY

The defendant’s third argument for reversal is his claim that the prosecutor, in her closing argument, engaged in prosecutorial impropriety that deprived the defendant of his constitutional rights to due process and a fair trial. He maintains that it was improper for the prosecutor to refer to the victim’s recollection of the 1992 incident as a “flashback” because the charges against him were limited to events taking place between 1997 and 2000. Although the defendant did not object to the prosecutor’s comment when it was made, and did not ask the court for a corrective instruction, he now maintains that the prosecutor’s comment was so prejudicial that he is entitled to a new trial. We are not persuaded.

The principles that govern our review of claims of prosecutorial impropriety are well established. This review involves a two step analytical process. “The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. ... In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court . . . has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . . Although unpreserved claims of prosecutorial [impropreity] are reviewable under [State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] ... we continue to adhere to the well established maxim that defense counsel’s failure to object to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. . . . Accordingly, we emphasize that counsel’s failure to object at trial, while not by itself fatal to a defendant’s claim, frequently will indicate on appellate review that the challenged comments do not rise to the magnitude of constitutional error.” (Citations omitted; internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 798-800, 911 A.2d 1099 (2007).

It is understandable why the defendant did not object to the prosecutor’s comment at trial in this case because the prosecutor previously had asked for guidance from the court about how she should address the ambiguity in the record about whether the victim’s conversation with her grandmother concerned a dream or an actual event. The defendant did not object to the court’s suggestion to refer to the dream as a flashback, perhaps because the court coupled it with its representation that, in its charge to the jurors, it would “make it clear to them that any finding of guilty has to be premised on events that took place between August, 1997, and May, 2000.” The court gave such a charge.

In the defendant’s reply brief, he disputes the accuracy of the state’s description of what transpired at trial and maintains that the prosecutor’s argument in fact contravened the instructions of the court. He has, however, failed to support this argument with references to the relevant transcript pages.

On this state of the record, we are not persuaded that the single comment by the prosecutor can properly be characterized as an impropriety. Even if it were, we are persuaded that it was not prejudicial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant subsequently agreed to the termination of his parental rights with respect to all four children.

       The victim testified with precision that the final sexual assault occurred immediately after a condominium association meeting concerning the deplorable physical condition of the defendant’s condominium. The proximity of that event to the children’s removal to the home of their grandmother made it easy to verify the victim’s report of the timing of that assault. In light of the accuracy of that report, the jury reasonably might have credited the victim’s testimony about when the defendant’s other assaults occurred.

       Her credibility was enhanced by evidence that her testimony of the misconduct of her uncle was confirmed by his plea of guilty for assaulting his daughter, the victim’s cousin.

       Although the defendant also alludes to a possible violation of his state constitutional rights, he has failed to provide any support for such an argument in his brief.

       In response to questioning on direct examination by the defendant, the grandmother testified that the victim had told her that her father and her uncle had taken the victim and her cousin into a wooded area where they had sexually assaulted them. She further testified that the uncle had been convicted of assault in the second degree in connection with this incident.

       In response to direct examination by the defendant, the victim denied any confusion about her testimony about the defendant’s misconduct during the period covered by the information and her conversation with her grandmother about the earlier sexual encounters involving her father and her uncle. On cross-examination, she amplified, characterizing her conversation about this earlier incident as, “I had a dream and I went and told [my grandmother].” She further testified that “the dream” was “completely separate” from what her father had done to her while she and her sisters were living with him at the condominium.

       In State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007), our Supreme Court determined that “the term ‘prosecutorial impropriety’ ... is more appropriate than the traditional term of ‘prosecutorial misconduct’ . . . .” (Citation omitted.)

       Although the defendant cites article first, § 8, of the constitution of Connecticut in support of this claim, he provides no reasoned discussion of its applicability. Accordingly, we decline to review this claim.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. NA'IM B.

    (AC 26569)
    Flynn, C. J., and Rogers and Stoughton, Js.
    Argued February 6
    officially released May 22, 2007

      Paul W. Summers, assistant public defender, with whom was James B. Streeto, assistant public defender, for the appellant (defendant).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

STOUGHTON, J.

The defendant, Na’im B., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (l). He was charged specifically with having delayed seeking medical attention for the victim after the child had been injured. The defendant principally claims that the state produced insufficient evidence from which the jury could conclude, beyond a reasonable doubt, that he had committed the crime of risk of injury to a child. Specifically, the defendant argues that the state produced insufficient evidence to prove when he became aware of the child’s injury and that he unreasonably delayed seeking medical attention after becoming aware of the injury. We agree.

The jury reasonably could have found the following facts. The four month old victim’s hand was severely burned by a hair straightener, or flatiron, either on the night of January 12 or the early morning of January 13, 2003. The victim suffered third degree bums, and the presence of bums on the palm and back of the hand suggested that the iron had been opened and placed around the victim’s hand. The victim’s mother had left the home at 11:30 p.m. to attend a friend’s birthday party. The victim and the victim’s two older brothers, ages six and three, were left at the home under the supervision of the defendant, who was also the victim’s father. Prior to departing, the mother used the hair straightener. The straightener had no on or off switch but needed to be unplugged when not in use. The mother testified that she had forgotten to unplug the iron and instead left it plugged in on the bathroom’s windowsill. When the mother left at 11:30 p.m., the victim was uninjured. The mother returned to the home at 1:15 in the morning of January 13, 2003. She went to bed between 3 and 3:30 a.m. When the mother entered the bedroom, the victim and the defendant were already asleep on the bed. Sometime later, one of the mother’s older children climbed into the bed, accidentally lying on the victim. The victim awoke and began crying. The defendant tried to feed the victim. Not able to quiet the victim with food, the defendant left the bedroom to get a diaper. At that point, the mother noticed that the victim’s hand felt strange. There was no light in the bedroom at the time. The mother carried the victim to the bathroom in order to inspect his hand under the light and realized that it was swollen. The defendant entered the bathroom and noticed that the victim’s hand was blistered. The mother returned to the bedroom and called 911 on the bedroom telephone, shortly before 4 a.m.

The state alleged, in its first count, that the defendant “on or about January 13, 2003, at or near . . . Hartford, Connecticut . . . delayed seeking medical attention for [the victim].”

At trial, the state’s expert witness testified that blistering, as seen on the victim’s hand when the victim was admitted to a hospital, would develop between ten and thirty minutes after the bum was inflicted. The state’s expert also testified that a baby would have “screamed bloody murder” at the time of such a bum and would continue to scream until the pain subsided or he screamed himself to sleep, a process that could last between three and fifteen minutes. The mother testified that she did not hear the victim scream until he awoke a little before 4 o’clock that morning.

The jury found the defendant guilty of violating § 53-21 (a) (1), risk of injury to a child, by wilfully failing to seek medical attention promptly to address the victim’s severe bum. Judgment was rendered on the verdict, and the defendant appeals.

The defendant’s primary claim is that the state failed to produce sufficient evidence to prove each element of § 53-21 (a) (l) beyond a reasonable doubt and that he is entitled to an acquittal.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 110, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).

Section 53-21 reaches “two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. ... [A] failure to act when one is under a duty to do so, thereby permitting ... a dangerous situation to exist, may be sufficient to support a conviction under this statute.” (Citations omitted; internal quotation marks omitted.) Id., 117. When the state charges the defendant with a failure to act, the state must show that the defendant reasonably knew of the dangerous situation facing the victim and delayed taking appropriate measures to address the danger. See id.

In determining this issue, we are guided by State v. Dumlao, 3 Conn. App. 607, 491 A.2d 404 (1985), cited by both parties in their briefs. In Dumlao, the two year old victim suffered from battered child syndrome. Id., 608-609. The defendant father, who was not found to have perpetrated the battery, testified that he worked two jobs. Id., 615. His primary argument was that the state did not sufficiently prove that he knew the child was injured because he was at work at the relevant times. Id. The state produced evidence that the batteiy continued for at least one week. Id. The father lived with the victim, and the child’s injuries were severe and plainly visible. Id. From this, the jury could have concluded that the father would have seen the child at some point over the course of the week of the ongoing battery and would have learned that the child was severely injured. Id.

The defendant here argues that the state did not produce sufficient evidence to prove that he knew of the victim’s injury at any time before the mother notified him, just prior to calling 911. The state argues that the jury reasonably could have concluded that the defendant learned of the victim’s injury at some point between 11:30 p.m. and 1:15 a.m. The state’s theory is as follows. First, it is undisputed that the victim was uninjured when the mother left the home at 11:30 p.m. From this, the jury could conclude that the victim was injured after 11:30 p.m. Second, the mother testified that she did not hear the victim scream after she returned to the home at 1:15 a.m. From this, the state argues, the jury could conclude that the victim was not injured after 1:15 a.m. Thus, the state concludes, the victim must have been injured between 11:30 p.m. and 1:15 a.m. Third, the state notes that the victim was under the supervision of the defendant between the time the mother departed at 11:30 p.m. and the time when she returned at 1:15. a.m. Fourth, the state relies heavily on the expert testimony that a baby will “scream bloody murder” when burned. From this, the state then argues that the victim must have screamed in pain and that the defendant must have heard the victim and known that the victim was injured.

The first weakness in the state’s production of evidence is that, unlike in Dumlao, there is no evidence as to how old the injury was at the time the mother called 911. The state’s expert witnesses testified only that it would take between ten and thirty minutes for blisters to form from the type of bum suffered by the victim. Although there was some testimony that the appearance of bum wounds change over time, there was no testimony about how long the changes take and how long a bum wound would typically appear as it did when the victim was brought to the hospital. None of the state’s witnesses testified about the likely time of the bum. The jury had no direct evidence from which to determine whether medical attention to the wound was delayed at all.

The state also produced no evidence that the defendant knew of the injury before the time the mother called 911. The state’s argument that if the victim were injured between 11:30 p.m. and 1:15 a.m., he likely would have cried loudly, and the defendant probably would have heard it and, therefore, probably would have known that the victim suffered a severe injury, is too speculative to support a finding of guilt beyond a reasonable doubt.

The judgment of conviction of risk of injury to a child is reversed and the case is remanded with direction to render judgment of not guilty of that charge.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of a second count of risk of injury to a child, pursuant to General Statutes § 53-21 (a) (1), and of assault in the first degree, pursuant to General Statutes § 53a-59 (a) (1).

       Because our resolution of the defendant’s sufficiency of the evidence claim is dispositive, we need not address his other claims.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully . . . permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered . . . shall be guilty of a class C felony . . . .”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. CASMIER ZUBROWSKI
    (AC 28045)
    Flynn, C. J., and Bishop and McLachlan, Js.

      Argued February 8
    officially released May 22, 2007

      Daniel J. Krisch, special public defender, with whom -was Kenneth J. Bartschi, for the appellant (defendant).

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

BISHOP, J.

The defendant, Casmier Zubrowski, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress statements he made to police, (2) instructed the jury as to the effects of medication and alcohol on his ability to form the specific intent to kill and (3) admitted evidence of prior misconduct. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our discussion of the issues on appeal. On January 1, 2002, the defendant and his wife, the victim, lived in a condominium complex in Bristol. At approximately 7 or 8 p.m., on December 31, 2001, the defendant invited his brother, Bruno Zubrowski, who lived in the same complex, to celebrate New Year’s Eve with them at their condominium. During the evening, the brothers and the victim consumed substantial amounts of alcohol, including beer, vodka and schnapps. The defendant consumed most of the vodka and also drank one to two beers. At approximately 10 p.m., an argument ensued concerning the cause of a hole in the drywall in the defendant’s home. Feeling uncomfortable with this argument, Bruno Zubrowski decided to return to his own condominium. The defendant accompanied his brother back to his condominium where he “picked up a couple of beers” after which he returned home.

At 12:53 a.m., Officer Albert Myers, a dispatcher for the Bristol police department, received a 911 call from the defendant, who told the officer that his wife was dead, that she had slashed her throat and that she was not breathing. After Myers advised the defendant that assistance would be sent promptly, the defendant stated, “immediately, I mean, this—this may not be half an hour ago. I was upstairs, you know. I don’t—the blood is all over.” Although the call was terminated abruptly, Myers called back and asked what had happened. The defendant again requested assistance, stating that he thought his wife was dead. Also, in response to Myers’ questions, the defendant reiterated that he did not know what had happened, that he and his wife had gotten into an argument and that his wife said that she was going to slash her throat. The defendant also stated that he had gone upstairs and then had returned downstairs, and “there was blood all over.”

Officers Lawrence DeSimone and Thomas Grimaldi responded to the 911 call, arriving at the defendant’s home while he was still talking on the telephone with Myers. When the officers knocked on the door, the defendant responded, clad only in white, blood spattered briefs. He told the officers that “his wife had cut her throat and she was dead.” The officers and the defendant then walked to the kitchen where the victim was lying motionless on her back on the floor with a substantial amount of blood spread about the kitchen area. The officers also noted that the victim had lacerations about her throat and face and that a knife lay adjacent to her. Faced with this scene, Grimaldi asked DeSimone to take the defendant into the living room.

Once DeSimone escorted the defendant into the living room, he had the defendant sit down and he asked him, “what happened?” The defendant stated that when he arrived home from work, he had found his brother and his wife drinking and that his brother had left shortly after he arrived. He told DeSimone that he and his wife argued about a hole in the drywall at the base of the stairwell and that she said she was going to cut her throat. The defendant stated that because she had made the same threat before, he did not take it seriously and went to bed. He further stated that one hour later, while he was upstairs, he heard a loud crash and called out and heard no answer. He then went downstairs where he found his wife lying on the kitchen floor. He tinned her over and attempted to resuscitate her and then ran to his brother’s condominium. Getting no response from his brother, he returned home and called the police.

From the house, DeSimone and Grimaldi called Detective Kevin Hayes to investigate. After introducing himself to the defendant, Hayes asked the defendant to come to the police station and make a statement. At that juncture and unprovoked by any questioning from Hayes, the defendant told him that “she killed herself, you know, she cut her throat, you know,” which, in essence, was the same information he had disclosed to the 911 dispatcher and DeSimone. The defendant agreed to accompany Hayes to the police station where he made a written statement, the contents of which were similar to the version of events that he had given to the police at his home.

The defendant subsequently was charged with murder in violation of § 53a-54a. After the jury found the defendant guilty, he was sentenced to a total effective term of imprisonment of thirty-five years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress incriminating statements he made to the police. Specifically, he argues that the statements he made in his living room after DeSimone asked him, “what happened?” were not properly admissible at trial because they were made in response to custodial interrogation and without the benefit of Miranda warnings. The state contends that even if it was error to admit the defendant’s statements at trial because they were taken in violation of Miranda, that error was harmless. We agree with the state.

“Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation.” State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986).

“The defendant bears the burden of proving that he was in custody for Miranda purposes. . . . Two discrete inquiries are essential to determine custody: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . The first inquiry is factual, and we will not overturn the trial court’s determination of the historical circumstances surrounding the defendant’s interrogation unless it is clearly erroneous. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo. . . . [T]he term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Citations omitted; internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 584-85, 916 A.2d 767 (2007).

Although we note that the factual circumstances in this instance present a close question as to whether the defendant was subjected to custodial interrogation, even if we assume arguendo that he was and, thus, that Miranda warnings were required, our review of the record reveals that the admission of his statements into evidence, even if erroneous, was harmless beyond a reasonable doubt.

“The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent.” (Internal quotation marks omitted.) State v. Camacho, 92 Conn. App. 271, 283, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006). “In order to assess the harmfulness of the error, the test is whether there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. . . . The harmfulness of an error depends upon its impact on the trier and the result .... As the United States Supreme Court said in Chapman v. California [386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)], before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. This court has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Hoeplinger, 206 Conn. 278, 294-95, 537 A.2d 1010 (1988). “The proper standard [therefore] is whether any reasonable jury would have found the defendant guilty if the improperly admitted evidence had been excluded.” (Emphasis in original.) Id., 296.

In the present case, there was overwhelming evidence of the defendant’s guilt independent of the statements he made in his home in response to DeSimone’s question. At trial, Detective Nicholas Zabetta described his investigation of the crime scene and stated that there was clear evidence of a struggle that began in the kitchen. The condition of the body indicated to him that the victim had been struck with a blunt object and was stabbed multiple times while she was lying on the floor by an assailant who was bending over and almost parallel to the victim. He also observed that there were several injuries to her neck, right cheek and chest, that a tooth was dislodged from her mouth and that her sweatshirt had been ripped with great force all the way to the waistline. The detective followed the trail of blood and bloody footprints in and out of the bathroom on the first floor, and he determined that the size of the footprints matched the defendant’s foot size. The detective also observed a set of bloody footprints leading upstairs to the defendant’s bedroom and found blood on the sheets and underside of a comforter. The defendant’s T-shirts, stored in his closet, were the same style as the ones found blood soaked under the victim’s body. The detective also used a blood enhancement agent that disclosed more defined areas of blood in the vicinity of the victim’s body. This process also revealed attempts to clean or to alter the crime scene. The detective also testified that typically relatives or acquaintances of the victims, not strangers, will attempt to clean a murder scene. Finally, Zabetta’s investigation revealed no sign of forced entry or any disturbance outside of the kitchen, and he noted that no valuables were missing from the home.

Grimaldi also testified. He stated that he noticed a bottle of carpet cleaner between the living room and the kitchen and blood around the sink area. As he inspected the victim, he noticed coagulated blood and dried blood in the outer region of the victim’s ear. He stated that he found this to be unusual, as, from his experience, he knew that it takes longer than fifteen to twenty minutes for blood to congeal. To Grimaldi, this finding was noteworthy because the defendant had said that when he heard the “thud,” he came down and almost immediately called the police.

Ira Kanfer of the state medical examiner’s office concluded, on the basis of the blunt force trauma to her face, that the victim had been struck twice by an object and that the blows were hard enough to knock her unconscious. The square shaped blunt force wounds to the victim were consistent with the shape of the candlestick holder found on the floor. He determined that the victim’s death occurred within two minutes of the blows from a sharp instrument, most likely from the knife that was found on the floor next to her head. The medical examiner determined that she had been stabbed while on her back and that the weapon had cut the victim’s esophagus, trachea, and carotid and subclavian arteries. The victim also had stab wounds to the neck, face and area above the right breast. Blood samples from the scene were analyzed by the state forensic laboratory, and the DNA found on defendant’s underwear', college ring, watch, legs, bedsheets and comforter and on the knife and the first floor bathroom counter were consistent with the victim’s DNA.

Finally, because of the location and number of wounds, the victim’s death was classified as a homicide rather than a suicide. Kanfer stated that the injuries were not consistent with a suicide because instead of one or two strikes, with perhaps a hesitation strike more typical of a suicide, the victim’s wounds were distributed all over the victim’s body. In addition, the medical examiner stated that the evidence of blunt trauma to the left side of the victim’s face was inconsistent with the notion that her wounds were self-inflicted.

In addition to the strength of this evidence, the admission into evidence of the defendant’s statements to DeSimone were harmless because he made substantially similar statements in his 911 call, to Hayes at the scene and to his daughter after his arrest. All of these statements were admitted without objection. Thus, the defendant’s statements to DeSimone were merely cumulative. See State v. Pugh, 45 Conn. App. 261, 267, 696 A.2d 354 (court concluded admission of challenged statements harmless error because “the defendant’s statements were merely cumulative of other testimony”), cert. denied, 242 Conn. 910, 697 A.2d 368 (1997).

There was no question concerning the admissibility of the 911 call, which the jury heard and which, in substance, conveyed the same information as the challenged statements. In his 911 call, the defendant stated that his wife was dead, that she had slashed her throat and that he had been upstairs and did not know what had happened. He made a similar statement to Hayes unprovoked by any questioning from Hayes when Hayes asked him to accompany him to the police station. Thus, similar to the statement made to the 911 dispatcher, the statement to Hayes was spontaneous and voluntary, and it was not challenged at trial. Last, Beata Zubrowski, the defendant’s daughter, testified that on the day after the murder, the defendant telephoned her and asked her to come to his condominium because, as he explained, “[The victim] went crazy, there are cops all over here, [the victim] is dead. She must have killed herself because I went downstairs in my underwear at 2 a.m., and there was blood everywhere.” Again, this statement was admitted without challenge at trial. Thus, even if the statements made by the defendant to DeSimone were the product of a custodial interrogation, their admission into evidence was harmless beyond a reasonable doubt because substantially similar statements made by the defendant to the 911 dispatcher, to Hayes and to the defendant’s daughter were admitted without objection and because the evidence of the defendant’s culpability, apart from his statement to DeSimone, was exceedingly strong.

II

Next, the defendant claims that the court improperly charged the jury on intoxication. Specifically, the defendant argues that the court improperly denied his request to instruct the jury that the prescription medication he was taking, may have, by itself, rendered him intoxicated and incapable of forming the specific intent to kill. We are unpersuaded.

Following the close of evidence and after the defendant had submitted a request to charge on intoxication, the court instructed the jury as follows: “Now, there’s one other matter bearing upon the question of whether the accused had the specific intent to kill required for a conviction of murder. There has been some testimony to the effect that [the defendant] was under the influence of an intoxicant, namely, alcohol, at the time of the alleged acts which caused the death of [the victim]. ... If you find that the accused was under the influence of an intoxicant at the time of the alleged acts, you must then determine what effect, if any, this voluntary intoxication had on his ability to form the specific intent required to commit . . . murder .... Note that intoxication is not a defense to or an excuse for the commission of a crime. It is only relevant to negate an element of the crime charged such as the intent to kill required here for a conviction of murder.” The defendant, however, took exception and asked the court to recharge the jury, and specifically requested that the court include in its instructions that “the mere taking of medication is sufficient to establish the intoxication defense . . . .”

In response to the defendant’s request, the court stated: “I thought the doctor’s—I thought the only evidence—well, not the only evidence—but I thought the principal evidence from Dr. [David Krulee, the forensic psychiatrist who evaluated the defendant] was that he was intoxicated as a result of alcohol, the effects of which had been exacerbated by the medication. I didn’t understand the testimony to be that he was under the influence of medication.” The court then reviewed its notes and stated that the testimony of Krulee was that the prescription medications can produce a sedative effect like alcohol and can increase the effects of alcohol and make the defendant more intoxicated than usual. The court also pointed out to counsel that although there was testimony that the defendant was taking prescription medication, “[t]here’s no evidence that he was taking it that day or while he was drinking. . . . [And] I don’t find any evidence and I don’t recall any and I don’t see any in my notes in which anybody, including Dr. Krulee, opined that the intoxication was as a result of taking medication. I think the intoxication, if it existed, was as a result of drinking alcohol, the effects of which the doctor felt could have been exacerbated by the medications that he was taking. So, I’m willing, if you want me to, I’m willing to make reference to, you know, where I talk about testimony, to the effect, I’m willing to expand that into some reference to medications he was taking, but I don’t think . . . there’s any testimony [that] he could have been intoxicated from those medications [alone].”

Subsequently, the court further instructed the jury as follows: “Just one clarification of something I mentioned to you in the charge, and I would just want to call your attention to that part of the charge that dealt with intoxication. That matter bears on the question of whether the accused had the specific intent to kill required for a conviction of the crime of murder. And what I said to you then is [that] there has been some testimony to the effect that he was under the influence of an intoxicant, namely, alcohol at the time of the alleged acts which caused the death of Zenobia Zubrowski.

“And what I want to add to that is that there was also some testimony that the intoxicating effects of the alcohol may have been increased as a result of certain prescription medication prescribed for the defendant, which I did not mention in my previous instruction to you. That’s the only clarification that I consider needs to be made to you.”

The defendant argues that the court’s supplemental instruction was improper because it did not state specifically that prescription medication alone could have had an intoxicating effect on him that could have negated the specific intent to kill. We are unpersuaded.

Our analysis begins with a well established standard of review. “When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jmy is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A. 2d 161 (1995).

Our review of the record reveals that the instructions were consistent with the trial evidence and that the instructions permitted the jury to consider the effects of both alcohol and prescription medication on the defendant’s ability to formulate the specific intent to kill. After the defendant’s exception to the charge, the court reviewed its notes and commented to counsel that the defendant’s expert, Krulee, had not focused on the effects of the prescription medication alone but, rather, had given testimony regarding the effects of a combination of alcohol with medication. In fact, the court observed, there had been considerable evidence concerning the defendant’s chronic alcohol consumption, including the amount he had consumed on the night in question. A review of the record supports the court’s conclusion that, in his testimony, Krulee did not consider the possibility that the defendant had taken only medication that night. Thus, the evidence adduced at trial does not support the defendant’s claim of entitlement to a charge focused separately on the effects of medication. Accordingly, the jury charge fairly presented the case to the jury, providing it with sufficient guidance to reach a verdict.

Ill

The defendant’s final claim is that the court abused its discretion by permitting the state to introduce prior uncharged misconduct evidence through Beata Zubrowski. Acknowledging that the evidence was relevant, the defendant’s sole argument on this issue is that the prejudicial impact of this evidence outweighed its probative value. We disagree and conclude that the evidence was probative and not unduly prejudicial and, thus, admissible pursuant to § 4-5 (b) of the Connecticut Code of Evidence and pertinent case law on the issues of intent and motive.

The following additional facts and procedural history are relevant. On the first day of trial, and outside the jury’s presence, the state indicated its intention to elicit testimony from Beata Zubrowski regarding several incidents of abusive conduct involving the defendant and the victim. The defendant objected, arguing that it was propensity evidence and that it was more prejudicial than probative. The court ruled that the evidence was relevant for the purpose of showing intent, identity and motive and that the probative value of this evidence outweighed its prejudicial effect. The court also stated that it would give the jury a cautionary instruction both before Beata Zubrowski testified and in its final instructions.

Subsequently, when Beata Zubrowski testified, she described a specific incident at a picnic in which the defendant “spoke in a very commanding voice, and if [the victim] didn’t listen, he would pull on her or push her or either any portion he could grab, arm, hair, whatever.” She further testified that at this picnic, she witnessed the defendant pull the victim’s hair “four or five times” hard enough to cause her to fall. Moreover, she stated that this had not been an isolated incident and that the defendant treated the victim “with disrespect” and was verbally abusive to her “most of the time” and had been physically abusive to the victim on a number of other occasions. The following day, before the jury heard additional testimony, the court gave an extensive limiting instruction, admonishing the jury that it could use the testimony of the defendant’s past behavior only as to the identity of the perpetrator, intent and motive.

“A trial court’s ruling on the admissibility of evidence is entitled to great deference and will be overturned only if a clear abuse of the court’s discretion is shown and the defendant shows that the ruling caused substantial prejudice or injustice. An appellate tribunal is required to make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Thomas, 96 Conn. App. 578, 583-84, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006). Thus, the standard we employ to review this claim is whether the court abused its discretion in allowing this evidence of prior misconduct.

“[A]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . We have recognized exceptions to this general rule, however. Evidence of prior misconduct may be admissible . . . for other purposes, such as to prove knowledge, intent, motive, and common scheme or design .... Accordingly, [our Supreme Court has] established a two-pronged test for determining the admissibility of prior misconduct evidence. Such evidence is admissible if: (1) it is relevant and material to at least one of the circumstances encompassed by the exceptions; and (2) its probative value outweighs its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 390, 844 A.2d 810 (2004). Because the defendant concedes that the evidence of misconduct was relevant and material, we need only address whether the evidence was unduly prejudicial to him.

“[E]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The court bears the primary responsibility for conducting the balancing test to determine whether the probative value outweighs the prejudicial impact, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 91 Conn. App. 47, 64, 880 A.2d 910 (2005), cert. granted on other grounds, 279 Conn. 912, 903 A.2d 658 (2006).

As previously stated, the admitted evidence of prior misconduct was relevant to the issues of intent and motive, both key components of the state’s case. The defendant contends, nevertheless, that this prior misconduct evidence unnecessarily aroused the jurors’ emotions and hostility against him, and, thus, its prejudicial effect greatly outweighed its probative value.

Although some prejudice may flow naturally from prior misconduct evidence, the evidence offered in this instance was not of the sort that would shock the jury or inflame its passions, given the nature and extent of the crime scene evidence. “We previously have held that evidence of dissimilar acts is less likely to be prejudicial than evidence of similar or identical acts.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 398, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). Here, the evidentiary substantiation of the vicious conduct, with which the defendant was charged, far outweighed, in severity, the character of his prior misconduct. As noted, the prior misconduct at issue included instances of physical and verbal abuse against the victim; however, none of these assaults compared in scope with the brutality of the incident that took place on January 1, 2002, causing the victim’s death.

Moreover, the court minimized the potential prejudice to the defendant of the prior misconduct evidence by giving the jury detailed limiting instructions as to the role the evidence was to play in its deliberations, and the court repeated its admonition to the jury in its final instructions. “Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct.” (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 89, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). Furthermore, absent clear evidence to the contrary, a jury is presumed to have followed a court’s limiting instructions, which serve to lessen any prejudice resulting from the admission of such evidence. See State v. James G., supra, 268 Conn. 397-98.

We conclude that the court carefully and properly balanced the probative value of the evidence of the defendant’s prior abusive conduct toward the victim with its potential prejudicial impact. “The care with which the court weighed the evidence and devised measures for reducing its prejudicial effect militates against a finding of abuse of discretion.” State v. Erhardt, 90 Conn. App. 853, 862, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005). In this instance, having properly balanced the probative value of the prior misconduct evidence with its potentially prejudicial impact, and having carefully instructed the jury regarding this evidence, the court did not abuse its discretion in allowing the jury to hear testimony regarding the defendant’s prior misconduct directed toward the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       After he was found guilty, the defendant then admitted to a violation of probation in a separate matter, Docket No. CR-96-96261-S, arising out of a 1998 conviction for assault in the second degree. The court sentenced the defendant to thirty-five years incarceration for the murder conviction and five years incarceration for the violation of probation, concurrent to the murder sentence.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The state does not concede that the defendant was in custody or that the question, “what happened?” constituted an interrogation.

       The defendant’s treating physician testified that the defendant was taking a number of prescription medications, including Xanax, Percocet and Ambien, which, without the use of alcohol, can have a strong sedative effect impairing one’s physical and mental faculties. David Krulee, the forensic psychiatrist who evaluated the defendant, testified that both Xanax and Ambien can have a sedative effect similar to alcohol and will have a greater synergistic effect when combined with alcohol.

       Connecticut Code of Evidence § 4-5 (b) 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 court instructed the jury as follows: “There are also some specific limitations to the kind of testimony that . . . [Beata Zubrowski] gave you yesterday. There were some things you may use her testimony for, and there are some things you may not use her testimony for.
      “Let me start with what you may not use it for. You may not use it to decide that [the defendant] is a bad person, and, therefore, he must have committed this crime. You may not use it to determine that [the defendant] because he committed violence toward [the victim] on an earlier occasion, if you believe that testimony, that he must have committed violence on her on this occasion, which the state charges. You may not use that testimony for that purpose.”

       In his brief, the defendant states: “The defendant does not dispute that his daughter’s testimony may have had some marginal relevance on the issues of his intent and motive. However, the great prejudicial impact of her testimony outweighs its minimal probative value.”

       Identity was admitted by the defendant in closing argument.


text:
    RICARDO PEREIRA v. COMMISSIONER OF CORRECTION
    (AC 26796)
    Harper, Lavine and Peters, Js.
    Argued March 15
    officially released May 22, 2007

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

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PETERS, J.

A criminal defendant’s invocation of his constitutional right to counsel requires an unambiguous and unequivocal statement “that a reasonable police officer . . . would understand to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); State v. Anonymous, 240 Conn. 708, 716, 694 A.2d 766 (1997). The dispositive issue in this appeal from the denial of a petition for a writ of habeas corpus is whether evidence that, prior to his interrogation by the police, the petitioner had asked a family member to arrange for a lawyer for him, is sufficient to establish invocation of his right to counsel. The habeas court, after concluding that the petitioner had not established that he had been prejudiced by trial counsel’s failure to present such evidence, denied his petition insofar as he claimed ineffective assistance of counsel. The court also dismissed a second count in the petition, in which the petitioner alleged that his criminal conviction should be set aside because the petitioner had been denied access to counsel. The court subsequently denied the petitioner’s request for certification to appeal. We dismiss the petitioner’s appeal.

In an amended, two count petition for awritofhabeas corpus filed February 22, 2005, the petitioner, Ricardo Pereira, alleged that his conviction of murder in violation of General Statutes § 53a-54a and kidnapping in violation of General Statutes § 53a-92 (a) (2) (a) should be set aside because the police had failed to honor his constitutional right to counsel. In count one, the petitioner alleged that his trial counsel was ineffective in failing to present testimony from his mother and his sister that, before the initiation of his interrogation by the police, he had asked each of them to find counsel for him. In count two, he alleged that his conviction should be set aside because, in violation of his constitutional rights, he had been deprived of his right to counsel prior to police interrogation. The respondent, the commissioner of correction, denied the allegations in the first count and moved to dismiss the second count because the admissibility of the petitioner’s incrimina-toiy statements had been fully litigated at trial. The habeas court, after a hearing, agreed with the commissioner on both counts. The petitioner has appealed. Because we agree with the habeas court that, on the present record, the petitioner’s claims are unsustainable, we dismiss his appeal.

The facts underlying the defendant’s conviction are fully reported in State v. Pereira, 72 Conn. App. 545, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003). For present purposes, it is important to note that, in the course of affirming the judgment against him, this court reviewed the evidence relating to the admission of his inculpatory statements and held that the trial court “reasonably concluded that the defendant’s confession was voluntarily rendered.” Id., 581.

The linchpin of the petitioner’s appeal is that his inculpatory statements should have been excluded at trial because he properly invoked his constitutional right of access to counsel by asking his mother and his sister to get counsel for him. To assess the doctrinal implications of this claim, we first must ascertain to what extent it has a factual predicate in the record.

The habeas court made the following factual findings with respect to the petitioner’s claim of denial of access to counsel. “The petitioner, his mother and his sister all went to the police station where the petitioner was to be interviewed. Upon arrival at the station, the petitioner and his mother and sister were placed in separate rooms. Just before they parted, the petitioner asked his sister to call his uncle and arrange for a lawyer for him.” The court thereafter denied the petition stating: “[E]ven if the petitioner wished to be represented by counsel while being questioned by the police, this fact was never communicated to the officers. Moreover, the petitioner clearly and unequivocally waived his rights to counsel several times before giving the statement. The addition of facts that would support a desire for representation, unexpressed to the police but communicated in secret to his sister, would not have changed the reasoning used by [the trial judge] or the Appellate Court [in concluding that he had waived his right to counsel].” Significantly, the petitioner has not briefed a claim that any of these findings was clearly erroneous.

On this record, the issues that the petitioner seeks to raise in this appeal are not debatable among jurists of reason and do not warrant appellate review. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). Without a finding that the police were aware, or should have been aware, of the petitioner’s request to consult counsel, the habeas court properly concluded that there was no constitutional reason why the police could not have relied on the petitioner’s waiver of his Miranda rights in questioning him about his conduct. There was, therefore, neither evidence of ineffectiveness of counsel nor a basis for revisiting the merits of the prior decision denying the motion to suppress the petitioner’s incriminatory statements. Accordingly, the habeas court properly denied the petitioner’s request for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Although, at oral argument in this court, petitioner’s counsel claimed that police officers were standing nearby when the petitioner asked his sister to get counsel for him, the habeas court made no such finding. As best we can tell, the court was not asked to make such a finding. We need not decide, therefore, whether overhearing a private conversation would satisfy the requirement that a request for counsel should be clearly and unequivocally communicated to the police.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


author: PER CURIAM.

text:
    COMMISSIONER OF TRANSPORTATION v. BAKERY PLACE LIMITED PARTNERSHIP ET AL.
    (AC 27218)
    Gruendel, Lavine and Peters, Js.
    Argued February 23
    officially released May 29, 2007

      Michael P. Barry, for the appellant (named defendant).

      Drew S. Graham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This condemnation action returns to us following a remand to the trial court. See Commissioner of Transportation v. Bakery Place Ltd. Partnership, 83 Conn. App. 343, 849 A.2d 896 (2004). In this appeal, the defendant Bakery Place Limited Partnership challenges the court’s award of $1 in damages as just compensation for the taking of certain real property in New Britain. We affirm the judgment of the trial court.

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 Commissioner of Transportation v. Bakery Place Ltd. Partnership, 50 Conn. Sup. 299, 925 A.2d 468 (2005). 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.

       Although named as a defendant in this action, the city of New Britain is not a party to this appeal.