text:
    STATE OF CONNECTICUT v. ROBERT G. DENYA
    (AC 27540)
    Gruendel, Harper and Berdon, Js.

      Argued January 8
    officially released May 20, 2008

      David R. Kritzman, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Robert G. Denya, appeals from the trial court’s judgment modifying the terms of his probation. The defendant claims that the court abused its discretion by requiring him to submit to electronic monitoring continuously for the duration of his probation absent any showing of good cause. We agree and reverse the judgment of the trial court.

The following relevant facts and procedural history are not in dispute. In December, 1998, the defendant pleaded guilty to three counts of risk of injury to a child in violation of General Statutes § 53-21 and three counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a. The court accepted the pleas and found the defendant guilty of these crimes. In March, 1999, the court imposed a total effective sentence of ten years incarceration, suspended after three years, followed by ten years of probation with special conditions. The court ordered the defendant to participate in any sex offender treatment or counseling deemed necessary by the office of adult probation and to register as a sex offender. The court prohibited him from having any contact with any children younger than age sixteen, the victim or any member of the victim’s family.

In March, 2001, the defendant was released from incarceration and began serving the probation portion of his sentence. In January, 2004, the defendant was arrested and charged with violating the terms of his probation on at least two specific occasions. The matter was tried before the court, MuUarkey, J., which found that, on one occasion, the defendant was visiting an acquaintance in South Windsor at the residence she shared with a family that included two children who were younger than age sixteen. On that occasion, the defendant remained in the residence for approximately two hours with the children after they returned home from school. The court also found that, on another occasion, the defendant, who provides wallpapering services by profession, provided an estimate for and worked in a residence knowing that an eleven year old girl resided there with her family.

At the end of the adjudicative phase of the proceeding, the court found that the defendant had violated the special conditions of his probation but classified the two violations as technical in nature. There was no allegation, nor any evidence, that the defendant had engaged in any type of sexual or likewise inappropriate conduct during these separate incidents. The court, however, found that the defendant had lied about these incidents to his probation officer, Frank Jeney. The evidence was uncontroverted that Jeney instructed the defendant not to take jobs in any home where a child resided and that he was to maintain for review by Jeney an activity log, attesting to his whereabouts when away from home. When Jeney learned about the incident in South Windsor and confronted the defendant, the defendant first told Jeney that he was never in the residence when the children were there and, later, stated that he had immediately departed from the residence as soon as the children returned home from school. Additionally, the evidence was uncontroverted that the defendant informed Jeney about the job in West Hartford but, in his activity log, concealed the fact that there was at least one child living at that residence.

In the dispositional phase of the violation of probation proceeding, the court described the two instances as more than incidental in nature. The court deemed the incidents to be quite troublesome because the defendant attempted to conceal them from Jeney and, with regard to both instances, they occurred in a residence where children lived rather than in a public place. The court stated that “this deceptive behavior on his part makes the court believe that the rehabilitative and beneficial aspects of probation are no longer being met.”

In an oral ruling, the court stated: “I am going to reopen the original sentence [and] reimpose the original sentence of ten years, suspended after three. However, I am going to increase the probation to the maximum term of thirty-five years as well as order sex offender registration, which, in your case, can be for life . . . [a]s well as giving a DNA [sample] and other identification samples to the department of public safety. My point here is, by my calculations, even if I gave you the maximum sentence today, you would be out in 5.9 years. This probation will carry you until you are eighty-nine.

“[A] condition of that probation is you will not have any contact directly [or] indirectly with the victim, her family, including her grandmother. You will not go within one mile of their residences, places of work, places of recreation and those places [of] schooling. Those places will change probably over the next thirty-five years. . . . [Y]ou have already served two years of probation, [so your term of probation will] be about thirty-three years. And the [office of adult] probation . . . will update [the victim and her family],

“Number two, you will submit to and pay for such electronic digital global positioning or whatever other service probation deems appropriate, and if they deem you capable, you will pay for such service to enforce the restrictions on your going anywhere near this family.

“As far as your work is concerned, you are banned from working or estimating your jobs in private residences, schools, day [care] centers, parks and [recreation] or any other place where children, that means, in this instance, people under the age of eighteen, may live, engage in recreation, schooling, job training.

“You will take such sex offender counseling and treatment as deemed appropriate, continue with [William Hobson, a sex offender treatment provider] and such additional or different treatment as determined necessary by the probation [office] after they hear from him.

“No one, including Mr. Hobson, is allowed to modify any of your probation [conditions]; only a judge is. So that if Mr. Hobson determines that you can reside in a house where children are or something else, then you have to contact your probation officer and, or, your attorney, come back to court, some judge will have a hearing and decide. . . . [Mr. Hobson] can’t modify probation, only a judge can.” Finally, the court set specific guidelines concerning the defendant’s visits with his granddaughter.

The court subsequently issued a written order of probation that was signed by a court clerk. The order set forth the several conditions of probation imposed by the court at the conclusion of the dispositional phase of the violation of probation proceeding. As relevant, the order, dated October 1, 2004, contained the following language: “It is ordered and adjudged that . . . the defendant must submit to and pay for any electronic/ digital monitoring as deemed appropriate by the office of adult probation . . . .” The defendant did not appeal from the court’s judgment.

On December 15, 2005, the state filed a pleading entitled “Motion to Modify Probation,” the body of which states: “Pursuant to Connecticut Practice Book [§] 43-29A, the [s]tate respectfully requests this [c]ourt [to] modify [the defendant’s] probation. The [s]tate requests probation return [the defendant] to electronic monitoring.” The court, Mullarkey, J., subsequently held a hearing concerning the state’s motion to modify. During that hearing, the prosecutor represented that, in September or October, 2005, she learned from the victim’s attorney that the office of adult probation had discontinued its electronic monitoring of the defendant and that she was unsuccessful in her attempts to have such monitoring reinstated. The prosecutor stated that the court, in its 2004 ruling, had not afforded the office of adult probation discretion to terminate electronic monitoring but merely discretion to determine what type of electronic monitoring system to utilize. Recalling, briefly and generally, the factual circumstances related to the violation of probation proceeding in 2004, the prosecutor stated that continuous monitoring of the defendant for the duration of his probation was desired by the state and the victim’s family as an objective way of keeping track of the defendant’s whereabouts. The state did not present any evidence in support of its motion.

The defendant’s attorney argued that the court had not ordered the defendant to submit to continuous electronic monitoring for the duration of his probation but had afforded the office of adult probation discretion with regard to the use of such monitoring during the probationary term. The defendant’s attorney represented that the defendant had paid for electronic monitoring until his probation officer told him that such monitoring was no longer required. The defendant’s attorney presented testimony from the defendant’s probation officer, Jeney. He- testified that, generally, the office of adult probation monitors probationers who must submit to monitoring for six months and, if such persons are compliant, electronic monitoring is no longer used. Jeney further testified that electronic monitoring of the defendant occurred for almost eight months, during which time the defendant was compliant. Jeney testified that he and his supervisor made the decision to terminate the monitoring and that he believed that the court, in its 2004 order, had given the office of adult probation discretion to make such a decision.

At the conclusion of the hearing, the court framed the issue before it, stating that its only task was to determine what it meant by the order it had issued following the violation of probation proceeding in 2004. On March 16, 2006, the court issued a memorandum of decision entitled, “Memorandum of Decision Rectification of Order of Probation Dated October 1, 2004.” The court stated in its ruling: “A review of [the] court’s notes of the October 1, 2004 hearing on the violation of probation, the sentencing transcript of that same date, the court monitor’s audiotapes of that same date and the order of probation lead to the following conclusions:

“(1) the order of probation issued on October 1,2004, is inaccurate;
“(2) this court did not sanction or intend that the [office] of adult probation monitor the location of the probationer with any lesser level of monitoring than that provided by current, continuous, passive global positioning system . . . tracking technology; and
“(3) this court also intended to give flexibility to the [office] of adult probation over the thirty-five year term of [the defendant’s] probation to accommodate technological developments which achieve at least the same level of continuous monitoring of [the defendant] as that provided by [global positioning system] technology.
“While this court does not fault in any way the [office] of adult probation for its interpretation of the order of probation, the [office] was working with an inaccurate order. The serious nature of [the defendant’s] convictions and violations involving actual and likely contacts with minors, as well as a pattern of deception with the [office] of adult probation, requires constant monitoring to protect both the victim in this case and to prevent opportunities for [the defendant] to have contact with more potential victims.” In conclusion, the court stated: “This court will issue a corrected order of probation accurately conveying the conditions of probation ordered on October 1, 2004.”

On March 16, 2006, the date of its decision, the court issued a corrected order of probation. With regard to the electronic monitoring condition at issue, the order provided: “No contact with victim, victim’s family, including grandmother, direct/indirect, not to go within one mile of victim’s/victim’s family residence, places of work, places of recreation, defendant to submit to and pay for (if deemed capable of paying by office of adult probation) electronic digital global positioning monitoring or other equally effective location monitoring service probation deems appropriate to enforce this restriction . . . .” Apart from this condition in the corrected order, the court slightly rephrased, yet did not appear to alter materially, corresponding conditions set forth in the 2004 order. This appeal followed.

The defendant claims that the court modified the electronic monitoring condition of his probation. Specifically, the defendant claims that, in 2004, the court ordered him to submit to electronic monitoring at the discretion of the office of adult probation and that, by its 2006 order, the court required him to submit to electronic monitoring continuously for the duration of his probation. Essentially, the defendant claims that the court abused its discretion in modifying this condition of his probation because there was no good cause shown in support of the modification.

The state argues that the court merely clarified the conditions of probation that had existed since 2004. The state maintains that, in 2004, the court ordered the defendant to submit to electronic monitoring continuously for the duration of his probation and that he did not object to that condition of probation at the time of sentencing. Accordingly, the state argues that the defendant did not preserve any objection to that condition. The state further argues that there were compelling reasons in support of the court’s decision to impose this condition at the time of sentencing in 2004, and, thus, the court did not abuse its discretion.

As a preliminary matter, we must resolve the issue of whether the 2006 judgment, from which the defendant appeals, modified or clarified the 2004 judgment. In conducting this analysis, we are not persuaded by the fact that the state’s motion to modify initiated the proceeding that culminated in the judgment at issue. Regardless of the manner in which the state characterized its motion, “we must examine the practical effect of the trial court’s ruling in order to determine its nature. Only then can we determine whether the ruling was proper. ... A modification is defined as ‘[a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.’ Black’s Law Dictionary (6th Ed. 1990).” (Citation omitted.) Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995). “It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence. . . . There are a limited number of circumstances in which the legislature has conferred on the trial courts continuing jurisdiction to act on their judgments after the commencement of sentence . . . .” (Citation omitted; internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153-54, 913 A. 2d 428 (2007). One such circumstance is governed by General Statutes §§ 53a-29 through 53a-34, which permit a trial court to modify the terms of probation after a sentence is imposed, provided that specified conditions are present.

“Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial coruts and are procedurally proper. ... A motion for clarification may be appropriate where there is an ambiguous term in a judgment . . . but, where the movant’s request would cause a substantive modification of an existing judgment, a motion to open or to set aside the judgment would normally be necessary. ” (Citations omitted; internal quotation marks omitted.) Rome v. Album, 73 Conn. App. 103, 109, 807 A.2d 1017 (2002). “There is no time restriction imposed on the filing of a motion for clarification. . . . [U]nder the common law, judgments may be corrected at any time.” (Citations omitted; internal quotation marks omitted.) Holcombe v. Holcombe, 22 Conn. App. 363, 366, 576 A.2d 1317 (1990). In exercising its power to clarify, a court may not change any matter of substance in a prior order. Id.; see also Miller v. Miller, 16 Conn. App. 412, 415-16, 547 A.2d 922 (substantive modification of lump sum alimony award deemed improper exercise of power to clarify), cert. denied, 209 Conn. 823, 552 A.2d 430 (1988).

Assessing the practical effect of the 2006 judgment requires us to construe not only that judgment but the 2004judgment as well. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of the judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Citations omitted; internal quotation marks omitted.) Fenton v. Connecticut Hospital Assn. Workers’ Compensation Trust, 58 Conn. App. 45, 51-52, 752 A.2d 65, cert. denied, 254 Conn. 911, 759 A.2d 504 (2000). “[W]e must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.” (Internal quotation marks omitted.) Racsko v. Racsko, 102 Conn. App. 90, 92, 924 A.2d 878 (2007). “[I]t assists a reviewing court to keep in mind the theory on which the case was tried and on which the trial court decided it.” Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 428, 689 A.2d 1154 (1997). “Our inquiry in interpreting the meaning of judgments is limited to that which is either expressed or implied clearly. . . . Simply put, the issue is not the trial court’s unstated intention but the intention of the trial court as gathered from all parts of the written judgment.” (Citation omitted; emphasis added.) Emerick v. Emerick, 28 Conn. App. 794, 806, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). Thus, “the testimony of the judge who presided over the . . . proceedings regarding his intent in entering . . . orders could not be considered in construing the . . . judgment . . . .” Id.

We have thoroughly reviewed the court’s oral decision following the violation of probation proceeding in 2004, as well as the court’s contemporaneous written order of probation. The plain language at issue in the court’s ruling and its order leaves the requirement of electronic monitoring to the discretion of the office of adult probation with the caveat that, if such monitoring is deemed appropriate, the defendant must bear the expense of it if he is capable of doing so. Neither the court’s ruling nor its order evidence an intent that the defendant submit to continuous electronic monitoring, regardless of the specific type of electronic monitoring, for the duration of his probation. Further, apart from the language used by the court, nothing in the circumstances surrounding the 2004 judgment, as they appear in the record, reflects an intent to impose electronic monitoring continuously for the duration of the probation.

The court, however, in its 2006 judgment, clearly imposed as a condition of probation that the defendant submit to electronic monitoring continuously for the duration of the probation. In rendering judgment, the court expressed its intent to rectify its 2004 order, which it deemed to be inaccurate with regard to the electronic monitoring condition. At the hearing on the state’s motion to modify, both parties, as well as the defendant’s probation officer, advanced differing interpretations of the electronic monitoring condition that was part of the 2004 judgment. At the conclusion of the hearing, the court indicated that its task was to determine what it meant by its order and, following its subsequent decision, issued a corrected order of probation.

Our construction and comparison of the two judgments at issue leads us to conclude that the 2006 judgment modified the earlier judgment and, thus, the conditions of probation. The judgment from which the defendant appeals introduced a new detail, which was the requirement that he submit to continuous electronic monitoring for the duration of his probation rather than electronic monitoring at the discretion of the office of adult probation. We do not agree that the court provided meaning to any ambiguous provision of its earlier judgment. Instead, we conclude that the court added a matter of substance that undeniably imposed an additional burden on the defendant during a lengthy term of probation. We reach this conclusion mindful that the court clearly expressed its intent merely to rectify what it deemed to be an inaccurate order issued in 2004. The court’s intent, apparent in the record, is significant to our understanding of the judgment at issue. It is, however, not dispositive of the issue of whether the court’s decision constituted a modification of its earlier judgment, the issue before us. Having concluded that the court modified the defendant’s probation in 2006, we next consider whether the court abused its discretion in doing so.

“[Probation is, first and foremost, apenal alternative to incarceration .... [Its] purpose ... is to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. . . . [Probationers .. . do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. . . .

“The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate. ... In this regard, modifications of probation routinely are left to the office of adult probation. When the court imposes probation, a defendant thereby accepts the possibility that the terms of probation may be modified or enlarged in the future pursuant to [General Statutes] § 53a-30.” (Citations omitted; internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 180-81, 842 A.2d 567 (2004); see also State v. Crouch, 105 Conn. App, 693, 699, 939 A.2d 632 (2008). “Probation is the product of statute. . . . Statutes authorizing probation, while setting parameters for doing so, have been very often constructed to give the court broad discretion in imposing conditions. . . . The significant role of statutes and the broad discretion usually accorded courts in administering the probation process means not only that statutory limitations must be observed but also that the impact of constitutional norms must be carefully evaluated.” (Citations omitted.) State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). “In keeping with the continuing supervision and authority given [to] the court under the [relevant statutory law], the court could modify or enlarge the conditions whether any such condition had been imposed at the time of sentencing or otherwise.” (Internal quotation marks omitted.) Id., 169.

General Statutes § 53a-30 (a) sets forth various conditions of probation that the court may order “[w]hen imposing sentence of probation . . . .” That statute provides in relevant part that a defendant may “be subject to electronic monitoring, which may include the use of a global positioning system . . . .” General Statutes § 53a-30 (a) (14). Interpreting § 53a-30 (a), our Supreme Court has stated: “It contains no language restricting the time in which a court may impose the condition of probation. Indeed, the only restriction that § 53a-30 (a) places on the court is the range of conditions that it can impose, namely, those enumerated in the statute. In short, the statute does not implicate the power of the trial court to impose a condition of probation but merely sets forth the conditions of probation that may be imposed.” State v. Fowlkes, 283 Conn. 735, 746-47, 930 A.2d 644 (2007).

General Statutes § 53a-30 (c) provides in relevant part: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period [of probation]. . . . The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.” (Emphasis added.) By its unambiguous terms, this subsection empowers a court to modify or to enlarge the conditions of probation at any time during the probation, provided that such order occurs after a hearing and upon a showing of good cause. See General Statutes § 53a-30 (c).

We afford a trial court’s decision to modify the conditions of probation broad discretion. See State v. Medley, 48 Conn. App. 662, 665, 711 A.2d 1191, cert. denied, 245 Conn. 915, 718 A.2d 19 (1998). The parties, however, disagree as to what proceedings or considerations properly weighed into the court’s exercise of discretion in this case. While disputing that the court modified any condition of probation in 2006, the state nonetheless maintains that good cause existed to modify probation in 2006 because the court always intended that the defendant submit to electronic monitoring for the duration of his probation. The state appears to argue that the court was free to rely entirely on its view of the evidence that had been presented at the violation of probation proceeding in 2004 in determining whether good cause existed to impose the condition of continuous electronic monitoring in 2006. The defendant argues that, in determining the issue of good cause, the court was limited to evaluating any evidence presented at the hearing in 2006.

The resolution of this disagreement hinges on our interpretation of § 53a-30 (c). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Citations omitted; internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286-87, 939 A.2d561 (2008). Issues of statutory interpretation are afforded plenary review. See State v. Casiano, 282 Conn. 614, 620, 922 A.2d 1065 (2007).

The text of the statute is not ambiguous, and it is reasonably susceptible of only one interpretation. The phrase “after hearing and for good cause shown,” interpreted in the context in § 53a-30 (c), plainly applies to a court’s decision to modify probation. The statute mandates that a court conduct a hearing related to any decision to modify probation. Given that the decision to modify probation must be based on a showing of good cause, it also appears plain from the statutory language at issue that the hearing must be the forum in which the court explores the issue of whether good cause exists at the time the court is considering modifying the terms of probation.

The state suggests that good cause was demonstrated by the court’s statements that it had always intended that continuous electronic monitoring occur. It cannot be disputed that the court’s intent was not based on any evidence or findings made during the hearing that occurred prior to the modification but apparently was based on prior judicial proceedings concerning the defendant that occurred significantly before the hearing. To interpret the statute to permit such a showing of good cause would vitiate the requirement that good cause be shown at the time that the court is considering modification. Stated otherwise, to conclude that good cause need not be demonstrated or advanced at the hearing itself, on the basis of facts and circumstances existing at the time of the hearing, would effectively render superfluous the requirement that a hearing occur. “[W]e generally reject a construction that renders any portion of a statute superfluous . . . .” (Internal quotation marks omitted.) Evanuska v. Danbury, 285 Conn. 348, 361, 939 A.2d 1174 (2008). Such an outcome also raises obvious concerns related to the defendant’s right to challenge whether good cause, in fact, exists.

We have carefully reviewed what transpired during the hearing on the state’s motion to modify. Primarily, the parties advanced differing interpretations of the court’s 2004 order. The parties did not devote their argument to debating the merits of that order. Thus, the state argued that the court had ordered that the defendant submit to continuous electronic monitoring for the duration of his probation. In general terms, the prosecutor alluded to the factual circumstances proven at the time of the violation of probation proceeding in 2004, recalling that the defendant had, at that time, lied about his whereabouts. The prosecutor expressed her belief that the continuous monitoring was necessary as an objective method of verifying the defendant’s whereabouts and stated that the victim’s family desired to “live in peace.” The prosecutor did not present any evidence and did not suggest, either implicitly or explicitly, that the defendant had engaged in any wrongdoing since the time of the earlier proceedings in 2004. Indeed, the state concedes that the defendant did not engage in any conduct between 2004 and 2006 that would cause his probation to be modified.

At the hearing, the defendant’s attorney stated that the state was not basing its motion on any change of circumstances. He presented evidence from the defendant’s probation officer, Jeney, who testified that the defendant had been compliant during the approximately eight months that the probation office required the defendant to submit to electronic monitoring and that, after that time, his office determined that such monitoring was not necessary.

Although the court permitted the defendant to present Jeney’s testimony, it did so noting that Jeney’s testimony was not relevant to the issue presented— what the court meant in its earlier order. As we have discussed previously, when the court issued its decision concerning the state’s motion to modify, it did not find that the state had demonstrated good cause at the 2006 hearing. Instead, it relied entirely on its intent in issuing its order of probation in 2004.

On this record, it can hardly be disputed that the court did not base its decision to modify probation on good cause shown at, and existing at the time of, the hearing in 2006. In its appellate brief, the state aptly characterized that hearing as follows: “[T]he only issue at the rectification hearing was the meaning of the court’s oral pronouncement of the defendant’s global positioning system electronic monitoring condition of probation [in 2004].” It would be fundamentally unfair to any probationer for the court to modify probation on the basis of evidence or findings that the probationer could neither explore nor challenge at the hearing related to modification but which existed solely in the court’s mind. The court did not find that circumstances concerning the defendant had changed such that its prior order of probation was no longer serving its intended purposes but plainly based its decision on its own interpretation of its earlier ruling. Although the court enjoys broad discretion in modifying probation, it is limited to acting only on a showing of good cause. On the basis of the record before us, we must conclude that the court’s decision was not based on good cause and, therefore, cannot stand.

The judgment is reversed and the case is remanded with direction to vacate the order of probation dated March 16, 2006, and to render judgment denying the state’s motion for modification.

In this opinion the other judges concurred.

       The evidence presented at the hearing reflects that Jeney learned about the incident in South Windsor from a private investigator who was hired by the victim’s family to monitor the defendant’s activities. The investigator utilized recording devices to gather evidence concerning the defendant’s activities, including the incident in South Windsor.

       We note that the court did not expressly grant or deny the state’s motion for modification in its oral ruling. The court did not sign or mark the order page affixed to the state’s motion for modification.

       The defendant also claims in his appellate brief that the court’s 2006 ruling violated his right to substantive due process under the federal and state constitutions. The defendant expressly abandoned this claim at the time of argument before this court, and we do not address it in this opinion.

       Reasoning that the court clarified but did not modify its order of October 1, 2004, the state regards the present appeal to be untimely because it was not brought within the appeal period of the 2004 judgment. Although the state concedes that it has waived any objection related to the timeliness of this appeal, we note that, in light of our conclusion that the court modified its 2004 order, the state’s timeliness argument is without merit.

       We do not suggest that, in determining whether good cause exists at the time it is considering modification, a court may not to any extent rely on evidence presented and findings made in prior hearings concerning a probationer. Rather, we emphasize that the hearing related to modification must relate to the determination of whether good cause exists at the time of the hearing.


source: Caselaw Access Project

author: BISHOP, J. BEACH, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL K. CLARK
    (AC 28371)
    Bishop, Gruendel and Beach, Js.

      Argued February 15
    officially released May 20, 2008

      Margaret Gaffney Rodionovas, senior assistant state’s attorney, with whom, on the brief, were Micha,el Dearington, state’s attorney, and Marc G. Ramia, assistant state’s attorney, for the appellant (state).

      Annacarina Del Mastro, senior assistant public defender, for the appellee (defendant).
   Opinion

BISHOP, J.

The state appeals from the judgment of the trial court dismissing the information that charged the defendant, Michael K. Clark, with possession of drugs within 1500 feet of a school in violation of General Statutes § 21a-279 (d), sale of a controlled substance in violation of General Statutes § 21a-277 (b), illegal manufacture, distribution, sale, prescription or administration of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-278a (b) and operation of a drug factory in violation of General Statutes § 21a-277 (c). On appeal, the state claims that the court improperly granted the defendant’s motion to suppress all evidence seized as a result of his arrest because (1) the police did not subject the defendant to an illegal “stop” that constituted a seizure in violation of the state and federal constitutions, and (2) the evidence seized was in plain view. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On or about December 1, 2006, the defendant orally moved to suppress evidence that police found in his vehicle on the date of his arrest. At the suppression hearing, the state presented testimony from Detective Justen Kasperzyk and Officer Dennis O’Connell of the New Haven police department, both of whom were on duty on February 24, 2006. Kasperzyk testified as to the following facts. Sometime between 9 a.m. and noon, Kasperzyk received a telephone call from a confidential informant from whom he had previously received reliable information on the basis of which search warrants had been issued and arrests made. The informant told Kasperzyk that the defendant was selling drugs in the Hill section of New Haven. The informant further told Kasperzyk that the defendant was driving a tan Chevy Cobalt with Pennsylvania license plates. Kasperzyk knew the defendant from a prior arrest and because the defendant also had worked as an informant for another police officer.

When O’Connell arrived for duty between 3 and 4 p.m., Kasperzyk told him that they should go out in the Hill area and look for the Chevy Cobalt because he had received information that “this vehicle was selling marijuana.” Kasperzyk, O’Connell and Officer Daniel Sacco went in an unmarked police car to the Hill area of New Haven.

At approximately 5 p.m., the officers came upon a vehicle and an individual matching the description provided by the informant. Kasperzyk recognized the defendant as the operator of the vehicle. They followed the vehicle for a short distance until the defendant stopped behind several cars at a red traffic signal. There was also a car behind the defendant. Kasperzyk testified that he pulled up alongside the defendant’s car because “he felt it was safe enough, and he was tied with other cars where he couldn’t run and we didn’t have police cars to pull him over at that time. So, we pulled up next to him where he couldn’t get out, and the two officers got out of the car and told him to stop the car.”

O’Connell testified that when he approached the defendant’s vehicle, he asked the defendant to roll down his window. There was also a front seat passenger in the car. Although he did not orally identify himself as a police officer, O’Connell and the other officers were wearing sweatshirts or jerseys that said “Police” on them, and their badges were hanging on chains around their necks. O’Connell testified that when the defendant rolled down his window, he smelled marijuana and also saw a small black bag in the rear of the vehicle containing a few “sandwich bags with a green plant like substance in it, kind of like rolled a little bit, rolled up.” Following a field test confirming that the substance was marijuana, the defendant was arrested. When the police searched the defendant, he was found to be in possession of $612 in cash. Kasperzyk also found a large ziplock bag containing one pound of a green plant like substance in the trunk of the defendant’s vehicle that also tested positive for marijuana.

After hearing the evidence and the arguments of the parties, the court rendered an oral decision granting the defendant’s motion to suppress on December 5, 2006. The court determined that the officers’ conduct constituted a seizure that was not based on a reasonable and articulable suspicion. Thereafter, on the state’s motion, the court dismissed the charges because the state indicated that, without the suppressed evidence, it would be unable to proceed with the prosecution. The court granted the state permission to file this appeal.

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] . . . .” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). “Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights . . . we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). With these principles in mind, we turn to the state’s claims on appeal.

I

The state first claims that the police did not subject the defendant to an illegal “stop” that constituted a seizure in violation of the state and federal constitutions. The state contends that the court improperly found that the police action constituted a seizure because the stop was not effectuated by any show of authority or force on the part of the police but, rather, occurred because the defendant had stopped at a red signal in traffic and because a reasonable person in the defendant’s position would have believed that he was free to leave with the flow of traffic. The state further contends that even if the officers’ conduct constituted a seizure, the seizure was not unconstitutional because it was supported by reasonable and articulable suspicion. We are unpersuaded.

“When considering the validity of a . . . stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citation omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004).

Because our Supreme Court has interpreted the Connecticut constitution as affording broader protection than its federal counterpart when determining whether an individual has been seized, we will analyze the seizure issue under the stricter state standard. See State v. Oquendo, 223 Conn. 635, 652-53, 613 A.2d 1300 (1992). “We have . . . defined a person as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . Therefore, [w]hether there has been a seizure in an individual case is a question of fact.” (Citation omitted; internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 503-504.

In resolving the threshold issue of seizure, we are mindful that our analysis is dependent on the court’s factual determinations. Here, the court found that the officers blocked the defendant’s vehicle in a manner that was intended to, and had the effect of, restricting his freedom of movement. The court also found that the officers’ actions in immediately exiting their vehicle and approaching the defendant’s vehicle while asking him to roll down his window and wearing marked shirts and badges demonstrated their authority in such a manner that a reasonable person would not have believed that he was free to leave. Because the court’s findings are supported by the testimony presented, its determination that a seizure had occurred was not clearly erroneous.

We next turn to the question of whether the seizure of the defendant was based on a reasonable and articulable suspicion. “Under the fourth amendment to the United States constitution and article first, [§ 7] . . . of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.” (Internal quotation marks omitted.) State v. Thomas, 98 Conn. App. 542, 548, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007). An investigating officer may briefly stop a motorist if the officer has a reasonable and articulable suspicion that “criminal activity may be afoot . . . .” Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

“Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. ” (Internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997). Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances. State v. Nash, 278 Conn. 620, 641, 899 A.2d 1 (2006). “The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review.” (Internal quotation marks omitted.) State v. Thomas, supra, 98 Conn. App. 549.

“The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 504-505.

When a suspicion of criminal activity is based on a confidential informant’s tip, “an examination of the informant’s reliability (or veracity) and the basis of his or her knowledge should be regarded as highly relevant in determining whether, under the totality of the circumstances, probable cause existed.” (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 81, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).

Although the court found the informant reliable on the basis of Kasperzyk’s prior dealings with him, the court found that there was no basis for the informant’s knowledge. “With regard to an informant’s basis of knowledge, our Supreme Court has stated that [generally, it may be said that the surest way to establish a basis of knowledge is by a showing that the informant is passing on what is to him first-hand information . . . [as] when a person indicates he has overheard the defendant planning or admitting criminal activity . . . .” (Internal quotation marks omitted.) Id., 82. When the basis for an informant’s knowledge is not expressly made known to the police, a highly specific tip predicting future behavior can supply a significant indicia of reliability if significant aspects of the tip are independently corroborated by the police. Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). “The police . . . are not required to corroborate all of the information provided by a confidential informant. . . . Partial corroboration may suffice.” (Citations omitted.) State v. Leonard, 31 Conn. App. 178, 187, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7,1994). Corroboration of the physical description of a suspect, his car and the general section of town, although helpful to police in identifying a suspect, does not, however, corroborate the informant’s knowledge of criminal activity. Florida v. J. L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).

Here, the court found: “[Kasperzyk], who received the phone call from the [informant] testified that the [informant] told him that, and I quote from his testimony, ‘[The defendant] was selling marijuana in the Hill section of New Haven, and he was driving a tan Chevy Cobalt with Pennsylvania plates.’ These two bits of information were all that was given to [Kasperzyk]: one, [the defendant] was selling marijuana in the Hill and, two, what he was driving. There was no testimony as to how the confidential informant came across this information. There was no testimony that he or she observed the defendant selling any marijuana, and even if you assume that he or she did see the defendant selling marijuana, they gave no details as to what they saw transpire. The evidence shows no basis at all for the confidential informant’s knowledge. Did someone tell them? Did they—how did they know this? Knowing what the defendant is driving is hardly a basis for knowledge that he is involved in criminal activity.”

As the court properly noted, the informant did not indicate that he or she had observed any illegal activity. There also was no other indication of firsthand knowledge on the part of the informant, such as overhearing the defendant planning or admitting to selling drugs, and the informant did not demonstrate any knowledge of the defendant’s future behavior. In sum, the informant simply made the allegation to the officer without providing any information from which the officer could determine that the informant’s information was reliable. When the officers saw the defendant several hours after the call from the informant, they did not witness any illegal activity. The only information the police were able to corroborate before stopping the defendant was the identifying information that was unrelated to the informant’s knowledge of the defendant’s illegal activity. On the basis of the totality of the circumstances, the court properly concluded that the seizure of the defendant was not based on a reasonable and articulable suspicion.

II

The state also claims that even if the seizure of the defendant and the evidence was unconstitutional, the marijuana found in the backseat of the defendant’s vehicle was in plain view and was, therefore, not a result of the illegality. The state did not raise this argument before the trial court, nor did the court conduct any analysis or make any findings in this regard. Thus, we decline to address this claim because the record is inadequate for its review and also because it is being raised for the first time on appeal. See Kelley v. Commissioner of Correction, 90 Conn. App. 329, 335-36, 876 A.2d 600, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005).

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

BEACH, J.,

dissenting. I respectfully dissent. I agree with the majority that there was a Terry-type seizure under our state constitution, and I agree that the introduction into evidence of the seized items is not justified by the plain view doctrine. I part paths only on the question of whether the police officers had a sufficiently reasonable and articulable suspicion to justify the Terry-type seizure.

I accept, as do the majority and apparently both parties, the factual findings made by the trial court. As to this issue, the court found that Detective Justen Kasperzyk received a telephone call from a confidential informant between 9 a.m. and noon on February 24, 2006. The informant had provided reliable information in the past, and search warrants and arrest warrants had been issued on information provided by the informant. The informant told Kasperzyk that the defendant, Michael K. Clark, was selling drugs in the Hill section of New Haven and that he was driving a tan Chevrolet Cobalt with Pennsylvania license plates. Kasperzyk knew the defendant because of a prior arrest and because the defendant had worked as an informant for another officer.

Later that day, Kasperzyk and two other officers drove to the Hill area to look for the vehicle. They located a tan Chevrolet Cobalt with Pennsylvania plates at approximately 5 p.m. in the Hill neighborhood. Kasperzyk recognized the defendant as the operator of the automobile. Officers approached the car when it was stopped in traffic. The court found that there was a seizure at this point.

Though factual findings of a trial court are to be accorded great deference, the standard for our review of the legal conclusions of a trial court concerning whether a reasonable and articulable suspicion exists is plenaiy. State v. Foote, 85 Conn. App. 356, 363, 857 A.2d 406 (2004), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005). The test to be applied is whether, under the totality of the circumstances, the police had a particularized and objective basis for suspecting the particular person stopped of criminal activity. State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991). The reliability of the informer and the basis of the informer’s knowledge are important considerations and are highly relevant to the determination of whether a reasonable and articulable suspicion exists. Alabama v. White, 496 U.S. 325, 328-29, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); see also State v. Leonard, 31 Conn. App. 178, 186, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994). “[A] deficiency in one [factor, however] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability such as corroboration by the police. . . . The police, however, are not required to corroborate all of the information provided by a confidential informant. . . . Partial corroboration may suffice.” (Citations omitted; internal quotation marks omitted.) State v. Leonard, supra, 186-87.

This case presents a close question. The police received information from an informant who had provided reliable information in the past. The court found him to be reliable. The fact that the informant was known and reliable sets this case apart from cases in which the informant was anonymous. Cf. Florida v. J. L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). Tips from known, reliable informants require less verifying detail than tips from anonymous sources. See, e.g., Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (unverified tip from known informant sufficient to justify Terry-type stop). Details given by the informant describing the automobile with great particularity and some distinctiveness were corroborated by police observation. Although the police did not observe the defendant engage in any criminal behavior, the informant’s tip predicted, if somewhat generally, the location of the car and, with particularity, the association of the defendant with the car. When the police were able to corroborate the details, they reasonably could infer that however the informant came by his information, the tip was reliable. Finally, the police had independent information regarding prior criminal activity by the defendant. When the facts are totaled, I believe that they support the conclusion that the police acted on the basis of a reasonable and articulable suspicion sufficient to justify the minimally intrusive initial stop that subsequently occurred. Although any one of these factors may not by itself constitute sufficient suspicion of illegal conduct, when taken together, they amount to a reasonable and articulable suspicion. See State v. Leonard, supra, 31 Conn. App. 178. This court’s review is plenary, and, accordingly, I would conclude that the trial court improperly determined that the seizure of the defendant was not based on a reasonable and articulable suspicion. I would reverse the judgment of the trial court and would remand the case with direction to deny the defendant’s motion to suppress and for further proceedings according to law.

1 respectfully dissent.

       Kasperzyk testified that the informant also gave him the license plate number, but he could not recall it at the time he testified.

       In contrast, “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement . . . through means intentionally applied .... Thus, an unintended person . . . [may be] the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing ad.....A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure so far as the Fourth Amendment is concerned.” (Citations omitted; internal quotation marks omitted.) Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).

       The state contends that the court applied the wrong test in resolving this issue. This claim is, however, without merit. The court specifically noted the totality of circumstances test in its decision, and because the reliability and veracity of the tipster are significant factors in that test, the court was entitled to rely heavily on them.

       See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       The facts of this case closely parallel those found sufficient in State v. Leonard, supra, 31 Conn. App. 186-88, to support a stop pursuant to Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


author: GRUENDEL, J.

text:
    REGINALD HARRIS v. COMMISSIONER OF CORRECTION
    (AC 28282)
    DiPentima, Gruendel and Stoughton, Js.

      Argued March 14
    officially released May 20, 2008

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      ToniM. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Edward R. Nanos, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Reginald Harris, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court improperly concluded that (1) his challenges to the legality of his sentence lacked merit and (2) his trial counsel provided effective assistance. We affirm the judgment of the habeas court.

The facts underlying this habeas appeal are set forth in State v. Harris, 28 Conn. App. 474, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992). “At about 6:30 p.m. on October 12,1989, the victim, Timothy Wallace, age eighteen, was walking with a friend, Eugene Finley, on Collins Street in Hartford. As they turned onto Huntington Street, they observed three men on the other side of the street. The three men crossed the street and came up behind the victim and Finley. The victim turned and saw that one of the men had grabbed Finley and was telling Finley to leave the area. As Finley left, one of the men put a gun to the victim’s head and another of the men, the shortest one, flicked the victim’s glasses off. The man who had put the gun to the victim’s head grabbed the victim’s arm and ordered him to keep walking. The [petitioner], who was the tallest of the three and wearing a brown trench coat, carried a sawed-off shotgun and a duffel bag. The [petitioner] walked on the victim’s right side and the shortest man walked behind. They crossed several intersections and finally stopped in front of 122 Huntington Street. When they stopped, the man who had put the gun to the victim’s head told the victim to take off his jacket, which was a green Whalers jacket. The victim complied. The man then ordered the victim to give him his watch and the victim again complied. The man then struck the victim on the nose with the butt of the gun, fracturing the victim’s nose and causing him to fall backwards onto the sidewalk. As the victim attempted to get up from the sidewalk, the [petitioner] pushed him back down and struck him in the eye with the shotgun. The shortest man then demanded money and reached into the victim’s pocket and removed approximately $54. The [petitioner] then said, ‘Let me shoot him,’ but one of the other men advised against it. The victim was then told to leave at which point he ran to a friend’s house.

“Shortly thereafter, the victim notified the police and gave them a description of the three men. Within a short time the police saw three men who fit the description given by the victim. The [petitioner], who was one of the three men spotted, was carrying a shotgun. All three men were taken into custody and the police recovered a sawed-off shotgun, a duffel bag, and a green Whalers jacket from them. The next day, the victim went to the police station where he identified all three men from photographs.” Id., 475-76.

The petitioner was arrested and charged in separate informations with robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-8, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48 (a) (first information), and possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a) (second information). The charges subsequently were joined, and the petitioner’s case was tried in conjunction with those of codefendants Keith Johnson and Duane Saunders. Following trial, the jury found the petitioner guilty on all counts. The court thereafter sentenced the petitioner to a total effective term of twenty-eight years incarceration.

In an amended petition for a writ of habeas corpus, the petitioner claimed that (1) his confinement was illegal for a variety of reasons, (2) his trial counsel provided him ineffective assistance, (3) his appellate counsel provided him ineffective assistance and (4) he was innocent of the crimes of which he was convicted. The latter two claims were withdrawn with prejudice at his habeas trial. The only witness called by the petitioner at that trial was attorney Margaret Levy, his trial counsel. Although the respondent, the commissioner of correction, introduced documentary evidence, she presented no witnesses. In its memorandum of decision, the court concluded that the petitioner had not met his burden of proving ineffective assistance of counsel and that his challenges to the legality of his confinement lacked merit. Accordingly, the court denied the petition. From that judgment, the petitioner appeals.

I

The petitioner first assails the legality of his confinement. He presents a number of claims in this regard, all of which the court concluded were without merit. Specifically, the petitioner alleges that (1) he was illegally convicted of conspiracy to commit robbery in the first degree as an accessory, (2) his conviction violates Wharton’s rule, (3) his conviction of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree violates the prohibition against double jeopardy, (4) he was illegally convicted of possession of a shotgun as an accessory, (5) his consecutive sentences for robbery in the first degree as an accessory and for conspiracy to commit robbery in the first degree are illegal and (6) his sentence on incorrect docket numbers constituted a substantive defect. His claims are unavailing.

Preliminary, we note the applicable standard of review. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). To the extent that factual findings are challenged, “this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lants, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006). “[A] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 742, 937 A.2d 656 (2007).

A

The petitioner first claims that he was illegally convicted of both robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree as an accessory. To the contrary, the court found that the petitioner was not convicted of conspiracy to commit robbery in the first degree as an accessory. Rather, it stated in its memorandum of decision that the petitioner had been convicted of conspiracy to commit robbery in the first degree under §§ 53a-134 (a) (2) and 53a-48 (a). That finding was supported by the testimony of Levy, who stated that the petitioner had not been convicted of conspiracy as an accessory because the jury never was charged that it could find him guilty of conspiracy as an accessory. The petitioner offered no evidence to contradict that testimony. As such, we cannot conclude that the court’s finding was clearly erroneous.

B

The petitioner next contends that his conviction violates Wharton’s rule. “Wharton’s rule provides that [a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. . . . The United States Supreme Court has explained the reason for barring convictions of both conspiracy and the crime underlying the conspiracy when the rule applies. Wharton’s rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Baker, 195 Conn. 598, 607, 489 A.2d 1041 (1985).

In Baker, the defendant claimed that he could not be convicted of both a substantive offense as an accessory and conspiracy to commit the substantive offense. Our Supreme Court disagreed: “In arguing for the applicability of Wharton’s rule, the defendant states that he was not charged with committing the substantive offense of arson in either count. He [was] charged as an accessory in the first count and as a conspirator in the second count. The defendant’s mischaracterization of the charges leads him to an erroneous result. There is no such crime as being an accessory; the defendant was charged with the substantive offense of arson. The accessory statute merely provides alternate means by which a substantive crime may be committed. The substantive crime of which the defendant was convicted, arson in the second degree, does not require the participation of two persons for its commission or any type of collective criminal activity. The fact that, as in this instance, two persons were involved in the crime does not implicate Wharton’s rule.” (Emphasis in original; internal quotation marks omitted.) Id., 607-608.

That reasoning applies with equal force to the present case. Although the petitioner was charged with robbery in the first degree as an accessory, that fact does not require reversal of his accompanying conviction of conspiracy to commit robbery in the first degree. The substantive crime of robbery in the first degree plainly does not require the participation of two persons for its commission. As a result, the petitioner’s claim fails.

C

The petitioner claims that his conviction of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree violates the prohibition against double jeopardy. In State v. Fudge, 20 Conn. App. 665, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990), this court squarely rejected that precise claim. We stated: “The defendant’s claim implicates that strand of double jeopardy jurisprudence that protects against multiple punishments for the same offense. . . . The defendant’s double jeopardy rights are violated only if the charges arise out of the same act or transaction and the crimes charged are in fact the same offense. . . . Our analysis here focuses on the second prong. It is fundamental constitutional law that where the charges arise out of the same transaction, they are not the same offense for double jeopardy purposes if each statute requires proof of a fact that the other does not. . . . The conspiracy charge required proof of an agreement, and the accessory to robbery charge did not. The accessory to robbery charge required proof of an actual larceny, and the conspiracy charge did not. The defendant tries to surmount this obstacle by arguing that participation in a robbery as an accessory necessarily requires an agreement between the participants. This argument is flawed. One element of the separate and distinct crime of conspiracy is an unlawful agreement. There is, however, no such crime as being an accessory. . . . The defendant is charged with committing one substantive offense; [t]he accessory statute merely provides alternate means by which a substantive crime may be committed. ... It has long been the law of this state that there is no practical distinction in being labelled an accessory or a principal for the purpose of determining criminal responsibility. . . . Thus, the substantive crime with which the defendant was charged was robbery, and an agreement with another person is not an element of robbery.” (Citations omitted; internal quotation marks omitted.) Id., 669-70. In light of that controlling precedent, we agree with the court that the petitioner’s claim is meritless.

D

Likewise, the petitioner’s contention that his consecutive sentences for robbery in the first degree as an accessory and for conspiracy to commit robbery in the first degree are illegal also lacks merit. He claims that both charges stem from the same event, thereby implicating the prohibition against double jeopardy. Because accessorial liability is not a substantive offense; see id.; that argument is futile.

Furthermore, although he cites State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), and states that “where the lesser offense results in additional punishment, the sentence will not stand,” he does not identify any offense that was a lesser included offense of another charge of which he was convicted. He further offers no analysis of that claim. As we frequently have observed, “[ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citation omitted; internal quotation marks omitted.) Shore v. Haverson Architecture & Design, P.C., 92 Conn. App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006). Accordingly, we decline to address that claim.

E

The petitioner also alleges that he was illegally convicted of possession of a shotgun as an accessory. Again, his claim is contrary to the finding of the court, which stated in its memorandum of decision that the petitioner was convicted under § 53a-211 (a). At the habeas trial, the respondent introduced into evidence the long form information on the possession charge, the criminal docket sheet and the judgment file on the possession charge, none of which references § 53a-8 or the petitioner’s having been charged or convicted as an accessory. Moreover, Levy testified that the only evidence at trial regarding possession was that the petitioner had had the shotgun at all times. In light of the foregoing, the finding that the petitioner was convicted of possession of a sawed-off shotgun, rather than possession of a sawed-off shotgun as an accessory, is not clearly erroneous.

F

The petitioner claims that his sentence on allegedly incorrect docket numbers constituted a substantive defect. Lie premises his argument on the fact that at the beginning of trial, the courtroom clerk incorrectly referenced the five digit part A docket numbers when reading the informations to the jury. As a result, the petitioner posits that he “had no way of knowing exactly what he was being charged with or that the weapons charge was from a separate incident” and alleges that “there was confusion about which defendants did what and which defendants were being charged with what crimes.”

That argument is undermined by Levy’s testimony that she was aware of the three charges filed against the petitioner, that the charges arose from two files and that the charges were to be tried together. Levy never indicated that the clerk’s incorrect references to the docket numbers confused either her or the petitioner. Furthermore, the respondent introduced into evidence the long form information on the possession charge, the criminal docket sheet and the judgment files, all of which contained the correct docket numbers. Finally, and most significantly, the petitioner presented no evidence whatsoever indicating that he lacked notice of the charges against him or that the clerk’s incorrect reference to the docket numbers confused him. Faced with that dearth of evidence, we agree that the petitioner’s claim is without merit.

II

The petitioner also argues that he was denied effective assistance of counsel. He claims that his trial counsel rendered ineffective assistance by failing to object to the joinder of the charges contained in the first and second informations. We do not agree.

“The standard of review for a challenge to a court’s denial of a petition for a writ of habeas corpus based on a claim of ineffective assistance of counsel is well settled. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel’s representation fell below an objective standard of reasonableness . . . and (2) that defense counsel’s deficient performance prejudiced the defense. . . . The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. ... In determining whether such a showing has been made, judicial scrutiny of counsel’s performance must be highly deferential. . . . The reviewing court must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. . . . The second part requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn. App. 144, 150-51, 868 A.2d 787, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). With that standard in mind, we consider the petitioner’s specific claim.

The petitioner claims that trial counsel rendered ineffective assistance by failing to object to the joinder of the charges contained in the first and second informations. Under Connecticut law, “[w]henever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” General Statutes § 54-57; see also Practice Book § 41-19. Our Supreme Court “consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges.” (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 521, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). Further, “[w]here evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.” (Internal quotation marks omitted.) Id., 520.

The petitioner argues that the charge of possession of a sawed-off shotgun should have been tried separately from the robbery and conspiracy charges. He maintains that “[i]f the cases were separate and no weapon was produced [at the trial on the robbery and conspiracy charges], given that the arrest happened within [one] hour of the robbery, it is likely the jury would have concluded that the state had not shown that a deadly weapon was used. Otherwise, [the police] would have recovered one from the robbers.”

The infirmity in that argument is the fact that absent joinder of the charges, the shotgun would have been admissible in the robbery and conspiracy case. “[A]ll that is required before a weapon may be introduced into evidence is a sufficient foundation demonstrating circumstances justifying an inference of the likelihood that the weapon was used in the course of the crime charged. . . . The [state] is not compelled to establish that the particular weapon to be introduced was the actual weapon used in the commission of the crime.” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 551, 673 A.2d 1117 (1996); see also State v. Piskorski, 177 Conn. 677, 696, 419 A.2d 866 (in light of evidence connecting it to case, shotgun possessed by defendant admissible despite fact that state did not scientifically establish it was used in commission of crimes), cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

In the present case, the court explained how the circumstances justified an inference of the likelihood that the weapon was used in the course of the crime charged: “The petitioner seems to be advancing the theory that evidence used to prove one crime cannot be used to prove another. Unfortunately, this simply is not true. It is true that the shotgun was recovered from the person of the petitioner and that this formed the basis for the criminal possession of a shotgun charge. Nevertheless, the evidence was such that the shotgun was clearly admissible against the petitioner in the robbery case as well. Indeed, any attempt by the petitioner’s trial defense counsel to try and limit the use of the shotgun would have been singularly unsuccessful. There was testimony that a shotgun was used during the robbeiy, testimony describing the shotgun by the victim, and the petitioner was apprehended a very short time after the robbeiy in possession of a shotgun that matched the victim’s description. While there is, of course, a remote possibility that this weapon was not one and the same as used in the robbery, there was more than enough circumstantial evidence to permit the jury to draw the logical conclusion that [it] apparently did.”

In addition, the respondent relies on § 4-5 (b) of the Connecticut Code of Evidence as a further basis for the admissibility of the shotgun at trial. Section 4-5 (b) provides in relevant part that “[e]vidence of other crimes, wrongs or acts of a person is admissible . . . 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.” Under that section, admission of the shotgun into evidence at the trial on the robbery and conspiracy charges likely would corroborate the victim’s testimony and would be probative of the elements of the other charges, namely, being armed with a deadly weapon.

When counsel for the petitioner at the habeas trial suggested that the shotgun would not have been before the jury had joinder of the charges not occurred, Levy responded: “[C]ertainly, under any circumstances, the testimony about the robbery of [the victim] would have included details, specific testimony regarding a shotgun, which was in the same condition with what appeared to have been duct tape, the way it was described by [the victim], gray tape around the base of the weapon. So, I think it would have been very clear that a shotgun, and in fact, the same shotgun [as later found on the petitioner] had been involved.” For that reason, Levy testified that she did not object to the joinder of the charges against the petitioner because she “didn’t believe that [it] was legally supportable or that there was a chance that [it] would be granted.” Because the petitioner did not “introduce any proof into this habeas case that would permit the court to conclude that [Levy] had any viable way” of preventing a joinder of the charges, the court concluded that the petitioner failed to prove deficient performance on her part. On our review of the record, we agree with that determination and, therefore, do not consider the question of resulting prejudice. See Strickland v. Washington, supra, 466 U.S. 697 (reviewing court need not “address both components of the inquiry if the [petitioner] makes an insufficient showing on one”); Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991) (reviewing court can find against petitioner on either prong of Strickland).

The judgment is affirmed.

In this opinion the other judges concurred.

       For a quarter century, the Whalers were a professional hockey team located in Hartford. In 1997, to the disappointment of many a Whalers fan, the franchise moved to Raleigh, North Carolina.

       The court subsequently granted the petition for certification to appeal.

       After concluding that the petitioner’s challenges to the legality of his confinement lacked merit, the habeas court noted that the petitioner had filed a motion with the trial court to challenge the legality of his sentence, which was denied. The court then stated that the petitioner would be “estopped from raising those same issues” in the habeas proceeding. We disagree with the petitioner that the fact that the court used the word “estopped” necessarily means that it applied the estoppel doctrine in the present case. Rather, the reference merely was passing commentary unnecessary to its holding. Absent from the court’s memorandum of decision is any finding of estoppel or analysis thereof. Despite that absence, the petitioner did not file a motion for articulation pursuant to Practice Book § 66-5, thereby rendering the record inadequate to review that issue. See, e.g., King v. Commissioner of Correction, 73 Conn. App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).

       In her return, the respondent did not raise the affirmative defense of procedural default.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . .
      General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The petitioner did not introduce into evidence the transcript of the trial court’s September 24, 1990 jury charge.

       The petitioner neither cited nor discussed the Fudge decision in his principal brief. When the respondent in her brief argued that Fudge was controlling precedent, the petitioner did not respond in any manner by way of a reply brief. Furthermore, counsel for the petitioner did not address that precedent or withdraw his claim at oral argument.

       General Statutes § 53a-211 (a) provides in relevant part: “A person is guilty of possession of a sawed-off shotgun . . . when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches . . .

       General Statutes § 53a-8 (a) provides in relevant part: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. . . .”

       Although the petitioner asserts that his sentence on allegedly incorrect docket numbers also violates his rights to due process and to confrontation, he has offered no analysis of those assertions. Such cursory treatment without substantive analysis or legal citation does not constitute adequate briefing, and we deem those issues abandoned. See Shore v. Haverson Architecture & Design, P.C., supra, 92 Conn. App. 479.

       In his appellate brief, the petitioner additionally alleged that trial counsel rendered ineffective assistance by (1) failing “to keep the charging dockets separate and make certain [that he] was tried on the correct information,” (2) failing “to correct an illegal sentence,” and (3) “allowing for joinder with his codefendants and allowing the trial to proceed as a joint trial when one of the codefendants [pleaded] guilty.” Because the petitioner again has not provided any analysis of those particular claims, we deem them abandoned. See Shore v. Haverson Architecture & Design, P. C., supra, 92 Conn. App. 479.