author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. ANTHONY FISHER
    (AC 18314)
    O’Connell, C. X, and Lavery and Landau, Js.

      Argued January 18
    officially released April 18, 2000

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

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

LANDAU, J.

The defendant, Anthony Fisher, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) permitted the state to introduce evidence of (a) prior altercations between the defendant and the victim, and (b) a prior, unrelated injury to the victim, (2) allowed the state to exercise a peremptory challenge and denied his Batson challenge, (3) prevented him from presenting a defense during the testimony of a witness and (4) exercised its discretion when it denied his motion to discharge counsel and his counsel’s request to withdraw. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. The defendant and the victim became engaged to be married in December, 1993, some seven months after they met. Problems plagued their relationship, which deteriorated rapidly in the six months prior to the defendant’s shooting the victim. The defendant knew that one of the victim’s arms was partially paralyzed due to an accident. The couple argued and frequently fought physically. When their disagreements erupted into physical altercations, it was not uncommon for the defendant to grab and restrain the victim. On one occasion, the defendant threatened to “flood” the house by cutting open a waterbed. The police were summoned. They asked the defendant to leave and arrested him when he became belligerent.

In August, 1995, after the victim announced her plans to go out for the evening with some female friends, the defendant put his .45 caliber handgun to her head. The defendant eventually left the home, saying he was going to confront the victim’s girlfriend, whom he blamed for the victim’s behavior. As a result of this incident, the defendant ceased living with the victim. Thereafter, he telephoned the victim at work and at home constantly. On September 13, 1995, the day before the shooting, the defendant again called the victim, yelling and blaming her for his problems. The next day, just after the victim had driven her son to school, the defendant caused his automobile to strike the victim’s vehicle, making it spin. When the victim got out to survey the damage, she saw the defendant pointing his handgun at her. He fired, striking the victim in the forehead and knocking her to the ground. As she lay there, the defendant fired a second shot, striking her in the shoulder, and a third shot, which went into her neck and took off a portion of her ear as it exited her body. The automobile accident was witnessed by a third party, who also saw the defendant with a gun and heard shots.

The victim was taken to a hospital, where she was treated for her injuries. At the scene, the police recovered three spent .45 caliber cartridges, which were determined to have been fired from the gun the defendant surrendered to the police several days after the shooting. The defendant had no permit for the gun. After his arrest, trial and conviction, the defendant appealed.

I

The defendant’s initial assertion consists of two evidentiary claims involving the admission of testimony regarding (1) prior altercations between him and the victim, and (2) an injury to the victim’s arm. It is well settled that the trial court’s ruling on the admissibility of evidence is entitled to great deference. See State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); States. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citation omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

A

The defendant’s first claim is that the court improperly admitted evidence of altercations between the defendant and the victim prior to the shooting. We disagree.

At trial, the defendant objected on the grounds of relevance and undue prejudice when the state asked the victim whether “something happened in [her] relationship [with the defendant] prior to September 14th, 1995.” The state claimed the evidence was relevant,to motive, intent, course of conduct and the defendant’s way of behaving on the day of the shooting. Defense counsel agreed. After the court overruled the objection, the victim testified about the couple’s turbulent relationship, including the altercation involving a gun that occurred in late August, 1995. When he objected to the admission of evidence concerning the victim’s injury to her arm, defense counsel conceded that evidence of verbal and physical fights between the defendant and the victim was relevant.

The defendant’s concession as to the admissibility of altercations between him and the victim is correct under our law. “It is well settled that evidence of prior misconduct is admissible for the limited purposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design.” (Internal quotation marks omitted.) State v. Cepeda, 51 Conn. App. 409, 430, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). “Evidence of prior threats by a defendant directed to his victim has been held relevant to the issues of intent and motive. See, e.g., State v. Veal, 201 Conn. 368, 375, 517 A.2d 615 (1986); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).” State v. Cepeda, supra, 430. Furthermore, because the defendant conceded to the admission of evidence concerning prior disputes with the victim, the claim is not reviewable on appeal. See State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989).

B

The defendant also claims that the court improperly admitted evidence of the victim’s injured arm because it had no probative value and only served to stir the jury’s emotions. We do not agree.

The defendant objected when the state asked the victim whether “prior to getting shot, did you have some sort of injury that incapacitated you in some way?” After the objection was overruled, the victim testified that she had sustained a crushing injury to her left arm in an accident. When the state sought to inquire what happened when the altercations between her and the defendant became physical, the defendant objected again, and the jury was excused from the courtroom. The defendant’s counsel argixed that evidence of the prior injuiy was irrelevant. See footnote 6.

The court properly admitted the evidence concerning the victim’s preexisting arm injury. It was relevant, first, because it tended to impeach the defendant’s testimony that it was the victim, not he, who was the primaxy physical aggressor. Second, the evidence demonstrated that the defendant’s need to control the victim was so strong that it caused him to exploit her physical injury. Jurors might reasonably have concluded that such a need motivated the defendant to take the drastic action of shooting the victim when faced with the prospect of losing her. The trial couxt properly exercised its discretion in admitting the evidence.

II

In his second claim, the defendant maintains that the court improperly permitted the state to peremptorily challenge an African-American member of the venire panel in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In Batson, the United States Supreme Couxt concluded that the federal equal protection clause forbids the prosecutor to challenge peremptorily potential jurors solely on account of their race. “[A] trial court’s determination that there has or has not been intentional discrimination is ‘entitled to appropriate deference’ upon review on appeal. Id. [98 n.21.]” State v. Gonzalez, 206 Conn. 391, 395, 538 A.2d 210 (1988).

On appeal, the defendant claims that the state’s excusal of an African-American venireperson amounted to purposeful racial discrimination. After the defendant proffered his Batson challenge, the state advanced a race neutral response. The court responded that it had “listened very carefully to [the venireperson’s] testimony. And also the reasons given by the state. The court will deny the Batson challenge, and I refuse to seat [him].” The defendant said nothing, and the venireperson was excused.

The defendant waived his right to raise this claim on appeal because he made no effort to show the existence of purposeful racial discrimination in response to the state’s explanation and, therefore, implicitly accepted the state’s proffered race neutral reasons. See State v. Beltran, 246 Conn. 268, 280, 717 A.2d 168 (1998); State v. Cepeda, supra, 51 Conn. App. 426-27. This claim, therefore, must fail.

Ill

The defendant’s third claim is that his right to present a defense was impaired. He complains that interruptions during the direct testimony of Peter Zeman, an expert witness, concerning the results of Zeman’s psychiatric examination of the defendant were improper. The defendant points to three incidents that occurred during Zeman’s testimony. In none of those exchanges did defense counsel voice an objection and, in only one exchange, the first, did the court actually issue a ruling. This garden variety claim of evidentiary impropriety, robed in constitutional garb, is without merit. It came about when defense counsel, not the witness, began to read from a document not in evidence. The court’s ruling was entirely appropriate because it is improper to read from a document not in evidence. State v. De Santis, 178 Conn. 534, 545, 423 A.2d 149 (1979); Robinson v. Faulkner, 163 Conn. 365, 373, 306 A.2d 857 (1972); Shulman v. Shulman, 150 Conn. 651, 662, 193 A.2d 525 (1963); see also M. J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 291-92, 99 A. 853 (1917); Mezes v. Mead, 48 Conn. App. 323, 329, 709 A.2d 597 (1998).

IV

In his fourth and final claim, the defendant asserts that the court improperly denied his motion to discharge counsel and counsel’s request to withdraw. We are not persuaded.

Some two weeks prior to the commencement of voir dire, the defendant filed a pro se motion to discharge his public defender and to appoint new counsel, the gist of which reflected his belief that defense counsel was ignoring him, was not properly preparing his case and was sympathetic to the victim. During the hearing on his motion, the defendant said he was “not happy with the way things are going.” The court, Clifford, J., told the defendant that he was free to hire any attorney he wanted, but that his right to appointed counsel did not include an unlimited choice of an attorney. The court concluded that no exceptional circumstances existed to justify discharging defense counsel on the eve of trial and denied the motion.

On the day voir dire began, the defendant again asked that his counsel be removed, adding to his previously stated reasons that his counsel was getting “some kind of kickback or something from the state or from the victim” and was “sending me up the river.” Defense counsel disagreed on the record with the defendant’s argument. The voir dire process continued and then, on the first day of trial, the defendant again expressed his dissatisfaction with his counsel. The court, Norlco, J., explained to the defendant that he had a right to represent himself and began a canvass to make sure the defendant understood what flowed from that decision. The defendant concluded that he was not prepared to proceed pro se and elected to be represented by his attorney. Following a brief sidebar conference, defense counsel moved that he be discharged, which was denied by the court, and the evidentiary portion of the trial began.

The standard of reviewing both a motion by a defendant to discharge counsel and a motion by counsel to withdraw is the same. See State v. Patavino, 51 Conn. App. 604, 608-609, 724 A.2d 514, cert. denied, 249 Conn. 919, 733 A.2d 236 (1999). It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel and, absent a factual record revealing an abuse of that discretion, the court’s refusal to appoint new counsel is not improper. State v. Crenshaw, 210 Conn. 304, 314, 554 A.2d 1074 (1989). Moreover, appellate tribunals “look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial . . . .” State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993). Such a request must be supported by a substantial reason and, “[i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 424, 680 A.2d 147 (1996).

We have examined the record, which fails to reveal any facts supporting a conclusion that defense counsel was laboring under any allegiance to the state or the victim. The record also fails to substantiate any of the other allegations leveled by the defendant against his trial counsel. The defendant’s decision to testify and the decision to present a defense of amnesia necessarily required effective and meaningful communication between the defendant and trial counsel. We conclude that the trial courts did not abuse their discretion when they refused to appoint new counsel and denied counsel’s motion to withdraw.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical ipjury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       General Statutes § 29-35 provides: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transport ation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a. testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”

         Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       The defendant was acquitted of the charge of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49 (a) (2).

       In objecting to the admission of evidence concerning the victim’s arm injury, defense counsel stated: “See, the problem, Your Honor, is it’s again been bootstrapped. You have this evidence [of prior arguments and altercations], which I can see would probably be admissible otherwise; yet, she’s trying to tie to it some preexisting injury, which somehow, naturally, would affect the witness’ behavior during whatever altercations are being testified to. But what is the probative value? I can see the claim of disputes, anything the defendant might have said or the way he acted, if it’s not too remote, to go to intent or motive. But now what we have, essentially, is the additional effort to portray the defendant as a person who is willing to ha.ve an altercation with someone who has a disability.” (Emphasis added.)

         Batson set out a three step process by which claims of discriminatory peremptory challenges are to be determined under the federal constitution. First, the defendant, who is a member of a cognizable racial group, must make a prima facie showing that the state has exercised peremptory challenges on the basis of purposeful racial discrimination. Second, if that showing is made, the burden shifts to the state to articulate a race neutral explanation for striking the jurors of the defendant’s race. Third, the defendant then has an opportunity to demonstrate that the state’s reasons are insufficient or pretextual. The trial court must then determine whether the defendant has met his burden of proving purposeful discrimination by a preponderance of the evidence. Batson v. Kentucky, supra, 476 U.S. 96-98.
      Under Connecticut law, there is no requirement that a defendant contesting the use of the peremptory challenge need establish a prima facie case of purposeful discrimination. State v. Holloway, 209 Conn. 636, 646 n.4, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). The state, however, must “provide the court with a prima facie case response consistent with the explanatory mandate of Batson.” Id., 646.

       In response to the defendant’s Batson challenge, the prosecutor said in part: “With respect to the defendant’s request, I would note the following: That this venireperson has a brother who has been arrested; that he apparently has studied and taught matters related to law and race; he is concerned about the issue of justice as it affects black people; and he’s undertaken, apparently, a statistical study of the criminal justice system and statistical correlations involving people of a black race.
      “He has noted that he’s troubled because [he has] concluded that the system is unfair to blacks; that they are convicted more often and punished more severely according to statistics he has studied.
      “He acknowledged [that] his attitude on a jury would be different in a case where there was not a black defendant. With a black defendant, he would view the evidence more scrupulously, being more attentive. He indicated he identifies with blacks, would be especially attuned to situations where blacks are involved.

        “In short, the challenge is not for his race. The court can find it is for— the conclusions that he has come to do not necessarily have to be conclusions or views of a black person, but somebody who has studied what he has said he studied and come to those conclusions.”

       The defendant did make a claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), in his reply brief. We have repeatedly stated that a reply brief is an improper venue for such a claim. Golding may not be raised for the first time in a reply brief, as that procedure does not provide the state with an opportunity to reply to the claim. See Practice Book §§ 60-2 and 60-5; State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). Moreover, Golding and its progeny do not provide for review of waived claims that are not of constitutional magnitude. State v. Bonsu, 54 Conn. App. 229, 236-37, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999).

       The following exchanges occurred during Zeman’s direct testimony: “[Defense Counsel]: Now, I noticed, in preparing your report, that you indicated on page three, in the second—actually, the first full paragraph, that [the defendant] at first denied—

        “[Prosecutor]: I’m going to object to reading from the report, Your Honor. The report isn’t in [evidence]. I don’t know that it’s going to get in.
      “The Court: Sustained.
      * ** *
      “[Prosecutor]: I notice the doctor’s reading from something, Your Honor. I would object to that.
      “The Court: Was it used to refresh your recollection, doctor?
      “Witness: It was. I really wasn’t reading from it, but I’ll avoid it.
      “The Court: Thank you.
      “Witness: He then went back to—
      “[Prosecutor]: Again, Your Honor, I don’t know what Dr. Zeman has in front of him, but he keeps glancing down at his report, apparently, and answering these questions.
      “Witness: Why don’t we settle this and—
      “[Prosecutor]: Excuse me, Dr. Zeman. I would ask that the witness be instructed not to read from anything, including his report, when he’s answering questions. If he can’t answer a question and needs to refresh his recollection, then that should be made known to the court.
      “The Court: Thank you. The doctor has put his report away, so that should meet compliance with your request.”
      The defendant also points to the following exchange between the prosecutor and Zeman during cross-examination:
      “[Prosecutor]: So what you were saying, then, wasn’t necessarily significant personal history. You were just reciting the information about the defendant’s personal history that you got from him?
      “Witness: I was beginning to and didn’t get into it in great detail because of the constraints on me.”

       The record before us indicates that to the extent that there was any breakdown in communication between defense counsel and the defendant, that breakdown was of the defendant’s own making and, therefore, cannot form the basis of a claim to remove counsel. See State v. Gonzalez, 205 Conn. 673, 684, 535 A.2d 345 (1987).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RALPH J. BIRCH v. COMMISSIONER OF CORRECTION
    (AC 18671)
    Foti, Lavery and Schaller, Js.

    Argued February 28
    officially released April 18, 2000

      David B. Rozwaski, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, David S. Shepack, senior assistant state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).

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

   Opinion

PER CURIAM.

The petitioner, Ralph J. Birch, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus. He claims the court improperly determined that his trial counsel provided effective assistance. Our examination of the record and briefs, and our consideration of the oral arguments of the parties persuades us that the judgment of the habeas court should be affirmed.

In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s mistakes, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). The petitioner has not satisfied this burden.

The habeas court’s dismissal of the petition was based on a review of the petitioner’s claims and its findings that the petitioner’s trial counsel (1) adequately investigated the facts and the law, (2) made reasonable strategic decisions to not call certain witnesses or to present certain evidence and (3) conducted effective cross-examinations of the state’s witnesses. The habeas court further found that there was no credible evidence that the petitioner’s trial counsel failed to provide him with discovery materials. Accordingly, the habeas court concluded that the petitioner had failed to carry the burden of proof required to establish that his trial counsel provided ineffective assistance.

We conclude that the habeas court’s findings of fact were not clearly erroneous and that its decision to dismiss the petition resulted from a correct application of the law to the facts.

The judgment is affirmed.

       Following a jury trial in June, 1989, the petitioner was convicted of felony murder in violation of General Statutes § 53a-54c.

       The petitioner claims, inter alia, that his trial counsel failed to (1) provide him with certain discovery materials, (2) investigate alibi witnesses, (3) present an adequate alibi defense and (4) impeach the state’s witnesses effectively.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. EMILIANO PEREZ
    (AC 18824)
    O’Connell, C. J., and Landau and Hennessy, Js.

    Argued December 2, 1999
    officially released April 18, 2000

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

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Hilary S. Kreitner, certified legal intern, for the appellee (state).

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

   Opinion

HENNESSY, J.

The defendant, Emiliano Perez, appeals from the judgments of conviction, rendered after his guilty plea, of possession with intent to sell a narcotic substance in violation of General Statutes § 21a-277 (a) and violation of probation in violation of General Statutes § 53a-32. On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his plea, which he claims was not voluntarily or knowingly given, because (1) he was denied his right to counsel of his choice, (2) the court interpreter was not properly sworn in at his plea hearing and (3) the court improperly advised him of the mandatory minimum sentence for a violation of § 21a-277 (a). We affirm the judgments of the trial court.

The following facts and procedural history are relevant for our resolution of this appeal. The defendant was charged with possession of a narcotic substance with intent to sell in violation of § 21a-277 (a). On April 27, 1998, the defendant entered into a plea agreement under which he would serve a sentence of fifteen years, execution suspended after eight years, and three years probation on the drug charge. He would also serve a concurrent seven year sentence on a violation of probation charge. The court accepted the defendant’s guilty plea as to only the narcotics charge under the Alford doctrine, but did not impose sentence at that time.

Subsequently, through new counsel, the defendant sought to withdraw his guilty plea, claiming, inter alia, that the “defendant’s relationship with [his previous] counsel prevented effective communication so as to allow him to receive appropriate legal advice.” Despite the defendant’s claim of ineffective assistance of counsel, the court denied the motion to withdraw the guilty plea and sentenced the defendant to a total effective sentence of fifteen years incarceration, execution suspended after eight years on both the narcotics charge and the violation of probation charge. This appeal followed. Other facts will be discussed where relevant to the issues in this case.

I

The defendant claims first that his guilty plea was not knowingly given because he was denied the right to counsel of his choice as guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant claims that he was not represented by his counsel of choice, attorney F. Mac Buckley, but rather one of Buckley’s associates, attorney Robert Pickering.

“[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears there has been abuse of discretion.” (Internal quotation marks omitted.) State v. Spence, 29 Conn. App. 359, 363, 614 A.2d 864 (1992). Practice Book § 39-27 delineates the grounds for allowing a defendant to withdraw his or her guilty plea after it has been accepted by the court. The defendant claims in this case that he was denied effective assistance of counsel in violation of article first, § 8, of the Connecticut constitution and, therefore, should have his guilty plea withdrawn pursuant to Practice Book § 39-27 (4). To withdraw his guilty plea, the defendant must prove that counsel’s assistance was ineffective and that it was this ineffectiveness that rendered the guilty plea involuntary. Myers v. Manson, 192 Conn. 383, 393, 472 A.2d 759 (1984).

In support of his claim, the defendant argues that he was unable to contact Buckley during the months prior to entering his plea of guilty and, as a result, was not able to get any legal advice from him. The defendant, however, does admit that he had met on a number of occasions with Pickering. There was no claim by the defendant that he did not receive competent legal advice from Pickering. He claims only that he did not receive advice from the member of the law firm whom he preferred. While a criminal defendant has a “degree of freedom” in choosing counsel, he does not have an “unlimited opportunity” to do so. State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987). As stated previously, to undo his guilty plea the defendant must prove that his counsel’s assistance was ineffective and that it was this ineffectiveness that rendered the guilty plea involuntary. Myers v. Manson, supra, 192 Conn. 393.

There was no evidence presented that the defendant received ineffective assistance of counsel. In fact, in denying the defendant’s request to withdraw his plea, the court commented favorably on Pickering’s representation of the defendant. Accordingly, we conclude that the court did not abuse its discretion in denying the motion to withdraw the guilty plea on the basis of the defendant’s claim that he was denied his right to effective assistance of counsel.

II

The defendant claims next that his plea of guilty was not entered voluntarily because the court interpreter was not administered the interpreter’s oath as required by General Statutes § 1-25 immediately prior to the defendant entering his plea.

The defendant failed to object to this matter during the trial and now seeks to argue it on appeal. “Ordinarily, we will not review a claim that was not distinctly raised before the trial court.” State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). In addition, the defendant has failed to raise a claim of entitlement to the extraordinary review provided under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” State v. Rogers, supra, 787. We therefore decline to review the defendant’s claim.

III

The defendant claims finally that the court inadequately advised him as to the minimum sentence for the charges to which he pleaded guilty. The defendant argues that his plea agreement therefore was not knowingly and voluntarily entered into and, thus, should be withdrawn. We decline to review this claim.

The defendant raises this claim for the first time on appeal and did not request review of it under either the Golding or plain error doctrines. “As this court has previously noted, it is not appropriate to engage in a level of review that is not requested.” State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). Accordingly, we decline to review this claim.

The judgments are affirmed.

In this opinion the other judges concurred.

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

       The defendant has not briefed nor cited any case law to support his claims of violation of his right to counsel of his choice as guaranteed by the federal constitution. We therefore decline to review this claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998).

       Practice Book § 39-27provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows . . .
      “(4) The plea resulted from the denial of effective assistance of counsel .. .

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

       See part II of this opinion.


text:
    ISIDRO RIVERA, JR. v. COMMISSIONER OF CORRECTION
    (AC 19062)
    Foti, Landau and Spear, Js.
    Argued February 14
    officially released April 18, 2000

      David B. Rozwaski, for the appellant (petitioner).

      Linda N. Howe, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Isidro Rivera, Jr., appeals from the judgment rendered by the habeas court denying his petition for a writ of habeas corpus. The petitioner challenges that court’s denial of his petition for certification to appeal to this court. The petitioner claimed in his petition for a writ of habeas corpus that he was denied the effective assistance of trial and appellate counsel.

To obtain appellate review of the dismissal of a petition for habeas corpus after the habeas court has denied a petition for certification to appeal, the petitioner must make a two part showing. First, he must demonstrate that the habeas court’s ruling constituted an abuse of discretion. If he succeeds in that, he must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To establish an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues differently or that the questions are adequate to deseive encouragement to proceed further. Id., 616-17.

Having reviewed the record and briefs, and having heard from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See id., 612; Simms v. Warden, 229 Conn. 178, 186-89, 640 A.2d 601 (1994); Walker v. Commis sioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s denial of the petition for a writ of habeas corpus was predicated on a factual review of the petitioner’s claims that his trial counsel failed (1) to follow-up on a motion to suppress and (2) to object to out-of-court identification statements, and that his appellate counsel failed to brief the evidentiary issues.

The petitioner’s judgment of conviction for robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) was affirmed by this court. State v. Rivera, 32 Conn. App. 193, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). The facts described therein are as follows: “On November 22, 1990, at about 12:42 a.m., Officer Michael Gosha, a member of the Bridgeport police department, was on patrol on the west side of Bridgeport when he was dispatched to the area of building sixteen in the P.T. Bamum housing project. Upon arrival, he observed a taxicab in the parking lot behind building sixteen, parked approximately 100 feet from Taylor Drive. Upon investigation, Gosha found Roberto Mejias seated in the cab, with his legs outside the vehicle. Mejias appeared to be shaken and his right index finger was bleeding.

“Mejias told Gosha that he had been robbed by two individuals. After the victim left by ambulance, Gosha drove around the area looking for the individuals described to him by Mejias, but was unsuccessful.

“The parking lot was not lighted that night, but there was light from streetlights on Taylor Drive. The fights fixed to the buildings in the area were not working, and, although the area was lighted to some extent from the lights on Taylor Drive, the lighting in the parking lot was poor.

“On November 24, 1990, two days after the robbeiy, Officer Daniel Garcia of the Bridgeport police department was dispatched at approximately 3:45 a.m. to transport Mejias. Garcia met Mejias at the cab company office on Main Street in Bridgeport. They went to building sixteen, apartment 102, at the Bainum complex on the basis of Mejias’ statement that he had information that the persons who had perpetrated the robbery on him were at that apartment.

“Garcia entered the building and went to apartment 102. He found a husky Hispanic male with a cast on his leg and walking with crutches, who matched the description that had been given to Garcia of one of the persons involved in the robbery. Garcia took that individual, Edwin Lopez, into custody and brought him to the police cruiser, where Mejias identified him as one of the perpetrators of the robbery. Garcia called for additional police assistance and Officer Ruby Crear arrived. Garcia placed Lopez in his police cruiser to take him to police headquarters for booking. Mejias entered the police vehicle operated by Crear. Both vehicles then left the area. The vehicle operated by Garcia was about twenty feet in front of the vehicle operated by Crear.

“At about 5 a.m., the two vehicles proceeded to St. Stephens Street and then to Albion Street in the vicinity of the Evergreen Apartments. Garcia observed three males walking in the area of the Evergreen Apartments. He observed that two of the men were African-American and the third was Hispanic. The area was sufficiently illuminated for a person to see a short distance ahead. Daylight was beginning to appear and the streetlights as well as the headlights of Garcia’s vehicle lighted the area.

“Garcia received a radio transmission from Crear’s vehicle indicating that the victim said the Hispanic male looked like the second perpetrator. Garcia stopped his vehicle, exited it and walked toward the three males. The three entered the grounds of the Evergreen Apartments. Garcia called out ‘Tito,’ a name that he had heard at the Barnum project. The three continued to walk until Garcia again called out ‘Tito’ and pointed his flashlight at them. This time, the Hispanic male turned around. The individual fit the description given by Mejias of a Hispanic male, shorter than Lopez, with a ‘fade’ haircut.

“Garcia brought the Hispanic male, the defendant, back to the vicinity of the police vehicle in which Mejias was a passenger. The take down lights of the police vehicle were lighted. Garcia brought the defendant to a point about seven feet in front of the police vehicle in which Mejias was seated. Mejias positively identified the defendant as the second individual involved in the robbery of November 22, 1990. As soon as Mejias positively identified the defendant, Garcia arrested and charged him with the commission of the offenses.” Id., 195-97.

The habeas court found no support in the petitioner’s claim that Mejias’ identification of him resulted from an impermissibly suggestive procedure that his trial counsel should have challenged through a motion to suppress. The trial counsel was found to be credible when he testified that he was of the opinion that a motion to suppress the out-of-court identification would be unsuccessful because under the totality of the circumstances the identification was not unreliable and it might be more advantageous to delay a confrontation until the time of trial. In fact, Mejias did not identify the defendant at trial.

The habeas court, in concluding that the claim was without merit, stated in its memorandum of decision: “[Mejias] was on his way to the police station at 5 a.m. in a police cruiser when he identified the petitioner as looking like the other robber. The petitioner was not then under arrest, was not in police custody, his viewing was unplanned and obviously inadvertent. . . . The exigent circumstances required the police to determine promptly whether [Mejias’] identification was such as to hold the petitioner or to release him. . . . The officer’s testimony concerning [Mejias’] out-of-court identification is admissible as an exception to the hearsay rule when the relevant witnesses are available.” (Citation omitted.)

In rejecting the claim of ineffective assistance of appellate counsel for not pursuing the suppression issue on direct appeal, the habeas court found that appellate counsel followed the strategy of trial counsel. The court found that appellate counsel concentrated on a direct attack on the lack of sufficient identification and could not raise on appeal an issue not raised at trial, that is, suppression of a suggestive out-of-court identification. Accordingly, the court concluded that the petitioner had not proven that either trial counsel’s performance or appellate counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “ ‘Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.’ ” State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).

Further, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland v. Washington, supra, 466 U.S. 689; see also Johnson v. Commissioner of Correction, 222 Conn. 87, 98, 608 A.2d 667 (1992); Valeriano v. Bronson, 12 Conn. App. 385, 393-94, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


author: VERTEFEUILLE, J.

text:
    STATE OF CONNECTICUT v. ROBERT SALVATORE
    (AC 18993)
    Lavery, SchaUer and Vertefeuille, Js.

      Argued October 29, 1999
    officially released April 25, 2000

      William T. Koch, Jr., special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom were Geoffrey E. Marion, senior assistant state’s attorney, and, on the brief, Kevin T. Kane, state’s attorney, for the appellee (state).

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

   Opinion

VERTEFEUILLE, J.

The defendant, Robert Salvatore, appeals from the judgment of conviction, following a jury trial, of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b), possession of a controlled substance in violation of General Statutes § 2 la-279, manufacturing a controlled substance in violation of § 21a-277 (b) and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). On appeal, the defendant claims that the trial court improperly (1) found that he did not have standing to challenge the validity of the search and seizure warrant pursuant to which the marijuana was discovered, (2) applied the rule in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and denied the defendant’s motion to suppress, and (3) denied the defendant’s claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During June and August, 1997, police were advised by three people that the defendant, who resided at the North American Wildlife Refuge at 11 Mountain View Road, East Lyme, was cultivating large amounts of marijuana on the property, that approximately fifty marijuana plants were located on the northwest comer of the property and that he kept buds from the marijuana plants in his bedroom. One of the three also brought police a marijuana leaf and several buds of marijuana from the property. On August 18,1997, Detective Robert Bardelli of the Connecticut state police, a trained aerial marijuana spotter, and a police officer from the East Lyme police department flew over the property in an airplane. During the flight, Bardelli readily saw numerous marijuana plants on the property. Many of the plants were planted in white buckets that were lined up in rows and they were, therefore, easily observed.

A search and seizure warrant was obtained for the property. The house, the land adjacent to it and various outbuildings were searched. Police found marijuana in the defendant’s bedroom and three marijuana stalks on top of the canopy of his bed. The police also found a marijuana grow light, a notebook concerning marijuana cultivation in the defendant’s bedroom closet, marijuana, a marijuana pipe and rolling papers in other locations within the house. The defendant had $1402 on his person. Paths from the house led to two groves approximately 3000 feet from the house, where police found fifty-nine marijuana plants. Three of the plants had only remnants of stalks that had been cut and removed. Other paths led to a tunnel that contained a special area equipped with reflective siding and plastic sheeting to retain warmth and humidity. The defendant was arrested on numerous drug charges.

Prior to trial, the defendant filed two motions to suppress the evidence collected during the search. After an evidentiary hearing, the trial court denied the motions in a ruling from the bench. The court found that the property was comprised of two parcels, one being the house and approximately one acre of land that was leased by the defendant from the owner, the North American Wildlife Association (association). The defendant was president of the association. The second parcel, where the fifty-nine marijuana plants were found, was adjacent to the first and was comprised of twenty-two acres of land owned by Patricia Ader, who leased the land to the association. The court found that the address, 11 Mountain View Road, referred to both parcels. The court concluded, sua sponte, that the defendant lacked standing to challenge the warrant with respect to the twenty-two acre parcel. With respect to the house parcel, the court found that the affidavit in the search warrant application provided an adequate factual basis for the issuance of the search warrant. The court further found that the defendant had not made the necessary preliminary showing to have a Franks hearing and concluded that none of the alleged omissions from the search warrant affidavit was material.

I

The defendant first contends that the trial court improperly found that he lacked standing to challenge the search warrant with respect to the twenty-two acre parcel of land where the fifty-nine marijuana plants were located. The defendant urges us to adopt the rule of “automatic standing” under our state constitution. We decline to do so.

“Under the rule of automatic standing, a defendant may seek to suppress evidence as the fruit of an illegal search if he or she was legitimately on the invaded premises or has been charged with an offense of which possession of the seized item is an element.” State v. Hill, 237 Conn. 81, 107, 675 A.2d 866 (1996) (Norcott, J., dissenting). Automatic standing was originally the applicable rule under the federal constitution; Jones v. United States, 362 U.S. 257, 264, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled, United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); but “was subsequently abandoned in favor of the more restrictive ‘reasonable expectation of privacy’ test.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Whether the state constitution embraces the principle of automatic standing remains an open but important question. See State v. Maia, 243 Conn. 242, 244, 703 A.2d 98 (1997).

The state correctly points out that the defendant failed to raise his claim of automatic standing before the trial court and that he failed to request in his initial brief that we review this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. In his reply brief, the defendant claimed review under Golding, but failed to provide analysis of this claim.

We decline to review this claim for two reasons. First, “[c]laims on appeal that are inadequately briefed are deemed abandoned. . . . This rule applies to claims that the defendant is entitled to . . . Golding review.” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 599, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). Second, even if the defendant had adequately briefed the issue, the defendant cannot request Golding review for the first time in a reply brief. State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). By waiting until his reply brief to make the .request for review under Golding, the defendant deprived the state of the opportunity to brief the merits of his claim for automatic standing. It would be inappropriate for us to decide this significant question when it has been briefed by only one party. We, accordingly, decline to review the defendant’s claim.

II

The defendant next claims that the trial court improperly applied the rule in Franks v. Delaware, supra, 438 U.S. 154, and denied his motions to suppress. We disagree.

The defendant contends that the affiants in the search warrant affidavit intentionally omitted three material facts from the affidavit: (1) that Bardelli’s observation of the marijuana plants on the property was made from an airplane flying at altitudes between 300 and 800 feet; (2) that the so-called “concerned citizens” referred to in the affidavit had some relationship to the association; and (3) that the property to be searched was comprised of two separate parcels of land that had different owners.

We begin by recognizing that we have a “ ‘longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant.’ ” State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990). “Not all omissions, however, even if intentional, will invalidate an affidavit. . . . [A]n affiant may omit facts that he believes to be either immaterial or unsubstantiated.” (Citation omitted.) Id. Before a defendant is entitled to a Franks hearing, he must “make a substantial preliminary showing that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause.” Id., 666-67.

Paragraph eight of the search warrant affidavit states that Bardelli observed several marijuana plants on the property. The affidavit does not disclose that Bardelli made that observation from an airplane flying at altitudes between 300 and 800 feet. The defendant contends that by omitting this allegedly material fact from the affidavit, the police precluded the issuing judge from determining whether the observation was made as part of an illegal search.

The defendant, however, failed to satisfy the first part of the required showing for a Franks hearing because he presented no evidence with respect to the police officers’ intent in omitting the fact that Bardelli’s observation was aerial. The defendant also fails to cite any case from Connecticut or any other jurisdiction that holds that the fact that the search was aerial is a material fact that must be disclosed in the warrant affidavit. Both of the leading cases addressing the legality of aerial searches have in fact upheld the validity of these searches. In California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986), the United States Supreme Court held that observation of marijuana plants in the respondent’s backyard by trained officers in an airplane at an altitude of 1000 feet did not violate the fourth amendment to the United States constitution. Three year’s later, that court held valid an aerial search of the contents of a greenhouse within the curtilage of the defendant’s home by a helicopter flying at an altitude of 400 feet in compliance with regulations of the Federal Aviation Administration (FAA). Florida v. Riley, 488 U.S. 445, 450, 109 S. Ct. 693, 102 L. Ed. 2d 835 (1989). The defendant makes no claim in this case that the aerial search was in violation of FAA regulations. In light of Ciraolo and Riley, we cannot conclude that the fact that Bardelli’s observation of the marijuana plants was aerial was a material fact that should have been disclosed in the warrant affidavit.

The defendant’s claim that the affidavit improperly characterized three informants as “concerned citizens” is equally unavailing. The defendant again provided no evidence with respect to the police officers’ intent in characterizing the informants as concerned citizens. The only evidence presented by the defendant at the suppression hearing was that the three informants “had something to do with the North American Wildlife Association.” There was no evidence presented or claim made that the three persons in question had any ulterior motive in reporting their observations of marijuana to the police. The defendant failed to make the necessary showing that there was a material omission in the affidavit with respect to the three citizen informants.

The third alleged material omission from the affidavit was the ownership status of the property, more specifically, that it was comprised of a house owned by the association and leased to the defendant, and a second parcel of twenty-two acres owned by Ader and leased to the association. Once again, the defendant provided no evidence with respect to the intent of the police officers in failing to include this information in the affidavit. Moreover, the defendant failed to provide any analysis as to how this information was material. Under our search warrant statute, it is possession or control of property that is relevant, not ownership. See General Statutes § 54-33a (b) (1).

The defendant failed to make the necessary preliminary showing that the affidavit was misleading due to the omission of information material to the determination of probable cause. Accordingly, we conclude that the trial court acted properly in refusing to conduct a Franks hearing and denying the defendant’s motions to suppress.

Ill

In his final claim, the defendant contends that the trial court improperly denied his claim under Batson v. Kentucky, supra, 476 U.S. 79, that the prosecution exercised a peremptory challenge in a racially biased way. We do not agree.

“In Batson, the United States Supreme Court set forth the guidelines for assessing a defendant’s claim of purposeful, race-based peremptory challenges by the state. [Id.], 96-98. Procedurally, the facts necessary to prove the state’s racially discriminatory purpose under the Batson test are propounded by the parties through a three step process. First, the defendant must establish a prima facie case of purposeful racial discrimination by the state. Id., 96-97. The burden then shifts to the state to propound a race-neutral purpose for seeking the removal of the venireperson. Id., 97-98. Last, the defendant may then demonstrate that the state’s reasons are pretextual or insufficient. Id. The defendant carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. State v. Gonzalez, 206 Conn. 391, 395, 538 A.2d 210 (1998).” (Internal quotation marks omitted.) State v. Beltran, 246 Conn. 268, 278, 717 A.2d 168 (1998). Our Supreme Court held in State v. Holloway, 209 Conn. 636, 646 n.4, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989), that in lieu of establishing a prima facie case of racially motivated jury selection by the state, the defendant need show only that he or she is a member of a cognizable racial group and that the prosecutor exercised a peremptory challenge to remove a venireperson of that race.

In the present case, the state exercised a peremptory challenge to excuse an African-American woman from the venire. Counsel for the defendant made a Batson challenge in connection with her dismissal. The trial court asked the prosecutor his reasons for exercising a challenge. The prosecutor provided ostensibly race neutral reasons for excusing the venireperson. The court implicitly accepted those reasons by having the juror brought into the courtroom and then excusing her. Counsel for the defendant remained silent as the court excused the juror. Only after the juror was excused did defense counsel speak up, at which point he simply stated that he wanted to preserve his Batson challenge on the record.

The defendant contends that the court did not analyze the reasons given by the state for excusing the venireperson and further that the court did not give the defense the opportunity to demonstrate that the state’s reasons were insufficient or pretextual. His complaints are without merit. After the state met its burden of providing race neutral reasons for excusing the venireperson, “it was incumbent upon the defendant to persuade the trial court that the state’s reasons were insufficient or pretextual.” State v. Beltran, supra, 246 Conn. 280. Given the defendant’s silence, “the only inference that the trial court could have drawn was that the defendant accepted the state’s explanation.” Id.

We reject the defendant’s attempt to transfer to the trial court his responsibility to pursue his Batson challenge. The defendant, having requested and received a valid race neutral explanation from the state, and having made no effort to challenge that explanation, now argues that the court had a duty to do something more, sua sponte, before excusing the venireperson. The defendant offers no authority or reason for such an unorthodox application of the Batson test, and we decline to fashion one in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, who is Caucasian, may nonetheless make a Batson challenge with respect to a juror of a different race pursuant to Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).


author: LAVERY, J.

text:
    JAMES SCHIANO v. BLISS EXTERMINATING COMPANY ET AL.
    (AC 18358)
    Lavery, Zarella and Dupont, Js.

      Argued January 12
    officially released April 25, 2000

      Richard G. Kascak, Jr, with whom, on the brief, were Andrew P. Dwyer II and Serge G. Mihaly, for the appellant (plaintiff).

      Richard Reeves Iline, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William, J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).

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

   Opinion

LAVERY, J.

The plaintiff, James Schiano, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) with respect to the plaintiffs third party settlement. On appeal, the plaintiff claims that the board improperly concluded (1) that the commissioner had jurisdiction to determine the effect settlement of a third party civil action had on his compensation benefits, (2) that the commissioner had found properly (a) that no portion of the third party settlement was attributable to his wife’s loss of consortium claim, (b) that there was an agreed upon moratorium and (c) the benefits to which the moratorium applied, and (3) that the defendant second injury fund (fund) is entitled to a credit from the third party settlement. We affirm the decision of the board.

The following facts are relevant to this appeal. On February 25, 1986, the plaintiff sustained a compensable, work-related lower back injury while he was employed by the named defendant, Bliss Exterminating Company (employer). The employer and the plaintiff agreed on a base compensation rate, and the commissioner approved the agreement on June 6, 1986. The plaintiffs claim was transferred to the fund in April, 1988. In April, 1989, the commissioner approved a voluntary agreement between the plaintiff and his employer that the plaintiff had a 50 percent permanent partial disability of his lower back, which entitled him to 260 weeks of compensation. In April, 1989, two separate commutations of thirty weeks each were applied to the end of the plaintiffs specific compensation award.

Prior to August, 1988, the plaintiff and his wife commenced a civil action against a third party, claiming that the plaintiffs work-related injury and his wife’s loss of consortium were proximately caused by the third party’s negligence. The employer and the fund intervened as party plaintiffs in the civil action, pursuant to General Statutes (Rev. to 1985) §§ 31-293 and 31-352. The plaintiff and his wife settled the third party action for $70,000. According to the agreement of the parties, the plaintiff, the employer and the fund all received a portion of the settlement after expenses and attorney’s fees were paid. The plaintiff and his wife received $30,000. The plaintiff and the fund agreed that there would be a $30,000 moratorium on the plaintiff’s compensation from the fund, but at the time of the agreement, the fund was unaware that the plaintiff was temporarily totally disabled. The settlement agreement was not presented to the commissioner for approval and did not come to his attention until the plaintiff sought additional compensation.

On November 15,1991, following a three day hearing, the commissioner rendered written findings and an award, concluding in part that the effect of the moratorium, if any, had not been sufficiently addressed at the hearing and that a further hearing was required. Following an additional hearing and receipt of briefs, the commissioner determined that the plaintiff and the fund had agreed to a moratorium that “was in lieu of 108 weeks of specific disability benefits, which would not be paid but deducted from any unpaid specific disability benefits.”*

The plaintiff appealed to the board from the commissioner’s decision regarding the effect of the moratorium. The board rendered a decision in December, 1994, concluding that the commissioner had properly interpreted the effect of the moratorium pursuant to § 31-293 and Enquist v. General Datacom, 218 Conn. 19, 587 A.2d 1029 (1991). The board also concluded, however, that the commissioner had improperly applied the entire $30,000 settlement to the moratorium because he made no finding as to how much of the settlement was paid in satisfaction of the wife’s loss of consortium claim. The board remanded the matter to the commissioner to make that determination. Pursuant to the remand, the commissioner held an additional hearing and determined that no portion of the $30,000 settlement was attributable to the wife’s loss of consortium claim.

The plaintiff appealed to the board, which affirmed the commissioner’s findings and award in an opinion rendered in April, 1998. The plaintiff appealed to this court from the board’s 1994 decision concerning the moratorium and its effect, and from its 1998 decisions concerning the loss of consortium claim.

We note the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). . . . Doe v. Stamford, 241 Conn. 692, 696-97, 699 A.2d 52 (1997). It is well established that [although not dis-positive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. Doe v. Stamford, supra, 697; see Davis v. Norwich, supra, 317. ... Dowling v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, [cert. denied sub nom. Slotnik v. Considine,] 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).” (Internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 641-42, 729 A.2d 212 (1999). Our Supreme Court has previously construed § 31-293 to facts similar to the ones now before this court. See Love v. J. P. Stevens & Co., 218 Conn. 46, 587 A.2d 1042 (1991); Enquist v. General Datacom, supra, 218 Conn. 19.

I

The plaintiff claims that the board improperly determined that the commissioner had jurisdiction to interpret the effect the settlement of his third party litigation had on his compensation benefits. More specifically, the plaintiff claims that a commissioner’s authority is defined by statute and does not extend to matters litigated in the Superior Court, to contractual agreements between the plaintiff and a third party or to his wife’s loss of consortium claim. We disagree.

The powers and duties of a commissioner are set forth in General Statutes § 31-278, which provides in part: “Each commissioner shall, for the purposes of this chapter, have power to summon and examine mder oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper . . . .” See also Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 444-45, 705 A.2d 1012 (1997).

Section 31-293 permits an injured employee to receive workers’ compensation benefits for work-related injuries and to bring a third party cause of action against a person who may be legally hable for the employee’s injuries. If the employee brings a civil action against a third party, the employer, its insurance carrier and the fund may intervene in the action if they have paid or have become obligated to pay compensation to the employee.

The question of whether a commissioner has jurisdiction to determine the award and credits, including third party settlements, made pursuant to our workers’ compensation scheme was previously determined in the affirmative by our Supreme Court in Love v. J. P. Stevens & Co., supra, 218 Conn. 46. In Love, our Supreme Court disagreed with the plaintiffs position “that even if an employer is entitled to a credit to the extent of a third party recoveiy, such credit must be established by the court and not by the workers’ compensation commissioner because § 31-293 . . . does not expressly permit the workers’ compensation commissioner to establish the amount of the credit”; id., 50; and “that it is beyond the authority of the commissioner to make apportionments for future benefits after the third party action is over.” Id. The Supreme Court held to the contrary that “the commissioner has the responsibility to calculate the credit for unknown future benefits, [and that] the [Workers’ Compensation Act, General Statutes § 31-275 et seq.,] in general, delegates this responsibility to the commissioner . . . .” Love v. J. P. Stevens & Co., supra, 50-51.

In this case, pursuant to §§ 31-278, 31-293 and 31-352, the commissioner had not only the authority but also the responsibility to review the third party settlement to determine how to resolve the fund’s claim and the settlement’s effect on future compensation benefits to which the plaintiff was entitled. To fulfill his responsibility, the commissioner had to know the value of the plaintiffs portion of the settlement and the terms to which the plaintiff and the fund had agreed. Section 31-278 permits the commissioner to conduct a hearing to gather the facts necessary to make his decision.

The plaintiff also argues that even if the commissioner had jurisdiction over his claim against the third party, the commissioner lacked jurisdiction over the plaintiffs wife’s loss of consortium claim. Although it is true that a commissioner may not dictate the terms or the amount of a loss of consortium claim, in this instance it was necessary for the commissioner to know the amount of the settlement paid in satisfaction of the wife’s claim to determine the amount of the plaintiffs recovery. In making the determination, the commissioner did not assume jurisdiction over or affect the wife’s rights with respect to the third party. The commissioner merely used the information to allocate the plaintiffs portion of the settlement to the moratorium.

II

The plaintiff also claims that the board improperly affirmed several factual conclusions made by the commissioner, e.g., (1) that no portion of the third party settlement was paid in satisfaction of the wife’s loss of consortium claim, (2) that there was an agreed upon moratorium and (3) the benefits to which the moratorium applies. We disagree.

“We will not review the facts as found by the commissioner. Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979); Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196, 497 A.2d 435 (1985).” (Internal quotation marks omitted.) Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

“[T]he power and duty of determining the facts rests on the commissioner, who is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 [542 A.2d 1118] (1988), citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 [78 A.2d 339] (1951). This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 [630 A.2d 136] (1993), appeal dismissed, 229 Conn. 587 [642 A.2d 721] (1994).” Funaioli v. New London, 52 Conn. App. 194, 197, 726 A.2d 626 (1999).

A

The plaintiff takes issue with the board’s affirmance of the commissioner’s finding that no portion of the $30,000 settlement was paid in satisfaction of his wife’s loss of consortium claim. In its April 8, 1998 opinion, the board noted that the commissioner cited the testimony of two attorneys as well as letters exchanged between counsel to support his decision that no portion of the $30,000 was paid to settle the wife’s claim. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts.” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526, 723 A.2d 1161 (1999), aff'd, 252 Conn. 261, 746 A.2d 743 (2000). It is not this court’s duty to second-guess the commissioner or the board. On the basis of our review of the record, we conclude that the board properly affirmed the commissioner’s decision.

B

The plaintiff also claims that the board improperly affirmed the commissioner’s conclusion that there was an agreed upon moratorium because there was no meeting of the minds. In its December 7, 1994 opinion, the board concluded that the commissioner properly relied on the testimony of the plaintiffs attorney, who “understood that the fund was proposing a credit rather than a mere postponement of benefits, and that this credit would be taken against whatever benefits were currently being paid, i.e., permanent partial disability benefits.” The board cited Fair v. People’s Savings Bank, supra, 207 Conn. 539-41, as authority for its position. We have reviewed the record* ******* and concur with the board’s conclusion.

Ill

In his final claim, the plaintiff argues that the commissioner and the board improperly applied our Supreme Court’s ruling in Enquist, v. General Datacom, supra, 218 Conn. 19, by applying the fund’s portion of the settlement as a credit. We do not agree.

The essence of the plaintiff’s claim is a factual distinction between Enquist, and this case. In Enquist, the plaintiff’s third party settlement was in excess of the fund’s lien. Here, the third party settlement was insufficient to satisfy the claims of the employer or the fund. This is a distinction without a difference with respect to the application of § 31-293, as the operative language of the statute provides: “If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery . . . .” (Emphasis added.) General Statutes (Rev. to 1985) § 31-293.

In Enquist, the plaintiff sought to distinguish his claim from Rosenbaum v. Hartford News Co., 92 Conn. 398, 400-401, 103 A. 120 (1918), and a subsequent statutory amendment by focusing on known and unknown future obligations of the employer. Our Supreme Court held that an employer is entitled to a credit against future workers’ compensation benefits in an amount equal to the employee’s net recovery from a personal injury claim made against a third party tortfeasor, noting that the statute provides for the employer’s claim to take precedence over the injured employee’s claim for the net proceeds of the recovery. Enquist v. General Datacom, supra, 218 Conn. 23. “[0]ur conclusion that an employer is entitled to a credit for unknown future benefits against the net proceeds of a third party recovery comports with other well established principles of workers’ compensation law. One of the purposes of the workers’ compensation statute is ‘the avoidance of two independent compensations for the injury’; Uva v. Alonzy, 116 Conn. 91, 98, 163 A. 612 (1933); a proposition that [our Supreme Court] recently reaffirmed. See Paternostro v. Edward Coon Co., 217 Conn. 42, 47-49, 583 A.2d 1293 (1991). If the plaintiffs argument were to prevail, a claim made subsequent to the disposition of a third party action would result in the employee receiving compensation from both the third party wrongdoer and the employer. In the absence of explicit statutory language mandating such a result, we decline to adopt such a construction.” Enquist v. General Datacom, supra, 26.

The language of the statute is clear; the employer’s claim takes precedence over the claim of the injured employee in an action against a tortfeasor. Here, the fund had a claim of approximately $100,000 on the proceeds of the third party action. The third party’s liability was questionable, and the suit was settled for $70,000. The fund received only $10,000 from the settlement. The employer and the fund permitted the plaintiff to take $30,000 of the settlement although by statute, they were entitled to the entire sum. At the time, the fund did not know that the plaintiff was receiving temporary total disability benefits. By permitting the plaintiff to take a lump sum when the case settled and agreeing to a moratorium, the fund allowed the plaintiff to have $30,000 immediately rather than waiting until specific benefit payments became due. The decision of the board comports with § 31-293 and the public policy against double recovery. See Gurliacci v. Mayer, 218 Conn. 531, 570, 590 A.2d 914 (1991).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The employer had a claim of approximately $62,358 against the plaintiffs recovery, and the fund had a claim of approximately $100,000. The third party’s liability was questionable, and the limit of his insurance policy was less than the total of the liens.

       General Statutes (Rev. to 1985) § 31-293 provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages . . . the injured employee . . . may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other . . . and such other may join as a party plaint iff in such action .... If such employer and employee join as parties . . . and any damages are recovered, such damages shall be so apportioned that the claim, of the employer . . . shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses . . . are more than sufficient to reimburse the employer, damages shall, be assessed in his favor in a sum sufficient to reimburse him for his claim, and, the excess shall be assessed in favor of the injured employee. . . . For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount, equal, to the present, worth of any probable future payments which he has try award become obligated, to pay on account of such injury. . . (Emphasis added.)

       General Statutes (Rev. to 1985) §31-352 provides: “The provisions of section 31-293 shall apply to any [payments from the second injury fund] and the treasurer is authorized to bring an action, or join in an action as provided by said section, when he has paid, or by award has become obligated to pay, compensation out of the fund.”

       A further hearing would be required to determine the amount of the benefits paid.

       The plaintiff then appealed to this court, but the appeal was dismissed for lack of a final judgment.

       The plaintiffs third party claim and his wife’s loss of consortium claim are inseparable. Any loss of consortium claim is derivative of the injured spouse’s cause of action. See Jacoby v. Brinckerhoff, 250 Conn. 86, 92, 735 A.2d 347 (1999); Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 287, 627 A.2d 1288 (1993); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 563-64, 562 A.2d 1100 (1989); Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987); Ladd v. Douglas Trucking Co., 203 Conn. 187, 195, 523 A.2d 1301 (1987); Hopson v. St. Mary’s Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979).

       The commissioner made the following relevant findings:
      “11. At the time the third party claim was settled, the [plaintiff] and his wife were represented by attorney John F. X. Androski.
      “12. Attorney Androski testified that he had discussed the value of the loss of consortium claim with the [plaintiff] and his wife. He stated he believed the loss of consortium claim to be worth 1/3 to 1/2 half of the total settlement.
      “13. Attorney Androski’s letter of November 15, 1989 to attorney Diane Duhamel, assistant attorney general and the representative of the second injury fund, spells out the terms of the settlement and the moratorium with respect to the net $30,000 the [plaintiff] received. There is no mention of any loss of consortium claim in the document. ([Second injury fund’s] exhibit two).
      “14. Attorney Androski’s letter to attorney Duhamel dated February 5, 1990, makes no mention of any division of apportionment of the settlement proceeds for the loss of consortium claim. ([Second injury fund’s] exhibit four).
      “15. Attorney Duhamel testified that she did not recall any conversations with attomeyAndroski or attorney Douglas Drayton, the attorney representing Aetna [Life and Casualty], the employer’s insurance carrier, regarding the dividing up or setting aside any money for the loss of consortium claim.
      “16. Attorney Duhamel’s testimony is supported by her letters of December 14,1989, and February 27,1990, to attomeyAndroski. ([Second injury fund’s] exhibits three and five).
      “17. The general release resolving the third party claim does not have any mention of a division for the loss of consortium. However, it includes a paragraph stating ‘more particularly for injuries sustained by [the plaintiff] when he slipped and fell on the premises on February 26,1986.’ ([Plaintiffs] exhibit E).
      “18. It is the [plaintiffs] contention that $29,166.67 is the portion of the settlement which is to be credited towards his wife’s claim of loss of consortium.”

       In his September 16, 1993 opinion, the commissioner made the following findings:
      “28. The present proceedings were commenced by the [plaintiffs] request for temporary total disability benefits.
      “29. The commissioner issued a findings and award on November 15, 1991, which found in part that the [plaintiff] had become totally disabled on October 15, 1989.

        “30. The [plaintiff] would be entitled to such benefits but for the fund’s claim of a ‘moratorium,' which it asserts is an absolute credit against any claim for permanent partial disability or temporary total disability benefits accruing or payable after the aforesaid settlement.
      “31. It appears that the attorney for the [plaintiff] and the attorney for the second injury fund were not in agreement in their understanding surrounding the stipulation of the third party case.
      “32. By letter dated November 15, 1989, (exhibit FF) to the second injury fund, the [plaintiffs] attorney sets forth that the ‘moratorium’ was to be applied to 108 weeks of specific disability benefits, which total approximately $30,000.00. IT IS FOUND.
      “33. On December 14,1989, (exhibit KK) the second injury fund forwarded a letter to the [plaintiffs] attorney, including a release of the third party claim. Said letter recites that the fund would have a $30,000.00 moratorium on the [plaintiffs] workers’ compensation benefits.
      “34. Said exhibit KK does not describe the type of benefits to which it would apply. It does not address a disagreement with the [plaintiffs] understanding that the moratorium would apply only to specific disability benefits.
      “35. UPON REVIEW OF ALL THE EVIDENCE BEFORE ME, I AM SATISFIED, CONCLUDE AND FIND that there was a 'moratorium’ agreement between the [plaintiff] and tire second injury fund; however, there is a disagreement toward which benefits the moratorium would apply at this time.
      “36. IT IS FURTHER FOUND that the agreed moratorium would apply to specific disability benefits for 108 weeks.
      “37. IT IS FURTHER FOUND that at the time of the moratorium discussions, at least one of the parties was not aware that the [plaintiff] was temporarily totally disabled.”

       Essentially, the fund stands in the shoes of the employer. See Casey v. Northeast Utilities, 249 Conn. 365, 377, 731 A.2d 294 (1999).