author: MIHALAKOS, J.

text:
    IN RE AMBER B.

    (AC 19700)
    O’Connell, C. J., and Foti and Mihalakos, Js.

      Argued December 7, 1999
    officially released March 7, 2000

      Matthew E. Naclerio, for the appellant (respondent father).

      Renee Bevacqua Bollier, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Albert J. Oneto III, for the minor child.

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

MIHALAKOS, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his daughter pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). The respondent claims that the court improperly (1) found that he failed to achieve sufficient personal rehabilitation, (2) found that the department of children and families (department) used reasonable efforts to reunite the child with him, (3) shifted the burden of proof to him as to whether reasonable efforts were made to reunify him with the child by allowing the petitioner, the commissioner of children and families (commissioner), to show that remedial services were provided to the family generally and not to the respondent individually, (4) considered matters relative to his alcoholism that occurred subsequent to the filing of the petition to terminate his parental rights as a basis for its findings in the adjudication phase of the proceedings, and (5) found that termination of his parental rights was in the best interests of the child. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The child was bom on August 16, 1995. On September 8, 1995, she was scalded in hot water and suffered second degree bums on 30 percent of her body. Her parents failed to seek immediate medical attention. The next day, she was placed in Yale-New Haven Hospital, and the department sought an order of temporary custody. On September 12, 1995, the court granted the order. The department offered the parents remedial services, including five classes at Southern Connecticut State University (university), beginning on January 20, 1996, to improve their parenting skills. On February 7, 1996, expectations were signed with the department wherein, inter alia, the parents were to complete parenting classes and cooperate with family counseling. They also were expected to maintain adequate housing and income, to provide safe conditions at home and, further, to refrain from substance abuse. The family also was offered services from Yale Intensive Home Based Child and Adolescent Psychiatric Services from February 22, 1996, to January, 1997. Other agencies and groups that worked with the family up to the time of the filing of the petition for termination of parental rights included the Boys Village Youth and Family Services, Inc. (Boys Village), the state departments of social services and mental retardation, Visiting Nurse Association, Yale Child Study Family Support Services, Easter Seals and Intensive Family Prevention Services.

On September 17, 1996, the respondent signed court expectations specifically addressed to him. The expectations required, inter alia, that the respondent participate in parenting counseling with emphasis on anger management and in alcohol counseling by obtaining an evaluation through Advanced Behavioral Health, and that he refrain from substance abuse. The department offered in-home services through Boys Village, which included parent education assessment, and mental health support and assistance with housing and medical issues. Furthermore, Michael Kaplan, a psychologist from Yale Child Study Center, performed an assessment to determine what the child’s needs were and what services she would require. His assessment revealed that the child was significantly delayed in most areas of developmental functioning.

Despite signing expectations on two separate occasions to participate in parental counseling, the respondent did not participate in such counseling. In February, 1998, the respondent had an alcohol relapse while undergoing treatment for alcohol abuse. Later, in the fall of 1998, the respondent had an alcohol-related incident, which prompted the child’s mother to ask him to move out of the house.

Procedurally, the child was adjudicated neglected and committed to the custody of the department on May 15,1996, for a period of twelve months. On January 12, 1998, the petition to terminate the parents’ parental rights was filed. Petitions for extensions of commitment were granted on May 8,1997, April 23,1998, and January 15,1999. The court granted the commissioner’s termination petition, finding by clear and convincing evidence that the respondent had failed to achieve sufficient personal rehabilitation as required under § 17a-112 (c) (3) (B). Additional facts and procedural history will be discussed where relevant to issues in this appeal.

I

The respondent claims first that the court improperly found that he failed to achieve sufficient personal rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible position in the child’s life. We disagree.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999).

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . Our Supreme Court has held that General Statutes (Rev. to 1989) § 17-43a (b) (2) [the predecessor to § 17a-112] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court under [§ 17a-112 (c) (3) (B)] that the evidence is clear and convincing that the parent has not rehabilitated [himself] will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . In re Christina V., 38 Conn. App. 214, 220-21, 660 A.2d 863 (1995).” (Internal quotation marks omitted.) In re Marvin M., 48 Conn. App. 563, 578, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998).

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).” (Internal quotation marks omitted.) In re Jessica S., 51 Conn. App. 667, 674-75, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).

Here, there was ample evidence to support the court’s finding, by clear and convincing evidence, that the respondent failed to achieve sufficient personal rehabilitation. The court found that the respondent only attended one of the university’s parenting classes and expressed to the department disdain for such classes, stating that he did not need such assistance. Furthermore, he failed to avail himself sufficiently of the services offered by Yale Intensive Home Based Child and Adolescent Psychiatric Services and the other service providers.

The court also found that the respondent had a significant alcohol problem that called into question his ability to be an appropriate parent for the child. Barbara P. Berkowitz, a psychologist and an expert in clinical psychology, was appointed as an evaluator by the court. She testified that in her opinion the respondent had not resolved his alcohol dependence, was not committed to after care for the child and had no understanding of her special needs.

The respondent claims that he substantially complied with the court-ordered expectations and that he successfully rehabilitated himself. The court, however, found that he failed to exercise any initiative, was late in addressing his alcohol problem and that the department made reasonable efforts to reunify him with the child. The court found that at the time of the termination petition the respondent had not risen to the level of being a useful parent nor would that status be achieved in a reasonable time. See In re Migdalia M., 6 Conn. App. 194, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). We are not persuaded, therefore, that the court improperly found that the respondent failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (c) (3) (B).

II

The respondent claims next that the court improperly found that the department utilized reasonable efforts to reunite him with the child. He claims that the remedial services were provided primarily to the mother and not to him. We disagree.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Marvin M., supra, 48 Conn. App. 577-78.

General Statutes (Rev. to 1997) § 17a-112 (e) requires, in relevant part, that the court consider and make written findings as to the timeliness, nature and extent of services available to facilitate a reunion of parent and child. In its memorandum of decision, the court found that appropriate and timely services were provided, including psychological counseling, transportation assistance, parenting and substance abuse counseling, and visitation coordination. The court found that the respondent attended only one of the parenting classes. Furthermore, the respondent was not the primary parent, and he had no intention, nor the ability, to be a full-time caretaker for the child. We therefore conclude that there was clear and convincing evidence that the department did everything it reasonably could to reunify the respondent with his child and that it was the respondent’s conduct that led to the failure of those efforts.

Ill

Next, the respondent claims that the court improperly shifted to him the burden of proof as to whether reasonable efforts were made to reunify him with the child by allowing the commissioner to show that remedial services were provided to the family generally and not to him individually. We disagree.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part that “[t]he Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” “The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof.” (Internal quotation marks omitted.) In re Savanna M., 55 Conn. App. 807, 812, 740 A.2d 484 (1999). Furthermore, “reasonable efforts means doing everything reasonable, not everything possible . . . [but] such efforts should not make it impossible to attain reunification in a given case.” In re Eden F., 48 Conn. App. 290, 312, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999).

In this case, the respondent denied being the child’s primary caretaker and, further, that the remedial services were all available to him. The respondent’s claim is without merit because he never was denied access to the services offered. In fact, over the course of three years, the respondent was offered at least one-half dozen services to facilitate reunification. He signed expectations on two separate occasions that he would participate in parental counseling but claimed that he did not need such assistance. The department even adjusted its schedule to accommodate his visitation. We conclude that the burden of proof was not shifted to the respondent as to whether the department made reasonable efforts to reunify him with the child because the department made such reasonable efforts that were specifically directed to him on numerous occasions.

IV

The respondent claims next that the court improperly considered, as a basis for its adjudicatory findings, matters relative to his alcoholism that occurred subsequent to the filing of the termination petition. We disagree.

“In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial.” In re Romance M., 30 Conn. App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).

It is axiomatic that the court can rely on factors occurring after the date of the filing of the petition to terminate parental rights when considering if additional time would promote rehabilitation. In re Sarah M., 19 Conn. App. 371, 377, 562 A.2d 566 (1989). The respondent urges this court to rewrite the trial court’s determination that postfiling facts were utilized for dispositional purposes only. The court indicated in its memorandum of decision that it considered certain postadjudicative facts for dispositional purposes only, and we are not disposed to disturb the court’s determination. The court, therefore, properly considered for dispositional purposes facts that arose subsequent to the filing of the termination petition.

V

The respondent’s final claim is that the court’s finding that termination of his parental rights was in the child’s best interests was neither legally correct nor factually supported. We disagree.

The respondent argues that all of the evidence presented indicates that termination of his parental rights is not in the child’s best interest. He claims that appropriate and timely services never were offered, that the department failed to use reasonable efforts to reunify him with the child, that he complied with court-ordered expectations and that he was prevented by the mother from having a meaningful relationship with the child. This last claim is a repository of all the claims we previously addressed. This claim, therefore, must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother’s parental rights also were terminated, but she did not appeal from the court’s judgment. We refer to the respondent father as the respondent in this opinion.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    HOUSING AUTHORITY OF THE CITY OF STAMFORD v. LOCAL 1303-260, COUNCIL 4, AFSCME
    (AC 18276)
    Lavery, Landau and Hennessy, Js.

      Argued December 14, 1999
    officially released March 7, 2000

      J. William Gagne, Jr., with whom, on the brief, was Jason W. Cohen, for the appellant (defendant).

      Erie M. Higgins, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant, Local 1303-260, Council 4, AFSCME (union), appeals from the judgment of the trial court vacating, in part, an arbitration award rendered by the state board of mediation and arbitration (board). The union claims that the court improperly (1) vacated a portion of the award, pursuant to General Statutes § 52-418 (a) (4), because it lacked authority to do so and (2) denied the union’s motion to remand the matter in violation of General Statutes (Rev. to 1995) § 52-418 (b). We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff, housing authority of the city of Stamford (housing authority), owns and operates state and federally subsidized public housing in Stamford. The union represents the housing authority employees, including Edith Cabello. The housing authority and the union entered into a collective bargaining agreement, which provides that if the parties cannot resolve grievances informally they shall submit them to the board.

In 1991, the housing authority hired Cabello to work as an admissions clerk and subsequently as a clerk typist I and clerk typist II. Sometime prior to August, 1995, the housing authority, faced with federal budget reductions, reorganized its workforce, which eliminated Cabello’s position. Because she no longer had a job, Cabello applied for one of two positions, work order dispatcher (dispatcher) or clerk typist II (typist). The housing authority interviewed, tested and evaluated the candidates for both positions but did not offer Cabello either position. Cabello filed a grievance with the union on August 2, 1995, claiming that the housing authority wrongfully refused to offer her a job. Because the parties were not able to resolve the grievance informally, the matter was submitted to the board.

Prior to the hearing the board held on December 13, 1996, the union withdrew that portion of the grievance contesting the housing authority’s failure to give Cabello the typist position. The submission for arbitration was: “Did the Stamford Housing Authority violate the collective bargaining agreement when it failed to promote . . . Cabello to the position of work order [dispatcher]? If so, what shall the remedy be?” Neither party addressed or briefed the claim concerning the typist position. On May 13, 1997, the board rendered its decision, concluding that the housing authority had not discriminated against Cabello with respect to the dispatcher position. The board, however, ruled that the housing authority had deprived Cabello of certain rights she had with respect to the typist position and ordered that she be offered that or a comparable position with back pay and benefits comparable to those of the typist position.

The parties agreed that the board’s award exceeded the scope of the submission. The housing authority filed an application to correct or modify the award, pursuant to General Statutes § 52-419, or in the alternative to vacate the arbitration award, pursuant to § 52-418. The housing authority claimed that by referring to the typist position, the board’s award was outside the scope of the submission and that the board exceeded its powers or so imperfectly executed them that a mutual and definite award was not made. See General Statutes § 52-418 (a) (4). The housing authority asked the court, pursuant to § 52-419 (a) (2), to modify or correct those portions of the discussion section of the board’s written decision that referred to the typist position and the section of the document entitled “award” by striking them. In the alternative, the housing authority argued that the award should be vacated pursuant to § 52-418 (a).

The union thereafter filed a motion asking the court to remand the matter. The union sought to have the matter sent back so the board could issue an award within the scope of the submission. In its memorandum of law in support of its opposition to the housing authority’s application, however, the union sought to have the court delete the reference to the typist position in the board’s written decision and substitute the dispatcher position. The housing authority filed a motion to dismiss as untimely the union’s motion to remand. The court rendered its decision on March 17, 1998, vacating the award with respect to the typist position, pursuant to § 52-418 (a) (4). The union appealed.

“Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) International Assn. of Fire Fighters, Local 1339, AFL-CIO v. Waterbury, 35 Conn. App. 775, 778, 647 A.2d 361 (1994). “Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . . The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. ... An application to vacate or correct an award should be granted when an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.” (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the awar d contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). The question presented to this court requires us to construe a statute, which is a question of law. Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995).

I

The union first claims that the court improperly vacated a portion of the board’s award because it lacked authority to do so. We disagree.

The basis of the union’s claim is the final paragraph of the court’s memorandum of decision, to wit: “The court agrees with the [housing authority] that the portion of the board’s decision that was within the scope of the submission should be accepted and that the portion relating to the position of Clerk Typist II, which was outside the scope thereof, should be vacated. Therefore, the board’s ruling rejecting the grievance relating to the position of Work Order Clerk/Dispatcher is affirmed, but the remedy or award, which both the [housing authority] and the [union] agree was outside the scope of the submission is, therefore, vacated. General Statutes § 52-418 (a) (4).” (Emphasis added.)

Because the puipose of arbitration is to prevent litigation, it is favored by the law and is to be encouraged as the manner of settling labor disputes. Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 612-13, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). “[T]he submission should set forth the questions to be resolved in such a manner as to show clearly what disputes are to be arbitrated. . . . The charter of an arbitrator is the submission and no matter outside the submission may be included in the award. . . . Ordinarily, an award which does not respond to the submission cannot be upheld. . . . It is void to the extent to which it is outside the submission. ... To that extent the award must be vacated by the Superior Court upon proper application. ... On the other hand, if part of an award is within the submission and part of it is not, the former may be sustained and the latter rejected if the two can be separated without doing an injustice.” (Citations omitted; internal quotation marks omitted.) Id., 613-14; see also Bodner v. United Services Automobile Assn., 222 Conn. 480, 489, 610 A.2d 1212 (1992) (where specific questions submitted for arbitration, portion of award outside submission void); Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 564, 457 A.2d 310 (1983) (application to correct should be granted only where by doing so merits of portion of award within submission are not affected).

The essence of the union’s claim is that although § 52-418 (a) (4) permits the court to vacate an entire award, it does not permit the court to vacate part of an award. The union asserts that by vacating part of the board’s award, the court actually modified the award, which § 52-418 does not permit. Although we acknowledge that § 52-418 (a) (4) is not the statutory provision that permits judicial modification of an award, the court is permitted to modify or correct an award if it “is imperfect in matter of form not affecting the merits of the controversy” pursuant to § 52-419 (a) (3). Whether the court cited § 52-418 as the result of an oversight or clerical error does not matter, as it had authority to modify the award pursuant to § 52-419. Furthermore, “[w]e can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

The parties’ submission was clearly limited to the dispatcher position. The board discussed the dispatcher position and concluded that the housing authority had not discriminated against Cabello. In addition, however, the board addressed the typist position and crafted a remedy in a separate section of the award. The court properly ordered those sections of the award dealing with the typist position stricken because they did not affect the merits of the controversy, which involved only the dispatcher position.

The union also claims that by striking the “award” section of the arbitrators’ decision the court effectively vacated the entire award. The union appears to argue that because the board entitled a section of its decision “award” and the court vacated that section of the document, the entire award was vacated. The court referred to the “award” section of the document as the board’s remedy. We agree that this section of the document constitutes the board’s remedy with respect to the typist position. As we concluded previously, the typist position was outside the scope of the submission, and the trial court properly struck anything having to do with it from the award. As our Supreme Court stated in Local 63, Textile Workers Union, if part of an award is within the submission and part of it is not, the court may vacate any portion of the award that does not disturb the merits of the arbitration. Local 63, Textile Workers Union v. Cheney Bros., supra, 141 Conn. 613. The court, therefore, did not effectively vacate the board’s entire award.

II

The union’s second claim is that the court abused its discretion by not remanding the matter to the board for a new hearing in violation of § 52-418 (b). We do not agree.

The union’s claim appears to be based on an assumption that the board incorrectly substituted the typist position for the dispatcher position in the “award” section of the decision. The union argues that the court improperly refused to remand the matter to the board so that the board could rehear the arbitration and, in effect, correct the award. As explained in part I of this opinion, the court modified the board’s award by striking those sections that concerned the typist position. The court did not vacate the entire award, and its decision completely resolved the parties’ dispute pursuant to the submission. There was, therefore, no need to remand the matter to the board. Factually, the matter does not meet the condition precedent of § 52-418 (b), namely, vacation of the award. The court properly did not remand the matter for a new hearing, as § 52-418 (b) does not apply to the facts of the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       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 the award if it finds any of the following delects ... (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.”

       General Statutes (Rev. to 1995) § 52-418 (b) provides: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       General Statutes § 52-419 (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 modifying or correcting the award if it finds any of the following defects ... (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       The court did not address the timeliness issue with respect to the union’s motion because it resolved the matter pursuant to the housing authority’s application.

       See footnote 3.


text:
    STATE OF CONNECTICUT v. MATTHEW ROBINSON
    (AC 19242)
    Laveiy, Schaller and Daly, Js.

      Argued December 2, 1999
    officially released March 7, 2000

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Matthew Robinson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), claiming that the trial court improperly (1) admitted an out-of-court statement of a witness, (2) instructed the jury on consciousness of guilt relative to the defendant’s conduct subsequent to the crime and (3) instructed the jury on the presumption of innocence and the reasonable doubt standard. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts, which are relevant to this appeal. On May 19, 1997, at approximately 3 p.m., the defendant and the victim, Raymond Felix, were seen arguing outside the P.T. Bamum apartment complex in Bridgeport. During this argument, the defendant asked the victim, referring to a prior altercation, why the victim had shot him. The victim responded that he had shot the defendant because he thought the defendant was a “punk.” The argument escalated and the defendant fired two shots at the victim. One bullet grazed the back of the victim’s head and the second penetrated his chest and lung. The victim died from internal bleeding.

After the shooting, the defendant fled in one direction while others at the scene ran in another. The defendant stated just minutes after the shooting, “I got that motherfucker now. He shot me; I shot his ass back.” The defendant was arrested on June 3, 1997.

I

The defendant claims that the court improperly admitted into evidence for substantive purposes a statement made by a witness, Deron Green, to Detective Robert Martin at the state police barracks in Bridgeport on May 29, 1997. We disagree.

The following additional facts are relevant to this issue. Green was arrested on May 29,1997, on unrelated charges. While at the state police barracks, he spoke with Martin regarding the shooting. Green told Martin the following, which is contained in a signed and sworn statement he gave to Martin: Green saw the defendant during the entire day of the shooting. Green asked the defendant if he was going to do anything in response to the victim’s having previously shot the defendant. The defendant initially “didn’t want any problems” with the victim. The victim then drove by, pointed at the defendant and laughed at him. The defendant left in a car and returned with a weapon. The defendant then found and shot the victim once in the face and then a second time when the victim was on the ground.

When Green was called to testify at trial, he was shown the statement he had made to police. Green testified that although he recognized the signature on it as being his, he did not remember making the statement because he was high on marijuana at the time. Showing the statement to Green did not refresh his recollection. The statement was admitted into evidence over an objection by the defendant.

The issue of whether admission of the statement was proper revolves around State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). “In Whelan, we adopted the rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in the statement; and (4) the declarant testifies at trial and is subject to cross-examination.” State v. Hopkins, 222 Conn. 117, 123, 609 A.2d 236 (1992). A Whelan claim is evidentiary in nature and, accordingly, “the defendant ‘bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial.’ ” State v. Paulino, 223 Conn. 461, 478, 613 A.2d 720 (1992). “The admissibility of evidence, mcludmg the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. . . . On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

The defendant challenges the admission of the statement under the fourth prong of Whelan and contends that Green was not sufficiently subject to cross-examination to meet Whelan's requirements. The United States Supreme Court’s discussion of the phrase “subject to cross-examination” in rule 801 (d) (1) of the Federal Rules of Evidence1 ** proves instructive. See generally George v. Ericson, 250 Conn. 312, 333-34, 736 A.2d 889 (1999) (McDonald, J., concurring) (noting “profound effect” of Federal Rules of Evidence on Connecticut’s law of evidence). “Ordinarily a witness is regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists. But that effect is not produced by the witness’ assertion of memory loss—which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement.” United States v. Owens, 484 U.S. 554, 561-62, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988).

The defense had a sufficient opportunity to test the witness’ claim regarding his loss of memoiy and also was afforded a sufficient opportunity to attack his credibility. The defense asked Green about his numerous prior felony convictions. The defense asked whether cases still were pending against Green when he made the statement to Martin. The defense asked whether Green’s statement was motivated by a desire to “cut a deal” regarding the pending criminal matters against him if he provided useful information. The court did not impose any hmitations on the defense in these inquiries.

Furthermore, Green’s forgetful testimony was placed within a context in which the jury could assess its credibility. Other witnesses testified that they saw Green at the scene of the crime. Martin testified that Green made the statement and exhibited no characteristics of being under the influence of drugs at the time. The jury heard sufficient, testimony from which it could determine whether Green’s statements or testimony were worthy of credence. Accordingly, the assessment of Green’s credibility against the testimony of other witnesses to determine his veracity was customary grist for the jury mill and he was sufficiently subjected to cross-examination. See State v. Whelan, supra, 200 Conn. 750. The defense is guaranteed “only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Internal quotation marks omitted.) State v. Menzies, 26 Conn. App. 674, 685, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992).

In sum, the defendant on cross-examination “took full advantage of the opportunity afforded him to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Pittman, 209 Conn. 596, 603, 553 A.2d 155 (1989). The record supports our conclusion that Green was sufficiently subject to cross-examination and that the fundamental purposes of cross-examination were met. See State v. Outlaw, 216 Conn. 492, 506, 582 A.2d 751 (1990). Accordingly, the dictates of Whelan were fulfilled, and the court did not abuse its discretion in admitting Green’s statement for substantive purposes.

II

The defendant next contends that the court improperly instructed the jury regarding his conduct subsequent to the crime as tending to prove consciousness of guilt. We disagree.

The defendant concedes in his brief that our Supreme Court previously has upheld similar consciousness of guilt instructions, yet asks us not to follow them. “It is not, however, within our province to overrule or discard the decisions of our Supreme Court.” State v. Vas, 44 Conn. App. 70, 78, 687 A.2d 1295, cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). Furthermore, the use of a consciousness of guilt instruction regarding flight from the scene of the crime is well established. “Flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Citations omitted; internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 651-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). “ ‘The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.’ State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).” State v. Freeney, 228 Conn. 582, 594, 637 A.2d 1088 (1994).

The defendant’s additional claim that the court’s flight instruction was insufficiently evenhanded also holds no merit. The challenged instruction contains no stamp of approval on the state’s version of events. The court discussed the defendant’s proffered reasons for leaving the area and noted that evidence of flight does not need to carry any inference of guilt. This discussion was more than was necessary, as our Supreme Court has rejected claims that a court has even a threshold responsibility to instruct the jury that flight evidence may have an innocent explanation. See, e.g., id., 593-94. A flight instruction does not need to include “all the possible innocent explanations for [the defendant’s] flight.” State v. Wright, supra, 198 Conn. 280. The court discussed the defense theories regarding the defendant’s departure from the area and, thus, instructed more favorably to the defense than was necessary regarding flight. Therefore, the flight instruction was not unbalanced or improper and did not constitute an abuse of discretion by the court.

Ill

A

The defendant also asserts that the court misled the jury on the law of reasonable doubt. He challenges the court’s instruction that a reasonable doubt is “such a doubt as in the serious affairs that concern you, you would pay heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.” We disagree. Since the defendant did not preserve this issue at trial, review is limited to the precepts articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant concedes in his brief that challenges to similar instructions have been rejected by this court and our Supreme Court, and on this point we do agree with the defendant. See, e.g., State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994); State v. Gomez, 225 Conn. 347, 353-54, 622 A.2d 1014 (1993); State v. Smith, 210 Conn. 132, 147-50, 554 A.2d 713 (1989). Despite the weighty authority that the defendant states is against him, he asks us to ignore this Supreme Court precedent and hold that these instructions are impermissible. As we noted in part II of this opinion, this court cannot overrule or discard the decisions of our Supreme Court. State v. Vas, supra, 44 Conn. App. 78. Accordingly, we are bound to follow the decisions upholding these well-settled instructions regarding the concept of reasonable doubt.

B

The defendant challenges the court’s instruction to the jury that the presumption of innocence and reasonable doubt exist to protect the innocent and not the guilty. Like the defendant’s prior argument, the defendant’s assertion faces a wall of recent Supreme Court decisions rejecting challenges to very similar instructions. See, e.g., State v. Watson, 251 Conn. 220, 227-28, 740 A.2d 832 (1999); State v. Schiappa, 248 Conn. 132, 167-77, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). Although the defendant presents a litany of cases that disagree with this view; e.g., United States v. Doyle, 130 F.3d 523, 538 (2d Cir. 1997); it is the decisions of our Supreme Court that we must follow in this matter. See State v. Vas, supra, 44 Conn. App. 78.

The judgment is affirmed.

In this opinion the other judges concurred.

       Green’s signed and sworn statement to Martin states in relevant part:
      “[Detective Robert Martin]: What do you want to tell me?
      “[Deron Green]: First, I had seen [the defendant] throughout the whole day. He was standing with us, talking with somebody else, and he was asking him how he was since he got shot [by the victim]. They asked [the defendant] what he was going to do, like if he was going to get him back, and he said, ‘Yay.’ Dino walked up to [the defendant] and said that he heard that [the defendant] was going to shoot them, and [the defendant] said that he never said that. You did what you had to do and it was over. [The defendant] said he didn’t want any problems. Then Dino walked away. Then after that, about two minutes later, [the victim] drove by in the car with somebody, and [the victim] pointed at [the defendant] and started laughing. [The defendant] was asking around if anyone had a gun, and everyone said no. When everyone said no, [the defendant] jumped in his car and said he would be right back. “Then he left and came back like ten minutes later. He had two other guys with him. They got out of the car. They all had guns, and [the defendant] told them that they only needed one gun because when they got out of the car they were all cocking [their guns]. They put the guns back. They walk around, I think, building 15 or 16. [The defendant] walks around the building and sees [the victim]. [The victim] said, ‘What’s up?’ [The victim] told [the defendant] that he wasn’t going to do shit and that he was a punk. Then [the defendant] got like all pumped up and pulled the gun out and shot him in the face.
      “Q. Then what?
      “A. [The victim] tried to run. He took like two steps and then he fell. Then [the defendant] shot him again while he was on the ground.
      “Q. Then what?
      “A. [The defendant] and the other two kids ran back to the front of the building, and they jumped in the car and left.
      “Q. What kind of car did they leave in?
      “A. Brownish, goldish, four-door Mazda, I think a 323 or something. It was smaller.
      “Q. Where were you when you observed these things?
      “A. I was standing right there.
      “Q. Do you know why [the defendant] shot [the victim]?
      “A. Because he shot [the defendant] like a week or two before that. . . .”

       Green also was shown a photographic array with one face circled. Green recalled some of the discussion he had with Martin regarding the photographic array, but he did not remember circling any one of the faces offered.

       The defendant invites us to examine this issue as a constitutional question, claiming that admission of the statement unduly restricts the defendant’s right of confrontation under the Connecticut and United States constitutions. We decline to do so. “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” (Internal quotation marks omitted.) State v. Moye, 214 Conn. 89, 95, 570 A.2d 209 (1990). Simply put, the defendant “has put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). “[I]t would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997).

       Rule 801 (d) of the Federal Rules of Evidence provides in relevant part: “Statements which are not hearsay. A statement is not hearsay if—
      “(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person . . .

       The trial court instructed the jury in relevant part: “I’m going to give you a brief instruction on a concept that we call in law consciousness of guilt. Whenever a person is on trial for a criminal offense it’s proper to show the person’s conduct subsequent to the alleged criminal offense, which may have been influenced by that act. [The] state here claims evidence of flight and further claims that the defendant left the area for a period of time after the alleged crime in this particular case. Such conduct, when unexplained, tends to prove consciousness of guilt. The flight of a person accused of a crime is a circumstance which, when considered together with all of the facts of the case, may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It does not raise a presumption of guilt. It is to be given the weight to which you, the jury, think it is entitled, to under the circumstances. Here, there was evidence produced by state’s witnesses that the defendant fled from the scene of the alleged crime. There also was evidence that he absented himself from the Bridgeport area and stayed in homes of his friends and his sister in the Waterbury area. He, of course, testified that he was not at the scene at all and that he was not immediately aware of the warrant for his arrest, that he . . . often visited his family in Waterbury, that he was there for enjoyment and not for evasive reasons. ... So, if you find that he was in fact fleeing the scene of the crime, that he was subsequently secreting himself for the purpose of avoiding apprehension, you may consider it as evidence of his consciousness of guilt. It is, of course, up to you to give the evidence the weight which you think it’s entitled, if any.”

       “ [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. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       Alternatively, the defendant urges us to exercise our supervisory powers to bar consciousness of guilt instructions. “Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998); see State v. Portee, 55 Conn. App. 544, 569-70, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000). Since the issues here do not rise to the extraordinary status described previously, we do not consider this an appropriate case in which to exercise our supervisory powers.

       The court instructed the jury in relevant part: “It’s the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence, which the law imputes to every person so charged by making the state meet its burden of proof of guilt beyond a reasonable doubt. You must keep in mind that this rule of law is made to protect the innocent and not the guilty and if the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it’s the sworn duty of the jury to enforce the law and to render a verdict of guilty.”


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. JOHN E. GUNDEL
    (AC 18475)
    Foti, Spear and Cretella, Js.
    Argued November 2, 1999
    officially released March 7, 2000

      Gary A. Mastronardi, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

CRETELLA, J.

The defendant, John E. Gundel, appeals from the trial court’s denial of his motion to withdraw his pleas of nolo contendere. Pursuant to Practice Book § 39-27 (3), the defendant claims that the sentence ultimately imposed exceeded that which he reasonably believed had been previously accepted by the court as a result of a plea agreement with the state. The defendant further claims that the court improperly denied him an evidentiary hearing. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant resided at 57 Park Street in Stratford. He was accused of sexual assault on several members of a neighbor’s family. On February 26,1998, pursuant to a plea bargain reached with the state,* * the defendant entered pleas of nolo contendere to a substitute information charging him with two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The sentence imposed pursuant to the plea agreement, and as recommended by the state, was to be five years incarceration, execution suspended after ninety days, with three years probation. This appeal relates to one of the two conditions of probation imposed by the court.

At the start of the plea proceeding on February 26, 1998, the prosecutor recommended a sentence of five years incarceration, execution suspended after ninety days, with three years probation. The prosecutor also set forth the conditions of the defendant’s probation as follows: (1) “He is to have no initiated contact whatsoever with . . . any member of the [victims’] family residing at 35 Park Street in Stratford,” and (2) “once his probation commences and once he is sentenced, he is to leave his residence at 57 Park Street in Stratford, Connecticut.”

The defendant did not object to or seek correction of any of the terms or conditions of the plea bargain as recited by the prosecutor. The court inquired whether the defendant was to receive any psychological treatment or evaluation to which the state responded, “No, Your Honor. One of the reasons for the pleas to these charges was to avoid those types of conditions.” Defense counsel then informed the court that the state’s description was “an accurate statement regarding the proposed disposition.”

After the court had concluded the standard line of questioning for a plea canvass, the following colloquy transpired:

“The Court: Mr. Gundel, when you appear before me for sentencing, which will be on April 30th, your sentence will be five years in the state’s penitentiary, suspended after ninety days. You’ll be placed under the supervision of the office of adult probation for a period of three years. Special conditions of probation: (1) No initiated contact with any members of the [victims’] family. You heard the names before, but at the time of sentencing I’ll outline them each individually, (2) And that you leave your—and not live or be present at . . . [your] residence located at 57 Park Street, Stratford, Connecticut. That’s the plea negotiation; is that the way you understood it, sir?
“[Defense Counsel]: May I have just one second, Your Honor?
“The Court: Yes. [A sidebar conference took place between the court, defense counsel and the state.]
“[Defense Counsel]: Sorry, Your Honor. We are prepared to proceed.
“The Court: All right. . . . Mr. Gundel, I think that really covered all the questions that I had for you. Do you have any questions of me now?
“[The Defendant]: No, Your Honor. . . .
“The Court: And that’s the plea negotiation as you understood it; is that correct?
“[The Defendant]: Yes, sir.
“The Court: Then I’ll see you on April 30th for sentencing.” (Emphasis added.)

Thereafter, by a motion filed March 19, 1998, the defendant moved to withdraw his pleas pursuant to Practice Book § 39-27 (3). At sentencing, defense counsel raised his concerns with the court regarding the second condition of probation and requested a continuance so that counsel could file a brief or memorandum of law in support of the motion to withdraw the defendant’s pleas.

The state objected to any continuance because the present disposition, that of pleading to offenses that were not sex crimes to avoid sex offender treatment in exchange for jail time, was the suggestion of the defendant and because he had no constitutional or other basis for claiming that he did not understand the plea disposition. Defense counsel conceded that what the state claimed was not in dispute, but argued that the court’s interpretation of the provision “to leave,” as including never being present at the defendant’s residence, was different from what the defendant had agreed to and offered to present evidence in that regard. Defense counsel argued that the defendant always had understood that the condition of probation would include that he not reside at his former residence, but that the defendant was not aware that the condition also required that he not be present there. Defense counsel then suggested that the court might need to go “beyond the transcript” of the February 26, 1998 proceeding to take into account the discussion at the sidebar conference that took place immediately after the court stated the second condition of probation. The state suggested that if the defendant sought any modification of the condition of probation he could address that particular issue in the future. The court agreed with the state and proceeded with the sentencing, noting that the victims’ family members were all present in court. After reviewing the transcript, which the court had ordered relating to the initial canvassing, the court determined that there was no reason for a continuance.

The court’s interpretation of the second condition of probation, that the defendant not live or be present at his residence on Park Street, is the crux of this appeal. According to the court, the defendant, after serving his three month sentence, was not only required, as a condition of probation, to move out of his residence at 57 Park Street but was prohibited from even visiting his wife and stepdaughter at that same address. The defendant claims that when he signed the plea agreement he believed he was able to visit the house either to see his wife and stepdaughter or to “fix a leak” if one happened to occur. The court, however, had explained that the condition of probation was that the defendant “leave . . . and not live or be present at 57 Park Street.” The court then asked the defendant if “that’s the plea negotiation as [he] . . . understood it,” to which the defendant responded, “Yes, sir. ” The defendant argues that he believed that the sidebar conference, which was held immediately after the explanation of the second condition but before he agreed to the terms, clarified that condition of probation in his favor. The defendant claims that when the court asked if “that’s the plea negotiation as [he] . . . understood it”; (emphasis added); he answered yes because he interpreted the word understood to be referring to how he had understood the agreement throughout plea negotiations, namely, that he was to leave and no longer reside at 57 Park Street.

I

The defendant first claims that the court improperly denied his motion to withdraw his pleas. Specifically, he claims that the sentence ultimately imposed exceeded that which previously had been agreed to and accepted. We disagree.

“A guilty plea, once accepted, may be withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27]. ... Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Citations omitted; internal quotation marks omitted.) State v. Cooper, 55 Conn. App. 95, 104, 738 A.2d 1125, cert. denied, 251 Conn. 922, 742 A.2d 360 (1999).

The essence of the defendant’s claim is that the ambiguity created by the court’s use of the past tense (understood), rather than the present tense (understand), along with the defendant’s alleged understanding of the condition of probation throughout negotiations, should have constituted an adequate basis for the court to permit the defendant to withdraw his pleas. The defendant claims, therefore, that the court abused its discretion in denying the motion to withdraw his pleas.

The defendant claims that the word understood in the court’s inquiry, “And that’s the plea negotiation as you understood it,” was referring to the condition as he claims to have interpreted it throughout the negotiations, namely, that he is not to reside at 57 Park Street. After the proceeding ended, however, the defendant became aware that the court’s use of the past tense (understood) referred to the condition as the court had just stated it and, therefore, claimed that the sentence ultimately imposed by the court exceeded that which had been agreed to previously. Although the defendant places great importance on the difference in tense, we do not agree.

“In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 535-36, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). It is apparent from the transcript that the court reasonably could have found that the defendant knew that the court’s inquiry, “And that’s the plea negotiation as you understood it,” referred to the court’s explanation of the second condition as it had just stated it; hence, when the defendant responded, “Yes, sir,” he was agreeing to leave and not be present at 57 Park Street. Furthermore, under the circumstances, the court’s findings make common sense. It is reasonable to believe that the court could draw the inference that when the defendant was told he must leave, at the beginning of the proceeding, he understood that he was not to be physically present at his former residence; his residence was in the vicinity of the victims’ residence, and the defendant was a threat to the children in his neighborhood. It makes no common sense to interpret the phrase “to leave” the way the defendant claims he did; it would be impossible for the office of adult probation to enforce this condition if the defendant were allowed to visit the house at his pleasure.

Moreover, this condition, as stated by the court, neither prevented the defendant from seeing his family, which could visit him at his new residence, nor did it prevent him from seeing to repairs of his former residence. It does, however, prevent him from initiating contact with the victims’ family, which, by applying the principles of common sense to the phrase “to leave,” given the circumstances of the crime, is consistent with the rehabilitative purpose of the probation under which the defendant’s conduct would be governed. Furthermore, despite his protestations, the defendant agreed to those conditions of probation in exchange for what amounted to an extremely lenient sentence with a short time of confinement.

We conclude, therefore, that the record does not support the defendant’s claim that the sentence ultimately imposed exceeded that which had been accepted. The court, therefore, did not abuse its discretion by denying the defendant’s motion to withdraw his pleas.

II

Assuming the evidence is insufficient to grant the defendant’s motion to withdraw his pleas, the defendant’s final claim is that the court abused its discretion in denying him an evidentiary hearing to determine if his plea was knowing and voluntary. We disagree.

“In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true.” State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980). “An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively [establish] that the motion is without merit.” Id.

As discussed previously, the record conclusively establishes that there was no basis for the defendant’s motion to withdraw his pleas. Hence, based on the facts and the law addressed previously, we conclude that the court reasonably could have found that the defendant was fully aware of his pleas. The court therefore did not abuse its sound discretion in denying the defendant an evidentiary hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 39-27 provides in relevant part that one of the “grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance [is that] ... (3) The sentence exceeds that specified in a plea agreement which had been previously accepted . . .

       The defendant appealed to this court initially raising three issues: (1) that his pleas were entered without adequate knowledge of the nature of the charges to which the nolo contendere pleas were entered; (2) that the sentence ultimately imposed by the court exceeded that which he reasonably believed had been previously accepted by the court in a plea agreement; and (3) his pleas resulted from the denial of effective assistance of counsel. In his argument before this court, the defendant withdrew the first and third issues. This appeal, therefore, only relates to the second issue.

       Prior to the defendant accepting the plea bargain, the state fully discussed the disposition with the victims’ paren! s.

       The defendant stipulated that there was a factual basis for the pleas.

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       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 iiyury to such person or to a third person . . .

       Following the defendant’s approval of the prosecutor’s stated conditions, the trial court continued its canvass of the defendant:
      “The Court: Mr. Gundel, did you plead nolo contendere freely and voluntarily today and not as a result of any threats or promises in any way?
      “[The Defendant]: Yes, sir.
      “The Court: You are satisfied with the advice you received from your lawyer and you’ve had adequate opportunity to review this file with him?
      “[The Defendant]: Yes, Your Honor.
      “The Court: Mr. Gundel, do you understand that by your pleas today you gave up certain rights that you have, such as your right to a trial by a corut or a jury, your right to remain silent, not to incriminate yourself, your right to present evidence on your own behalf, your right to confront your accusers and require the state to prove the charges against you beyond a reasonable doubt in order to convict you, and your right to take an appeal at [the] end of the case if you had been found guilty? You realize you gave up those rights by your plea?
      “[The Defendant]: Yes, Your Honor.
      “The Court: Did you have an adequate opportunity to review the essential elements of each of these crimes with your attorney so you understand in each instance what the state would have had to prove beyond a reasonable doubt in order to convict you of them?
      “[The Defendant]: Yes, Your Honor.
      “The Court: Are you on probation or parole at the present time?
      “[The Defendant]: No, Your Honor.
      “The Court: Do you understand that I could have given you five years on each of the unlawful restraints in the first degree, another two years on each of the assault threes [and that] I could have run all those consecutive to one another so that the maximum penalty I could have imposed based on your pleas would have been [fourteen] years of incarceration? Do you understand that?
      “[The Defendant]: Yes, Your Honor. . . .
      “The Court: Do you understand that once I accept your plea, Mr. Gundel, you will not be able to withdraw it without my permission?
      “[The Defendant]: Yes, sir.
      “The Court: Have you understood each question I’ve asked you?
      “[The Defendant]: Yes, Your Honor.

        “The Court: Do you have any questions of me?
      “[The Defendant]: No. . . .
      “The Court: The court will find that the plea is freely, intelligently [and] voluntarily made with full understanding of the crimes charged after adequate, effective assistance of counsel.”

       Although the sentencing was set for April 30, 1998, it did not occur until May 12, 1998.

       Defense counsel did not have a memorandum in support of his motion to withdraw his pleas on that day for reasons that, as the trial court acknowledged, were beyond his control.

       The defendant could hire someone to fix the repairs.