author: DRANGINIS, J. LANDAU, J.,

text:
    STATE OF CONNECTICUT v. MARIANO ARLUK
    (AC 22246)
    Dranginis, Landau and Shea, Js.

      Argued September 23, 2002
    officially released February 18, 2003

      David G. Toro, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      Julia K. M. Conlin, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James R. Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Mariano Arluk, appeals from the judgments of conviction, rendered after a jury trial, of one count each of assault in the third degree in violation of General Statutes § 53a-61 (a) (l), reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), criminal violation of a protective order in violation of General Statutes (Rev. 1999) § 53a-l 10b, as amended by Public Acts 1999, No. 99-240, § 4, now § 53a-223, two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (l) and three counts of threatening in violation of General Statutes § 53a-62 (a) (2). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence the statement of his minor child to a police officer as a spontaneous utterance and (2) instructed the jury regarding the existence of a protective order. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 23, 1999, the defendant’s wife was driving her motor vehicle while the defendant sat next to her in the front passenger seat and their two children were in the middle bench seat in the back of the van. The defendant asked his wife if she ever had engaged in an extramarital affair. She denied committing any such act and started to laugh. The defendant accused her of sleeping with the entire Meriden police department. She continued to laugh and did not respond further to his allegations. The defendant then struck his wife on the side of her head while she was driving, causing her to swerve the van and to become dizzy temporarily. She was able to drive into an empty parking lot and stop the van safely.

The defendant then proceeded to engage in a profanity laced tirade against his wife in front of the children. The defendant also directed his rage toward the children and told them to “fucking shut up or I’ll kill your ass. ” He also threatened to kill his wife and then himself.

The wife did not attempt to calm her children, as she focused on getting back on the road and driving to the Meriden police station. After arriving at the police station, she stopped the van and continuously sounded its horn until the defendant exited the vehicle. Before the defendant left, his wife testified at trial, he said that she was not going to get away and that he would “fucking get [her] and kill [her.]” The defendant fled before the police responded. The wife also left without speaking to any members of the police department.

The wife drove to her parents’ home because she was afraid to go to her residence. Her mother, her father and her younger brother were present when she arrived. The defendant had called the home of his wife’s parents prior to her arrival, and yelled and screamed at her father. The father, angered by the defendant’s telephone call, had alerted the police, who arrived shortly thereafter. At that point, the wife’s parents, her younger brother and the police officers were unaware of the events that had occurred in the van between the defendant and the rest of his family.

While an officer was taking the brother’s statement regarding the threatening telephone call made by the defendant, one of the defendant’s children blurted out that the defendant had struck the wife. The wife then gave the police a sworn statement detailing the events that had occurred in the van. A police officer escorted the wife to her residence where several police officers and firefighters previously had arrived. After obtaining permission from the wife to open the door, they entered the home and arrested the defendant. As a result of those events, a judge of the Superior Court issued a protective order that instructed the defendant to refrain from threatening, harassing, assaulting, molesting or sexually assaulting his wife. It also prohibited the defendant from entering the family dwelling or any dwelling occupied by his wife.

On August 12, 2000, the defendant had a scheduled visitation period with his children. He returned the children to his wife at approximately 3 a.m. on August 13, 2000, approximately five hours late. Later, on the afternoon of August 13, 2000, the defendant called his wife and told her that he was going to take the children and threatened her if she tried to stop him. On August 14, 2000, pursuant to General Statutes § 46b-15, she obtained a civil restraining order that prohibited the defendant from having any contact with her or the children.

On August 20, 2000, the defendant called his wife and told her that he was coming to her residence to attend his son’s birthday party. She instructed him that he was not welcome, and that there was both a criminal protective order and a civil restraining order in effect against him. Nevertheless, he arrived at her residence, but he was not allowed inside. The defendant became irate and started hitting his motor vehicle with his fists. The defendant’s wife called the police, but the defendant left the residence prior to their arrival.

The police subsequently arrested the defendant. After a trial, the jury found the defendant guilty of eight of the eleven counts with which he had been charged, and the court sentenced him to an effective prison term of ten years incarceration, suspended after six and one-half years, and five years probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence the statement of his child to a police officer as a spontaneous utterance. Specifically, the defendant argues that the statement was made too long after the startling event and after the minor child’s emotional state had changed from fear and anxiety to anger. We disagree.

As an initial matter, we set forth the applicable legal principles that guide our resolution of the defendant’s arguments. “An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). “The excited [or spontaneous] utterance exception is well established. Hearsay statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant.” State v. Kelly, 256 Conn. 23, 41-42, 770 A.2d 908 (2001); Conn. Code Evid. § 8-3 (2); 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 97c, p. 949. “Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a prehminary question of fact to be decided by the trial judge. . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Shabazz, 246 Conn. 746, 766, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). Our Supreme Court has stated that “ [t]he ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.” (Emphasis added; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 128, 763 A.2d 1 (2000); C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.17.3, p. 619.

The following additional facts are necessary for the resolution of the defendant’s claim. On April 23, 1999, a police officer came to the wife’s parents’ home and took the wife’s father’s statement regarding the threatening telephone call made by the defendant. At trial, the wife testified that while the police were at her parents’ home, her four year old child blurted out that “daddy hit his mommy.” The defendant objected on the ground that the statement was inadmissible hearsay. Outside the presence of the jury, the wife testified that the child was attempting to get the attention of the police officer and the child’s uncle. Until that point, only the wife and the two minor children were aware of the incident that had occurred while she was driving the van.

She further testified that the defendant screamed at and threatened to kill the child. She stated that in front of the child, the defendant engaged in a violent confrontation during which he threatened to kill her. After the defendant left the van, his wife never spoke with the child or tried to calm him because she was focused on driving to the police station. She testified that approximately twenty to thirty minutes had elapsed from the time the defendant left the van until the child made his statement. The court admitted the statement under the spontaneous utterance exception to the hearsay rule.

In support of his claim, the defendant argues that the statement was made after an excessive amount of time had elapsed, thereby making the spontaneous utterance exception to the hearsay rule inapplicable. “The requirement that a spontaneous utterance be made under such circumstances as to negative the opportunity for deliberation and fabrication by the declarant . . . does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence.” (Emphasis in original; internal quotation marks omitted.) State v. McNair, 54 Conn. App. 807, 811, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999); C. Tait, supra, § 8.17.6, pp. 620-22. The amount of time between the event and the statement is not dispositive; the trial judge must weigh all the material facts. State v. Stange, 212 Conn. 612, 618, 563 A.2d 681 (1989). Our Supreme Court has stated that the “majority of the jurisdictions that have addressed the issue of the effect of the time interval between the startling occurrence and the making of the spontaneous utterance have recognized that an acceptable time interval cannot be specified. Each case must be decided on its particular circumstances.” Id. For example, in Stange, the time period between the event and the statement was fifteen to thirty minutes. Id., 614 — 15; see also State v. Guess, 44 Conn. App. 790, 802, 692 A.2d 849 (1997) (forty-five minutes), aff'd, 244 Conn. 761, 715 A.2d 643 (1998); State v. Cayouette, 25 Conn. App. 384, 386-88, 594 A.2d 1020 (1991) (between ten, twenty-nine minutes).

In the present case, there was evidence before the court that twenty to thirty minutes had elapsed from the time the defendant left the van until the child made the unsolicited statement to the police officer. As previously stated, “[rjecent decisions . . . have under certain circumstances expanded the acceptable time frame between an event and the spontaneous utterance to a significant period.” State v. McNair, supra, 54 Conn. App. 812. We conclude, therefore, that it was not an abuse of discretion for the court to admit the child’s statement, which was made twenty to thirty minutes after the events that had occurred in the van.

The defendant also argues that during the time between the events in the van and when the challenged statement was made, the child’s mental state had changed from fear to anger and, therefore, the statement was unreliable. We disagree.

In State v. Wargo, 53 Conn. App. 747, 731 A.2d 768 (1999), aff'd, 255 Conn. 113, 763 A.2d 1 (2000), the defendant set his house on fire to hide the fact that he had killed his wife. More than ninety minutes after the fire had started, the defendant’s children made statements impheating their father. This court stated that “the challenged statements were made while the children were under the stress of watching their house bum while their mother’s condition was unknown.” Id., 757.

In the present case, ample evidence was before the court that the young child had made the statement while he was under the stress of the events of April 23, 1999. The child observed the defendant scream at the wife. The child was in the van when the defendant stmek the wife. Additionally, the defendant threatened to kill everyone in the van. Thereafter, the wife, after driving to the police station, sounded the van’s horn, creating a loud and raucous commotion. The wife never attempted to speak to or to console her child. After arriving at his grandparents’ home, he saw his mother, uncle and grandparents all in an agitated and emotional state. We also note the presence of a police officer at the grandparents’ residence. The young child made the unsolicited comment to the police officer under the totality of those stressful and traumatic circumstances. We conclude, therefore, that the court did not abuse its discretion in admitting into evidence the hearsay statement under the spontaneous utterance exception to the hearsay rule.

II

The defendant also claims that the court improperly instructed the juiy regarding the existence of a protective order. Specifically, the defendant argues that the court improperly relieved the state of its burden of proving one of the elements of the crime of violation of a protective order, namely, the existence of a valid protective order. The defendant contends, therefore, that he was denied the right to a fair trial. The defendant failed to preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant waived his claim and therefore cannot satisfy the third Golding prong.

We are mindful that in “the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial.” State v. Cooper, 38 Conn. App. 661, 667, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). “[In Cooper], we held that a defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial.” State v. Payne, 63 Conn. App. 583, 588, 777 A.2d 731 (2001), rev’d on other grounds, 260 Conn. 446, 797 A.2d 1088 (2002); see also State v. Corona, 69 Conn. App. 267, 271, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).

In the present case, the defendant made an implicit waiver regarding the court’s instruction concerning the protective order. The court admitted into evidence a certified copy of the protective order that the wife obtained after the April 23,1999 incident. Defense counsel, however, did not object to the admission of that document. Our review of the transcript reveals that during the cross-examination of Anthony Waznicki, a Meriden police officer, defense counsel made numerous references to the protective order. During his closing argument, defense counsel again mentioned the protective order. Defense counsel also failed to object when the prosecutor discussed the protective order during closing argument and rebuttal closing argument. Finally, defense counsel failed to object to the court’s charge to the jury regarding the existence of the protective order.

“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights.” State v. Cooper, supra, 38 Conn. App. 669. Although the state must ordinarily prove even the undisputed elements of the crime charged, it is not necessary that a defendant’s waiver of that requirement be express. Id., 670. “To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal.” (Internal quotation marks omitted.) Id. We conclude, therefore, that the defendant waived the requirement that the state prove the existence of a valid protective order. The defendant, therefore, did not satisfy the third prong of Golding. Accordingly, the defendant’s claim of a constitutional error must fail.

The judgment is affirmed.

In this opinion SHEA, J., concurred.

LANDAU, J.,

concurring. I agree with the conclusion reached by the majority, but write separately to express my considerations with respect to the analysis in part II of the opinion. The majority relies on State v. Payne, 63 Conn. App. 583, 777 A.2d 731 (2001), rev’d on other grounds, 260 Conn. 446, 797 A.2d 1088 (2002), to conclude that the defendant did not satisfy the third prong of Golding and, therefore, that his claim of constitutional error cannot be sustained.

In Payne, the court adopted the reasoning of State v. Cooper, 38 Conn. App. 661, 669-70, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837,134 L. Ed. 2d 940 (1996), in which this court held that the defendant could not satisfy the third prong of Golding because, at trial, he implicitly waived a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. State v. Payne, supra, 63 Conn. App. 588. Payne held that a defendant could not prevail under Golding on a claim that he implicitly waived at trial. Id.

Respectfully, I do not read Cooper in the manner in which it was applied in Payne and its progeny. The basis of the court’s holding in Cooper was a waiver analysis, not a Golding analysis. The reasoning of the Cooper court is set out in part IA of the opinion. State v. Cooper, supra, 38 Conn. App. 664-71. In that case, the defendant claimed that the court violated his constitutional rights by improperly instructing the jury “that the highway in question is a public highway. So you need not deal with that element and you need not make that finding.” (Internal quotation marks omitted.) Id., 664. He did not preserve his claim at trial and sought review pursuant to Golding.

The Cooper court began a Golding analysis, first concluding that the issue was reviewable in that the record was adequate, and second, that the claim was of constitutional magnitude. Id., 665-66. The court then turned to the third prong of Golding, i.e., whether a constitutional violation clearly existed, noting that the statute under which the defendant had been charged contained the element of operating a motor vehicle on a public highway. Id., 666.

The defendant in Cooper argued that the court’s instruction violated the doctrine against mandatory presumptions enunciated in Sandstrom v. Montana, 442 U.S. 510, 517-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). State v. Cooper, supra, 38 Conn. App. 666-67. This court concluded, however, that it “need not decide whether the Sandstrom doctrine applied to [the defendant in Cooper] because the defendant waived his right to require the state to prove the public highway element of the offense beyond a reasonable doubt.” Id., 667.

The court continued: “In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. The due process clause prescribes that the defendant has a right to require the fact finder to determine each element of an offense charged beyond a reasonable doubt. . . . Under the circumstances, however, the record reveals that the defendant conceded the element in question, and, therefore, waived his right to require the fact finder to determine the element.” (Citations omitted; internal quotation marks omitted.) Id. The court continued to travel the “waiver road” for the next several pages of the opinion until it concluded that the defendant had “waived his due process right to require the state to prove that element.” Id., 670. The court never returned to Golding. Although I clearly see how one can be led down the Golding path, I am convinced that the Cooper court arrived at its holding on the basis of a waiver analysis.

My reading suggests that a Cooper analysis does not provide us with the rule that “a defendant cannot prevail under Golding on a claim that he implicitly waived at trial.” State v. Payne, 63 Conn. App. 588. Cooper holds that a waiver is a waiver is a waiver. Consequently, I would resolve the defendant’s claim by way of a waiver analysis, rather than by way of a Golding examination.

For those reasons, I respectfully concur.

       Although the defendant listed the docket number for the third case, docket no. 201299S, on his appeal form, he was acquitted of the only crime charged in that case and therefore is not aggrieved by that judgment. To the extent that the defendant's appeal challenges that judgment, the appeal is dismissed.

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-63 (a) provides: “ A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       General Statutes (Kev. to 1999) § 53a-110b (a), as amended by Public Acts 1999, No. 99-240, § 4, now § 53a.-223 (a), provides: “A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order.”

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . .”

       General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening when ... (2) he threatens to commit any crime of violence with the intent to terrorize another . . . .”

       The defendant was charged in three separate informations, each stemming from events that occurred on different dates. The three cases were consolidated for trial.

       The wife testified that the defendant did not allow her to have a key to the residence, and that he previously had nailed all the windows shut and the door was double bolted because he did not want her to leave the residence.

       General Statutes § 46b-38c provides in relevant part: ‘‘(d) In all cases of family violence, a written or oral report and recommendation of the local intervention unit shall be available to a judge at the first court date appearance to be presented at any time during the court session on that date. A,judge of the Superior Court may consider and impose the following conditions to protect the parties, including but not limited to: (1) Issuance of a protective order pursuant to subsection (e) . . . (2) prohibition against subjecting the victim to further violence; (3) referral to a family violence education program for batterers; and (4) immediate referral for more extensive case assessment.
      “(e) A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant, including but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim; (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim; or (3) entering the family dwelling or the dwelling of the victim. Such order shall be made a condition of the bail or release of the defendant and shall contain the following language: ‘In accordance with section 53a-223, any violation of this order constitutes criminal violation of a protective order. Additionally, in accordance with section 53a-107, entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree. These are criminal offenses ....”’

       Specifically, the defendant’s son stated that “his mother was in the house” and the defendant’s daughter stated that “her father had stepped on her mother while he was getting the children out of the house.” State v. Wargo, supra, 53 Conn. App. 755. The defendant’s son also stated that his parents had been fighting that night. Id.

       “Under Golding, 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.” (Emphasis in original; internal quotation marks omitted.) State v. Hobson, 68 Conn. App. 40, 47, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002). We also note that “[t]he first two questions [of Golding review] relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. ... In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Payne, 63 Conn. App. 583, 587-88, 777 A.2d 731 (2001), rev’d on other grounds, 260 Conn. 446, 797 A.2d 1088 (2002).

       When instructing the jury as to the charge of violating a protective order, the court stated “[f]or you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt — that the defendant had a protective order issued against him .... I hereby instruct you . . . that state’s exhibit C is a protective order . . . . ”

         State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       This court also applied the Payne-Cooper analysis in State v. Corona, 69 Conn. App. 267, 271-73, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).

       The defendant in Cooper had been charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a), which provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor ... on a public highway of this state . . . .”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MAURICE T. DANIELS v. COMMISSIONER OF CORRECTION
    (AC 22667)
    Lavery, C. X, and Schaller and West, Js.
    Submitted on briefs January 16
    officially released February 18, 2003

      Brian D. Russell filed a brief for the appellant (petitioner).

      Richard Blumenthal, attorney general, and Madeline A. Melchionne, assistant attorney general, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Maurice T. Daniels, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus and denying his petition for certification to appeal to this court. On appeal, the petitioner argues that the court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly dismissed his petition for a writ of habeas corpus because it incorrectly calculated his release date. We dismiss the appeal.

The following facts, as recited by the court, are relevant to the petitioner’s appeal. On or about September 10, 1989, the petitioner was arrested and charged with, inter alia, assault in the first degree. On October 26, 1989, after the victim of the assault died, the petitioner was arrested on a charge of felony murder in violation of General Statutes § 53a-54c. The new arrest was prosecuted under a different docket number. On September 20, 1990, after being convicted on the basis of a plea agreement, the petitioner was sentenced to the custody of the respondent commissioner of correction for thirty years.

On December 21, 2000, the petitioner filed an amended petition for a writ of habeas corpus. The petitioner argued to the habeas court that he had not been given all of the jail credit and good time credit to which he was entitled. The court rejected the petitioner’s claims and concluded that he had failed to prove that he had been denied the credits that he claimed. Specifically, the court found, based on the evidence, that when the petitioner first came into the custody of the respondent to seive his thirty year sentence, his maximum release date was September 19, 2020. On February 27, 1991, the petitioner was credited with 329 days of jail credit and 109 days of good time credit. That was for pretrial confinement for which the petitioner was unable to post bond. After a motion for sentence modification was granted, a corrected mittimus was issued, and the petitioner was awarded forty-five days jail credit and fifteen days good time credit.

The court further found that as of November 1, 2001, the petitioner’s maximum release date was December 4,2014, and his estimated release date was March, 2011. The court found that those dates were correct and that the petitioner had been granted all of the credits to which he was entitled under the law. Finally, the court concluded that the estimated release date was an estimate only and was subject to modification, and that it was only one factor in determining eligibility for level reduction and release to halfway house programs. The court, therefore, dismissed the petition for a writ of habeas corpus and denied the petitioner’s petition for certification to appeal.

After review of the record and briefs, 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, that he 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 Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner 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 appeal is dismissed.


text:
    LOCAL 353, AFSCME, COUNCIL 4, AFL-CIO v. CITY OF WATERBURY
    (AC 22166)
    Foti, Schaller and Freedman, Js.
    Argued December 9, 2002
    officially released February 18, 2003

      J. William Gagne, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellant (plaintiff).

      Peter Abare-Brown, with whom, on the brief, was Paula N. Anthony, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Local 353, American Federation of State, County and Municipal Employees, Council 4, AFL-CIO (union), appeals from the judgment of the trial court denying its application to vacate an arbitration award that denied its grievance concerning work on certain holidays for municipal refuse workers. On appeal, the union argues that the arbitration panel exceeded its authority or so imperfectly performed its duties that a mutual, final and definite award was not rendered. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The union and the defendant city of Waterbuiy (city) are parties to a collective bargaining agreement that provides for the arbitration of grievances. The union represents, inter alia, refuse collectors employed by the city. Under the terms of the agreement, the union filed a grievance before a panel from the state board of mediation and arbitration. The parties submitted the following joint issue to the arbitration panel: “Did the City violate the collective bargaining agreement by not requiring the Refuse Department employees to work on Memorial Day and Independence Day? If so, what shall the remedy be consistent with the blue collar contract?” On April 8,1998, the arbitration panel denied the grievance and concluded that the city did not violate the collective bargaining agreement by not requiring the refuse department employees to work on Memorial Day and Independence Day.

On April 29, 1998, the union filed an application to vacate the arbitration award. The union argued that the arbitration panel, by denying the grievance, rendered an award that was inherently inconsistent with the terms of the past practices provision of the collective bargaining agreement in article XIII, § 2. Specifically, the union argued that the arbitration panel exceeded its authority by failing to draw the essence of its award from the collective bargaining agreement. The union further argued that the arbitration award was in violation of the hours of work provision in article IV, § 5 (c), of the collective bargaining agreement. The city argued, inter alia, that the arbitration panel did not exceed its authority because the award conformed to the issue submitted and was consistent with article XIII, § 2, article VII, § l, and article IV, § l, of the collective bargaining agreement. The court denied the union’s application to vacate the arbitration award, concluding that a comparison of the collective bargaining agreement and award indicated that the award was consistent with and drew its essence from the agreement. In particular, the court noted the panel’s finding that the scheduling of holidays is a management right under article IV, § 1, of the agreement.

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment should be affirmed. The issues were resolved in the court’s thoughtful and comprehensive memorandum of decision. Local 353, AFSCME, Council 4, AFL-CIO v. Waterbury, 47 Conn. Sup. 559, 815 A.2d 725 (2001). Because the memorandum of decision addresses the arguments raised in this appeal, we adopt it as a proper statement of the issues and the applicable law concerning those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Serafin v. State, 63 Conn. App. 214, 216, 772 A.2d 781 (2001).

The judgment is affirmed.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating 1he award ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Article XIII, § 2, of the collective bargaining agreement states: “The parties further recognize that if any provision in this Agreement is contrary to a practice existing prior to the date of execution of this Agreement, then the provision of this Agreement, shall prevail. In all other respects, this Agreement shall not be construed as abridging any rights, benefits or privileges, based on historical practice, that employees have enjoyed heretofore; which rights, benefits or privileges are not specifically covered or mentioned in this Agreement.”

       Article IV, § 5 (c), of the collective bargaining agreement states in relevant part: “The Refuse Collection crews will be paid on a basis of a five (5) day, forty (40) hour week (it being understood that the work day is the incentive system alluded to in Sections 5 (a) and 5 (b) hereof). However, as hereinafter indicated, only twelve (12) of the fifty-two (52) Wednesdays shall be regularly scheduled as special collection days . . . and the remaining forty (40)(more or less) Wednesdays in any calendar year shall be days on which Refuse Collection crews shall not be required to work except for the performance of Refuse Collection which is necessitated because of a snow storm or other inclement weather cancelling the immediately proceeding Monday or Tuesday refuse collection. In any given work week, Monday, Tuesday, Thursday and Friday shall be the regularly scheduled workdays for refuse collection for the Refuse Collection crews

       Article VII, § 1, of the collective bargaining agreement states that “[t]he right and authority to make work schedules and work assignments is vested exclusively in the City, its Mayor and/or the various administrative officials and/or Department Heads of the Departments involved.”

       Article IV, § 1, of the collective bargaining agreement states in relevant part that “[t]he City retains the right, subject to the provisions of Section 6 and 6 (a) hereof, to amend, alter and change work week schedules. ...”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JAMES WHITFIELD
    (AC 22425)
    Lavery, C. X, and Bishop and Hennessy, Js.

      Argued December 4, 2002
    officially released February 18, 2003

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Gail P. Hardy, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, James Whitfield, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and one count of risk of injury to a child in violation of General Statutes § 53-21 (2). The defendant had been charged in a four count information alleging two counts of sexual assault in the first degree and two counts of risk of injury to a child. The information alleged that the offenses occurred on two separate occasions involving the minor victims, N and M. The jury returned a guilty verdict on the counts applicable to N and acquitted the defendant on the counts applicable to M.

On appeal, the defendant claims that the court improperly (1) admitted into evidence certain constancy of accusation testimony, (2) denied him access to certain records of the department of children and families (department), (3) joined together the trial of two separate offenses of sexual assault and risk of injury involving two minors who are sisters and (4) denied his motion for a judgment of acquittal. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. In 1995, the defendant was a church elder in the Church of God in Christ and became engaged to a woman who was an organist, youth leader and choir director at a congregation of the church different from that of the defendant. During that time, the defendant attended church with his fiancee and was introduced there as an elder. N and M, thirteen and fifteen years of age, respectively, had been attending the church for the majority of their lives. As a consequence of his frequent attendance at the church and his relationship with his fiancee, the defendant often was in the presence of the children, whom he befriended. From time to time, the defendant would give the children rides to church functions and, on one occasion, took N and her younger siblings to an amusement park.

On the morning of February 5, 1996, N was waiting for the school bus when the defendant approached in his automobile and asked her if she would like a ride to school. Once N was in the automobile, the defendant initially drove in the direction of N’s school, but then told her he had to stop at his apartment to make a telephone call. N accompanied the defendant to his apartment and sat on the couch in the living room while he spoke on the telephone in his bedroom. After completing the conversation, the defendant entered the living room and began to remove N’s clothing. As N attempted to move to leave the apartment, the defendant restrained her by grabbing her back and pulling her arms. Warding off N’s attempts to strike him, the defendant took her to his bedroom where he forcibly removed the remainder of her clothing and had vaginal intercourse with her while restraining her with his superior weight and force. After the assault, N dressed herself and told the defendant of her intention to report the incident to someone. Because the defendant refused to take N to school, she remained in his apartment until he took her to her home in the early afternoon.

N skipped school on the following two days and spent those days walking the streets, contemplating who to tell about the assault. Subsequently, N told a health teacher at her school and her godmother, who, in turn, reported the incident to N’s mother. Once N knew that her mother had been told, N then spoke directly with her mother about the assault. The mother then took N to the police station to make a sexual assault complaint and to a physician for an examination. The defendant subsequently was arrested on a warrant and thereafter convicted of the charges relative to the February 5, 1996 incident involving N. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly admitted into evidence certain constancy of accusation testimony. We do not agree.

At trial, the state’s first witness was Detective Karen Cerutti. She testified that on April 1, 1996, she took a sexual assault complaint from two young girls in the course of which she interviewed them and prepared a report that was transmitted to Lieutenant Kathleen Wilson. Cerutti also took into police inventoiy a gold ring given to her by one of the children. Cerutti did not testify as to the contents of her interviews.

The state next called Wilson, who testified that after she received an internal police document setting forth a complaint of sexual assault of two minor females, she arranged to have N and M brought to the police station, where on May 1, 1996, she took statements from them. During her testimony, Wilson confirmed that two documents marked for identification by the state were, in fact, the statements given by the children. She did not reiterate the substance of the children’s claims, but indicated that the person accused of the offenses was the defendant. The statements were not offered into evidence through Wilson as full exhibits.

The state’s next witness was N. She testified as to the events of February 5, 1996, describing the assault as previously discussed. She testified that she had told her health teacher and godmother that the defendant had “raped” her. Although she was not certain of the dates when she told them of the assault, she believed that she made the disclosures at the end of February or early March, 1996. N testified that although she did not initially inform her mother, once the godmother told N’s mother and the mother told N of her awareness, N then confirmed the incident to her mother. N also testified that M had told her that she, too, had been “raped” by the defendant. N then related her experience with the defendant to M. Finally, N testified that she had spoken with a police officer and signed a statement at the police department that the defendant had sexually assaulted her.

The state then called M to testify. M testified that on February 14,1996, the defendant sexually assaulted her at his apartment. Her testimony as to that alleged assault was, in many respects, parallel to N’s recitation of the February 5, 1996 assault. M testified that she reported the alleged assault to N’s godmother, to the police and to a physician. She also confirmed the alleged assault when confronted by her mother, and spoke with N about it and about the February 5, 1996 assault of N.

After the testimony of N and M, the health teacher testified that N had told her that a minister had sexually assaulted her. The health teacher gave no details of her conversation with N. Following the health teacher’s testimony, the court gave a limiting instruction to the jury that the testimony of a constancy of accusation witness had been admitted into evidence for the sole purpose of corroborating N’s testimony.

The godmother next testified that in March, 1996, N had told her that the defendant picked her up at the bus stop and took her to his apartment where he had sex with her. The godmother testified that she told N that she was going to report the incident to N’s mother. The godmother also testified that on the same day, M had told her that the defendant had sexually assaulted her as well. The children’s mother next testified that once she found out about the February 5, 1996 assault of N and the alleged February 14, 1996 assault of M, she took the children to the police department and to a physician.

The state’s last witness, a pediatrician, testified that on April 3, 1996, she saw both children, who had been brought to her office by their mother because they had told the mother that they had been sexually assaulted. Because the pediatrician had not personally examined N or M and because the physician’s assistant in her office who conducted the examinations was unavailable to testify, the pediatrician was not asked about the physical examinations.

The defendant claims that the court improperly admitted into evidence the constancy of accusation testimony of each of the children concerning the other’s claims, and the testimony of the health teacher, the godmother and the children’s mother. The defendant also asserts in his brief that “to some extent,” the two police officers were improper constancy witnesses. The defendant further contends that the harm caused by the improper admission of the testimony was compounded by the court’s failure to give a proper jury instruction regarding the limited purpose for which such evidence may be considered.

Although the defendant, at oral argument, urged this court to view his constancy of accusation claims as implicating his right to a fair trial, neither his statement of the issues on appeal nor the argument in his brief sets forth any basis for this court to consider his claims to have a constitutional dimension. Additionally, although counsel made conclusory claims that the admission of the testimony, considered en toto, violated the defendant’s right to a fair trial, he has provided this court with no analysis for a claim of such magnitude.

The defendant’s predicament is understandable. Notwithstanding his present claims that the trial court should not have admitted constancy of accusation testimony, the defendant raised no objections at trial to any of the constancy testimony and took no exceptions to the court’s cautionary charge to the jury during the trial or to the charge at the end of the evidence. This court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5.

In light of our Supreme Court’s opinion in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), however, and mindful that the cumulative effect of improperly admitted constancy testimony could implicate a defendant’s right to a fair trial, we have reviewed the trial proceedings to determine if, when viewed as a whole, the admission of the constancy testimony violated the defendant’s right to a fair trial. We conclude that it did not. In the main, the constancy testimony closely tracked the parameters espoused in Troupe for such testimony.

N testified that she reported the assault to the health teacher, to M and to her mother once the latter confronted N with her knowledge of the claim. In turn, those witnesses testified that N had reported that she had been “raped” by the defendant. In addition, N reported to her godmother that the defendant had picked her up at the bus stop. Thus, none of the constancy witnesses testified as to the details beyond the limitations set by the court in Troupe and, with each witness, the testimony fairly corroborated N’s prior testimony as to what she had reported to them.

The defendant only obliquely claims that the police officers were constancy witnesses in his assertion that “to some extent,” they provided constancy testimony. He asserts that their evidence was admitted improperly because they testified before N and M. We would agree with the defendant as to the proper sequence of testimony if, in fact, both officers had been offered as constancy witnesses. To the contrary, in her testimony, Cerutti testified only that she took a sexual assault complaint from “two young girls” and took into evidence a gold ring given to her by one of them. At no time during her testimony did she report what had been told to her.

The second officer to testify, Wilson, did state that she took statements from N and M after receiving an internal complaint of a sexual assault of two minor females and that during the interview process, the defendant had been identified as the perpetrator. We agree with the defendant that a fair understanding of Wilson’s testimony was that at least a portion of it was to establish that N and M had, in fact, made a complaint to her that they had been sexually assaulted by the defendant. As such, Wilson’s testimony should have been offered after the victims had testified so as to corroborate their testimony that they had reported the assaults to the police. We do not find, however, that this evidentiary misstep denied the defendant a fair trial because Wilson’s statement contained no inflammatory material beyond the basic allegation made by each child that each had been sexually assaulted, each child later testified in harmony with Wilson’s testimony and the remainder of the constancy testimony was well in accord with the parameters established by Troupe.

II

The defendant next claims that the court improperly prevented him from having access to certain department records in violation of his sixth amendment right to confrontation. His claim is without merit.

During the state’s presentation of evidence, counsel for the defendant and the state engaged in a colloquy with the court regarding certain department records that had been subpoenaed. Defense counsel noted that he had been provided four pages of the records as part of pretrial proceedings after the court had conducted an in camera review of the records to determine which portions, if any, the defendant should be entitled to review. Defense counsel indicated to the court that he had attempted to subpoena a certain department worker, but had learned that she was out of the country on vacation and would not be available for several days.

Counsel then represented that the worker had investigated a complaint by M regarding a domestic situation, but that the worker had reported to him that she had no independent recollection of the specific allegations M had made. Counsel indicated, however, that the worker had told him that she had written notes conceming her investigation and that a review of those notes could possibly refresh her recollection. As part of the colloquy with the state and the court, defense counsel requested that the worker have the opportunity to review the department file to determine if her notes were part of the file and, if so, to see if a review of her notes would refresh her recollection. Additionally, because of the worker’s unavailability at that time, counsel requested and received a continuance of the trial. The trial thereupon recessed on February 21, 2001, and resumed on March 12, 2001.

Once the trial recommenced on March 12, 2001, the court and counsel engaged in a colloquy with the worker, in the absence of the jury, during which she indicated that she had no independent recollection of the domestic complaint she investigated in 1995. In response to the court’s questions, the worker described, in general terms, the form of her investigative notes. Although the court did not express its purpose in questioning the worker, it is clear from the record that the court’s purpose was to determine if it could identify her notes in an in camera review because, after discussing the issue of her access to the records, the court conducted an in camera review of the documents. Following its review, the court indicated to counsel that there was nothing in the department records that should be subject to disclosure beyond that already provided after the court’s prior in camera review. As to the notes, the court stated that because it already had determined from its review of the file that no additional portions should be disclosed, and because the worker had an obligation to maintain the confidentiality of the department file, no useful purpose would be served by having her independently review the file. Defense counsel took exception to the court’s ruling that the worker would not be given an opportunity to review the department file for the purpose of refreshing her recollection.

A review of the trial record makes clear that the records involved concerned an investigation by the department of an allegation made in 1995 that the children’s mother had been physically abusive to them. It also is clear from the record that the claim had been dismissed by the department as unfounded and as having been made falsely.

As a preliminary matter, we note that General Statutes § 17a-28 prohibits the release of department records, subject to certain exceptions. Thus, department records enjoy a qualified privilege from disclosure. In State v. Howard, 221 Conn. 447, 459 n.10, 604 A.2d 1294 (1992), our Supreme Court stated that “[juvenile court records pertaining to neglect proceedings and encompassing information from [the department] are confidential and subject to disclosure to third parties only upon court order.”

Procedurally, our courts have devised a method for determining whether disclosure should be made by first requiring counsel to lay a sufficient foundation. Once such a foundation has been established, the court should then conduct an in camera inspection to determine whether the records contain material relevant to the foundation established by the requesting party. State v. Leduc, 40 Conn. App. 233, 248-49, 670 A.2d 1309 (1996), on appeal after remand, 44 Conn. App. 744, 690 A.2d 1390, cert. denied, 241 Conn. 909, 695 A.2d 541 (1997).

In the present case, it is understandable that the defendant does not argue that the court failed to conduct an in camera review because the court, on two occasions, conducted such a review. Rather, the defendant asserts an undefined right to the records notwithstanding the court’s determination after review that no further disclosure was warranted. The court determined that there was no additional undisclosed information in the file relevant to the basis for disclosure advanced by the defendant. Although the defendant makes the conclusory claim that the failure of the court to provide the department records to him and to his potential witness, the department worker, prevented him from calling her to testify and, thus, violated his confrontation light, he has supplied this court with no reasoning to buttress his claim. Indeed, it is clear from the record that neither the defendant nor the state called the worker as a witness. Although the United States constitution’s confrontation clause includes the right of a criminal defendant to confront witnesses against him, the defendant’s claim that the failure of the court to disclose the department records prevented him from calling a witness to testify fails facially. The claim is without merit.

Ill

The defendant next claims that the evidence was insufficient to support the jury’s guilty verdict on counts one and two. We disagree.

At the conclusion of the state’s case, the defendant sought a judgment of acquittal on the basis of his claim that the evidence was legally insufficient to convict him of the charges as to the February 5 or February 14, 1996 occurrences. After the court denied the motion, the defendant testified that he did not assault either child. He also testified that he did not tell either child to report falsely that their mother had been physically abusive to them.

“When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., 237.

In the present case, N and the defendant testified. The facts recited by N, if credited by the jury, were sufficient to warrant the jury’s conclusion of the defendant’s guilt. It was within the jury’s province to credit N’s testimony and to disbelieve the defendant. Accordingly, we conclude that the evidence was sufficient to establish the defendant’s guilt of each of the counts of which he was convicted beyond a reasonable doubt.

IV

The defendant’s final claim is that the court improperly joined the trial of the first two counts relative to the February 5, 1996 assault on N, with the third and fourth counts alleging the February 14, 1996 assault on M.

The defendant’s claim has not been preserved for review. In his brief and at oral argument, counsel failed to refer to any motion filed by the defendant at any time during the proceedings requesting severance of the charges. Although we decline to review the claim on the basis of an inadequate record, we note as well that the defendant has failed to demonstrate any prejudicial effect of having been tried on all four counts at once. Indeed, in light of his acquittal on the third and fourth counts, the defendant would be hard pressed to make such an argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       In keeping with our policy to protect the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom her identity may be revealed. See General Statutes § 54-86e.

       An elder is a position of rank and leadership within the church enabling the individual who holds it to perform certain functions such as counseling, preaching, evangelization, and officiating at marriages and funerals.

       It should be noted that M also accused the defendant of sexually assaulting her on February 14, 1996, in a manner similar to his assault on N. Because the defendant was acquitted of the alleged assault on M, the facts pertaining to that allegation will not be discussed.

       “[A] person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identify of the alleged perpetrator.” State v. Troupe, supra, 237 Conn. 304.

       N testified that in the latter part of 1995, when she and her sister had complained to the defendant that their mother was a strict disciplinarian, the defendant suggested that they tell school officials that their mother had been physically abusive. He told them that their mother would get into trouble and that they would be able to move from their home and possibly stay with him and his fiancee. N testified that although she did not follow the defendant’s advice, M did make such an allegation that resulted in a department investigation.
      M testified that the defendant had advised her, as a way to no longer have to live with her mother, to claim at school falsely that her mother had been physically abusing her. She subsequently made such an allegation, but in her testimony, she admitted that the complaint had been false.

       See State v. Johnson, 57 Conn. App. 156, 748 A.2d 334, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000). “As to any conflicting testimony provided by the state’s witnesses, we follow the well established rule that we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . When conflicting testimony is presented, the jury may credit the testimony it finds believable. . . . Therefore, [t]he [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) Id., 164.

       See United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn. App. 212, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002). “It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . . With only a few exceptions ... we will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first tíme on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Id., 223-24.


author: SCHALLER, J.

text:
    JANE BAILEY v. MEDICAL EXAMINING BOARD FOR STATE EMPLOYEE DISABILITY RETIREMENT ET AL.
    (AC 22334)
    Lavery, C. J., and Schaller and Bishop, Js.
    Argued September 17, 2002
    officially released February 25, 2003

      Brian W. Prucker, for the appellant (plaintiff).

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Jane Bailey, appeals from the judgment of the trial court granting the motion of the defendant medical examining board for state employee disability retirement (board) to dismiss her administrative appeal on the ground that the court lacked subject matter jurisdiction pursuant to the Uniform Administrative Procedure Act (UAPA). The plaintiff claims that (1) the court improperly dismissed her appeal on the ground that the board’s denial of disability retirement benefits was not a final decision in a contested case within the meaning of the UAPA and (2) the board’s denial of benefits was improper under the doctrine of collateral estoppel.

The dispositive issue in this case is whether the board’s decision constituted a “final decision” pursuant to the UAPA. Because the board’s decision was not an agency determination in a contested case, the court properly dismissed the appeal on the ground of a lack of subject matter jurisdiction. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff, a state employee with an extensive history of significant family related difficulties, was employed as a purchasing service officer at Capital Community Technical College. On April 29, 1991, the plaintiff departed from work and reported to an emergency room where she was diagnosed as having acute dysmenorrhea and acute hyperventilation. Specifically, it was determined that she had experienced a panic attack following a disagreement with her supervisor. See Bailey v. State, No. 3922 CRB-02-98-10 (November 30,1999). The plaintiff did not return to work following that incident and subsequently was admitted to a hospital in May, 1991, for treatment of major depression with severe anxiety and borderline psychotic symptomatology. During the plaintiffs hospital admission, she also was diagnosed with glaucoma and a mixed type personality disorder with passive-aggressive and dependent features. It later would be determined that significant family stressors existed contemporaneous to the plaintiffs hospital admission.

Following the incident with her supervisor, the plaintiff filed a workers’ compensation claim. In 1994, the workers’ compensation commissioner (commissioner) determined that the plaintiff had a compensable, psychotic, workplace related injury resulting from the stress that she had experienced in 1991.

In 1998, the plaintiff filed an application for service connected disability retirement benefits. On March 30, 2001, a hearing was held before a three member panel of physicians to determine the extent of the plaintiffs disability. On the basis of that hearing and a review of documentation admitted into evidence, the board determined that “[i]t is clear from the extensive record of medical and psychiatric treatment that the applicant’s mental illness impacted on her ability to function in the workplace and it continues to be disabling; however, the board is unable to conclude that her disability is due to her employment as a purchasing service officer. On the whole, the evidence does not support the conclusion of service connection, and the application is therefore denied.”

On June 5, 2001, the plaintiff appealed to the court from the board’s decision. In response, the defendant filed a motion to dismiss the appeal based on the court’s lack of subject matter jurisdiction. The court, finding that subject matter jurisdiction did not exist, granted the defendant’s motion. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff claims that the court improperly dismissed her appeal on the ground that the board’s denial of disability benefits was not a final decision in a contested case within the meaning of the UAPA. More precisely cast, the plaintiff claims that when a finding and award is made by the workers’ compensation commissioner, and against a state agency, concerning a work-related injury, any subsequent denial of service connected disability retirement by the board is an appeal-able final decision of a contested matter pursuant to the UAPA. We disagree.

We first set forth our standard of review governing an appeal from a judgment granting a motion to dismiss on the ground of a lack of subject matter jurisdiction. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a, matter of law and fact state a cause of action that should be heard by the court.” (Emphasis in original; internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn. App. 591, 594, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002); see also Practice Book § 10-31 (a) (1). A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. See Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). Our Supreme Court has determined that when “ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [Bjecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Tooley v. Metro-North Commuter Railroad Co., 58 Conn. App. 485, 491, 755 A.2d 270 (2000).

There is no absolute right to appeal decisions of administrative agencies. See Ahern v. State Employees Retirement Commission, 48 Conn. App. 482, 487, 710 A.2d 1366 (“[t]he right to appeal from a decision of an administrative agency to the Superior Court is a creature of statute”), cert. denied, 245 Conn. 911, 718 A.2d 16 (1998). If the legislature has not created statutory authority for an appeal, then the Superior Court does not have jurisdiction to hear the appeal. See Killingly v. Connecticut Siting Council, 220 Conn. 516, 521, 600 A.2d 752 (1991). Moreover, the legislature has not authorized a right of appeal to the Superior Court from every determination of an administrative agency. See New England Dairies, Inc. v. Commissioner of Agriculture, 221 Conn. 422, 427, 604 A.2d 810 (1992). “Judicial review of [an administrative agency’s] action is governed by the [UAPA] . . . and the scope of that review is very restricted.” (Internal quotation marks omitted.) Ellam v. Commissioner of Motor Vehicles, 47 Conn. App. 509, 513, 704 A.2d 257 (1998).

Prior to determining whether the court lacked subject matter jurisdiction to hear the appeal, we first set out the statutory framework for administrative appeals. General Statutes § 4-183 grants the Superior Court subject matter jurisdiction to hear and decide appeals from agency decisions. Section 4-183 (a) provides in relevant part that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by afinal decision may appeal to the Superior Court as provided in this section. ...” (Emphasis added.)

“In determining whether an administrative decision is final for the purposes of § 4-183 (a), we look first to our statutes governing such determinations.” (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 144, 788 A.2d 1158 (2002). General Statutes § 4-166 (3) defines “final decision” as “(A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . . .” (Emphasis added.)

In the present case, there is nothing to indicate that the denial of the plaintiffs claim for service connected disability was a declaratory ruling under § 4-166 (3) (B) or a decision made after reconsideration under § 4-166 (3) (C). The question therefore is whether the decision by the board was an “agency determination in a contested case” pursuant to § 4-166 (3) (A).

Section 4-166 (2) defines “contested case” as “a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168 . . . .” (Emphasis added.) That is, the UAPA mandates, as a predicate for contested case status, that a party must have enjoyed a statutory right to ahearing. See Lewis v. Gaming Policy Board, 224 Conn. 693, 699-700, 620 A.2d 780 (1993); see also Ahern v. State Employees Retirement Commission, supra, 48 Conn. App. 487-88 (Lavery, J., concurring). For the Superior Court to have subject matter jurisdiction to hear the plaintiffs appeal from the board’s decision, therefore, there must exist an agency decision in a proceeding (contested case) during which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing.

“The test for determining contested case status . . . requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.” (Emphasis in original; internal quotation marks omitted.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 800-801, 629 A.2d 367 (1993). Applying that test, the legal right, duty, or privilege at issue in this case is the plaintiffs right to apply for service connected disability retirement from the state. The second and third prongs of this test, however, have not been satisfied. Contested case status does not hinge on whether a hearing in fact has been held. That is, a hearing not statutorily mandated, even if gratuitously held, does not create a contested case for purposes of the UAPA and subject matter jurisdiction. Dadiskos v. Connecticut Real Estate Commission, 37 Conn. App. 777, 782, 657 A.2d 717 (1995).

Our Supreme Court has “determined that even in a case where a hearing is in fact held, in order to constitute a contested case, a party to that hearing must have enjoyed a statutory right to have his legal rights, duties or privileges determined by that agency holding the hearing. ... In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency’s determination.” (Internal quotation marks omitted.) Lewis v. Gaming Policy Board, supra, 224 Conn. 700; see also Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 807-809 (if hearing not statutorily mandated, even if one gratuitously held, “contested case” not created).

In the present case, the plaintiff has not been aggrieved by a final decision, as required by § 4-183 (a), because no contested case existed. The plaintiff based her claim for benefits on General Statutes § 5-169. Section 5-169 (b) provides in relevant part that a member of the state employees’ retirement system is eligible for disability retirement if he or she “becomes permanently disabled from continuing to render the service in which he has been employed as a result of any injury received while in the performance of his duty as a state employee . . . .” Chapter 66 of the General Statutes, the chapter containing § 5-169, contains no statutory requirement for a hearing to be held by the board. Moreover, § 5-169 also is silent as to the issue of board hearings. We cannot conclude, therefore, that a “contested case” exists pursuant to the UAPA.

We conclude that the board’s decision was not an agency determination in a contested case and, therefore, the Superior Court lacked subject matter jurisdiction to hear the appeal. Having determined that the Superior Court properly found that it lacked subject matter jurisdiction, we do not reach the plaintiffs second claim regar ding collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Capital Community Technical College, where the plaintiff was employed at the time of the events at issue, also is a defendant.

       See General Statutes § 4-166 et seq.

       See General Statutes §§ 4-183 and 4-166 (2) and (3).

       Because our resolution of the issue of subject matter jurisdiction is dispositive of the appeal, we need not address the plaintiffs second claim. We must fully resolve any jurisdictional question before considering the merits of the appeal. See Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988).

       Capital Community Technical College formerly was known as Greater Hartford Community College.

       Neither the plaintiff nor the defendant appealed from the commissioner’s decision. See Bailey v. State, 65 Conn. App. 592, 594, 783 A.2d 491 (2001). Following further hearings, the commissioner issued a supplemental finding stating that the plaintiff was totally disabled from May 17,1991, until January 20, 1994. On the basis of that finding, the commissioner ordered the defendant to pay “specific compensation and fees owed to the plaintiff.” Id. The defendant appealed from the commissioner’s supplemental findings to the workers’ compensation review board. Id. On September 3,1996, the workers’ compensation review board reversed the commissioner’s findings and awards, and remanded the matter to the commissioner for further proceedings to determine the extend of the disability. Id. The plaintiff appealed to this court from the decision of the workers’ compensation review board, and this court dismissed the appeal for lack of a final judgment. Id., 594-95.
      Thereafter, the commissioner conducted additional hearings to determine the extent of the plaintiffs disability. Id., 595. The plaintiff filed a motion for a protective order concerning independent medical examinations, which the commissioner granted. Id.
      After the hearing on remand, the commissioner ordered the defendant to pay temporary total disability and the plaintiffs medical bills for the period of April 30, 1991, through January 20, 1994. Id. The commissioner also ordered the defendant to pay to the plaintiff “ ‘the $12,000 attorney’s fee award previously assigned by [the commissioner] which has not been appealed’ ” and an attorney’s fee of $7500 for the defendant’s unreasonable contest of the plaintiffs claim for benefits. Id. The defendant appealed to the workers’ compensation review board, which, in turn, affirmed all of the commissioner’s award except for the $12,000 award of attorney’s fees. Id.
      The plaintiff appealed from the workers’ compensation review board’s reversal of the $12,000 attorney’s fees award. Id., 593. The defendant cross appealed from the workers’ compensation review board’s January 12 and November 30,1999 decisions. Id., 595. We affirmed the decision to deny the award of $12,000 in attorney’s fees. Id., 605. On the defendant’s cross appeal, we reversed the January 12 and November 30, 1999 decisions. Id. The case was remanded to the commissioner for further proceedings. Id., 605-606.

       The notice of decision was issued by the board on April 20, 2001.