author: SPEAR, J.

text:
    WILLIAM E. WILDIN v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 18603)
    Foü, Spear and Vertefeuille, Js.
    Argued October 19, 1999
    officially released February 15, 2000

      Francis J. Collins, for the appellants (defendant Arthur J. Peitler et al.).

      William E. Wildin, pro se, the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendants appeal from the trial court’s judgment overruling the determination by the freedom of information commission (commission) that the plaintiff, William E. Wildin, was not entitled to certain records that he requested from the defendants. The defendants claim that the trial court improperly substituted its judgment for that of the commission. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On September 23,1996, the plaintiff requested that the defendants provide him with numerous records, including “[a]ll correspondence/communications to or from the Mayor (and the Mayor’s office including staff and Town Council) to or from the Town Attorney (including the Town Attorney’s legal firm), from January 1, 1996 to the present.” The defendants complied with most of the plaintiffs requests but did not furnish all of the records.

The plaintiff appealed to the commission to obtain the unfurnished records, alleging that the defendants violated the Freedom of Information Act (act), General Statutes (Rev. to 1997) § 1-19. The commission found that the records that the plaintiff had requested were “located in at least fifty, and perhaps over a hundred, different files organized on a subject matter basis.” The commission then concluded that the plaintiff was not entitled to the unfurnished records because providing those records would require the defendants to conduct research, which it is not obligated to do under the act. The plaintiff appealed from the commission’s decision to the trial court and the court sustained the appeal. The defendants have appealed from the trial court’s decision.

The defendants contend that the trial court improperly substituted its judgment for that of the commission. Specifically, the defendants contend that the trial court improperly overruled the commission’s decision when the court determined that the plaintiffs records request, made pursuant to § 1-19, does not require the defendants to conduct research. We disagree.

We first note our standard of review of the defendants’ claim on appeal. We review the question as one of law because the trial court was required to determine whether the request, on its face, requires the defendants to conduct research.

“Cases that present pure questions of law . . . invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . . Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642-43, 708 A.2d 202 (1998). . . . Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998).” (Internal quotation marks omitted.) Bezzini v. Dept. of Social Services, 49 Conn. App. 432, 436, 715 A.2d 791 (1998).

We now turn to the issue of whether the plaintiffs request for records requires the defendants to conduct research. We conclude that it does not. The trial court noted that “research” is not defined by the commission in its decisions. Webster’s Third New International Dictionary, however, defines research as a “careful or diligent search: a close searching . . . studious inquiry or examination . . . .” Here, the plaintiff had specifically identified the records he sought and there was no analysis required to search for the records. More importantly, the plaintiffs request did not require the defendants to exercise discretion as to whether the records fell within the plaintiffs request.

The defendants further claim that because the requested records were contained in so many files, the plaintiffs request requires research. We disagree. A record request that is simply burdensome does not make that request one requiring research. Further, as the trial court noted, while the plaintiffs request imposed a burden on the defendants, the commission “did not disallow the request on the ground that it was unreasonably burdensome. . . . Instead, it characterized this request as one requiring research and dismissed the complaint on that basis.” (Citation omitted.)

The defendants finally claim that reviewing the records to determine if they are exempt from disclosure constitutes research. We are unpersuaded. As the trial court correctly stated, “[a]ny request for public records would require the agency to review those documents to determine if they fall within an exemption from disclosure.” We, therefore, conclude that the trial court properly determined that the plaintiffs request did not require the defendants to conduct research for them to comply with the request.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the mayor of the town of New Milford, Arthur J. Peitler; the administrative aide to the mayor, Patrick Maguire; the town attorney, Thomas Beecher; and the freedom of information commission. The freedom of information commission did not join in this appeal. We refer in this opinion to the municipal officials as the defendants.

       The plaintiff also requested that the defendants provide him with (1) “All legal opinions received from the Town Attorney and/or his legal firm from January 1, 1996 to the present" and (2) “All invoices . . . received from the Town Attorney and his legal firm from January 1, 1996 to the present.” The defendants complied with those requests.

       General Statutes (Rev. to 1997) § 1-19 (a) provides in relevant part: “[A]ll records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . . or to receive a copy of such records . . . .” Section 1-19 was transferred to General Statutes § 1-210 in 1999.

       The trial court did not address the propriety of the commission’s determination that there is no right under the act to make a request requiring research because none of the parties challenged that aspect of the commission’s decision. For purposes of this case we assume, without deciding, that the commission’s determination in this respect is correct.

       The defendants could determine whether a record came within the plaintiffs request by determining the date of the document, the recipient and the author.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    IN RE MICHAEL L. ET AL.

    (AC 19431)
    Lavery, Schaller and Mihalakos, Js.
    Argued October 29, 1999
    officially released February 22, 2000

      Raymond J. Rigat, for the appellant (respondent mother).

      Nina F. Elgo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Jeffrey W. Minnier, for the minor children.

       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 mother appeals from the judgments of the trial court terminating her parental rights with respect to her minor children, M, S and J. On appeal, the respondent claims that (1) the court improperly found that she had failed to achieve sufficient personal rehabilitation within the meaning of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), (2) the statutory ground of failure to achieve rehabilitation, as defined by § 17a-112 (c) (3) (B), is unconstitutionally vague on its face and as applied to her, (3) the court violated her constitutional rights when it terminated her parental rights but continued the termination of the parental rights trial as to the children’s father, and (4) the agreement of the respondent’s trial counsel to proceed with the trial amounted to ineffective assistance of counsel. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent was raised in Pennsylvania where, at age eighteen, she met the children’s father, who was a drug dealer. Both admitted to using drugs from the outset of their relationship. On July 27, 1991, following their arrest for conspiracy to commit retail theft, M was bom. After the father had served time in jail, he was arrested again on chug charges. While the charges concerning the retail theft were still pending against her, the respondent became a fugitive when she fled to Puerto Rico with the father. S subsequently was bom, and the respondent and her children left Puerto Rico to live with the father’s niece in Waterbury. The father joined them soon thereafter.

On October 28, 1994, J was bom with biliary atresia, a chronic and life threatening disease of the liver. While living in Waterbury, the respondent and the father allowed their children to live in unhealthy conditions. S was found wandering in the street, and the children had rashes and infectious sores and were filthy and poorly clothed. There were continual problems with M’s attendance at school. While the respondent did accept treatment for her substance abuse, both the respondent and the father continued to abuse drugs.

In May, 1995, the department of children and families (department) became involved when seven referrals were made to it by neighbors and the service providers. The referrals involved allegations of drug abuse by both parents, educational neglect, noncompliance with the services, domestic violence and overall neglect. On December 27, 1995, neglect petitions were filed by the commissioner of children and families (commissioner).

On February 2, 1996, orders of temporary custody were granted. When the children arrived in foster care, they were in deplorable condition. J’s bottle was filled with sour milk, his diaper was filled with feces and urine, he had a severe diaper rash covering his buttocks and his inner thighs were bleeding. S was wearing no undergarments and her sneakers were soaked with urine.

While in foster care, the children displayed numerous severe behavioral problems. They were abusive toward one another, often would swear and spit, had poor table manners and S would masturbate constantly, both at home and in public places. After eight months in foster care, many of these behaviors subsided but would return following visits with the respondent.

At the end of 1996, the respondent was extradited to Pennsylvania, where she subsequently was sentenced as a fugitive. On February 24, 1997, the department placed both S and M in Pennsylvania with the maternal grandmother. J, who required special medical care, remained in foster care. Following the respondent’s release from prison, a dispute arose with the maternal grandmother, who demanded that the children be returned to Connecticut. The children then returned to their original foster home in Connecticut while the respondent remained in Pennsylvania. According to the children’s therapist, Kym Crowne, the children were traumatized by the thought that they would be returned to the respondent.

While the respondent claims that she only occasionally used drugs, she tested positive for illegal substances several times. She also was inconsistent in attending substance abuse programs and never followed through with programs offering her individual counseling. Following her extradition to Pennsylvania, however, the respondent voluntarily began participating in bible study programs and visited her children.

On March 17, 1998, the commissioner filed petitions for termination of parental rights of the respondent and the father. On February 2, 1999, the court terminated the respondent’s parental rights as to all three children, and the commissioner was granted orders of temporary custody for them. The present appeal followed. Additional facts and procedural history will be discussed where relevant to issues in this appeal.

I

The respondent’s principal claim is that the court’s decision to terminate her parental rights pursuant to § 17a-112 (c) (3) (B) was clearly erroneous. 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).

“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. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... 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). Having reviewed the evidence presented at trial, we conclude that the court’s decision with regard to the respondent’s failure to achieve sufficient personal rehabilitation and its termination of her parental rights was not clearly erroneous.

The court found by clear and convincing evidence that the respondent had failed to achieve the requisite personal rehabilitation under § 17a-112 (c) (3) (B). “Section 17a-112 [(c) (3) (B)] 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.” (Internal quotation marks omitted.) In re Tricia A., 55 Conn. App. 111, 115, 737 A.2d 974 (1999). The failure to achieve rehabilitation must be proven by clear and convincing evidence. Clear and convincing evidence is something more than preponderance of the evidence, required in neglect proceedings and in other civil cases, but something less than proof beyond a reasonable doubt, required in criminal cases. In re Michael M., 29 Conn. App. 112, 118 n.6, 614 A.2d 832 (1992). “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.” (Internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 366, 730 A.2d 106 (1999).

The respondent argues that she had made progress toward personal rehabilitation through her religious work and in finding employment on her own as a waitress prior to being extradited to Pennsylvania. There was, however, sufficient evidence presented at trial showing that the respondent failed to make progress in her personal rehabilitation. Specifically, the respondent had been a drug user since she was an adolescent, was inconsistent in attending substance abuse programs and never followed through with programs offering her individual counseling and intensive parent training. Furthermore, after accepting treatment for substance abuse, the respondent continued to use drugs.

Section 17a-112 (c) (3) (B) also provides that a respondent’s rehabilitation must be foreseeable within a reasonable time, given the needs of the particular child. In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989). What is a reasonable time is a factual determination that must be made on a case-by-case basis. In re Shannon S., 41 Conn. Sup. 145, 154, 562 A.2d 79, aff'd, 19 Conn. App. 20, 560 A.2d 993 (1989). This court rejected a claim similar to that raised by the respondent in this case in In re Christina V., 38 Conn. App. 214, 218-22, 660 A.2d 863 (1995), holding that mere employment, an increase in child visitation and apparent freedom from substance abuse was not enough to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time the respondent could assume a responsible position under § 17a-112 (c) (3) (B). While the respondent contends that she has made progress in her personal rehabilitation, such as by visiting her children, these visits were not productive enough to establish and maintain stable parent-children relationships. We conclude that the court’s findings are not clearly erroneous and support the fact that the respondent has not achieved personal rehabilitation.

During the dispositional phase of the hearing, evidence must be clear and convincing that the continuation of the respondent’s parental rights is not in the children’s best interests. In this case, there was evidence showing that reuniting the respondent with her three children would be detrimental to their development. For example, M was traumatized by the prospect of reunification with the respondent, while S was institutionalized after one telephone call with the respondent. Furthermore, J, who requires special medical attention, has done well with the care provided from his foster mother. With regard to the children’s needs, considering J’s special medical condition and the emotional conditions of S and M, the respondent has not stabilized herself to the point where she has achieved sufficient rehabilitation to satisfy the requirements of § 17a-112 (c) (3) (B) that she be a responsible parent to her three children.

Considering all the evidence elicited at trial, including the respondent’s drug use, it was not foreseeable that she could assume a responsible position in the lives of her children within a reasonable time. As a result, the court properly found that the respondent had failed to achieve sufficient rehabilitation within the meaning of § 17a-112 (c) (3) (B). We are not persuaded, therefore, that the court’s findings were clearly erroneous.

II

The respondent next claims that the statutory ground of failure to achieve rehabilitation, as defined by § 17a-112 (c) (3) (B), is unconstitutionally vague on its face and as applied to her.

“The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement. State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994).” (Internal quotation marks omitted.) State v. Bell, 55 Conn. App. 475, 481, 739 A.2d 714, cert. denied, 252 Conn. 908, 743 A.2d 619 (1999). Our Supreme Court has stated that “[t]he degree of specificity that due process requires of civil statutes is less than that demanded of criminal statutes.” Packer v. Board of Education, 246 Conn. 89, 113, 717 A.2d 117 (1998). In State v. Indrisano, supra, 802-803, the court outlined the guidelines of the vagueness doctrine as set forth by our Supreme Court. “The purpose of the vagueness doctrine is twofold. The doctrine requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement. The United States Supreme Court has set forth standards for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. . . . Third, but related, where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms.” (Citations omitted; internal quotation marks omitted.) Id., 802-803.

The respondent acknowledges that this claim was not raised at trial but maintains that it should be reviewed pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). While the first two prongs of Golding concern the reviewability of the defendant’s claim; the last two prongs go to the merits of the claim. Id. “The appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. “[A] claim of unconstitutional vagueness . . . warrants appellate scrutiny . . . because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” (Citation omitted.) State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). We conclude that the respondent’s claim fails to satisfy the third prong of Golding.

Under the third Golding prong, the respondent can prevail only if the alleged constitutional violation clearly exists and clearly deprived her of a fair trial. Stale v. Golding, supra, 213 Conn. 240. The question is whether § 17a-112 (c) (3) (B) on its face provides the respondent fair warning so that she knows what conduct is proscribed by the statute and how she could act in accordance with it. In State v. Tucker, 50 Conn. App. 506, 510, 718 A.2d 979 (1998), appeal dismissed, 248 Conn. 668, 728 A.2d 1097 (1999), the court noted that a statute gives fair warning of what conduct it prohibits if it is “reasonably specific and direct enough so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with available judicial gloss.” (Internal quotation marks omitted.) Statutes pertaining to termination of parental rights pertain to “a wide variety of conduct, [because] the process of parenting itself is multifaceted and encompasses all of life’s activities. In view of the diversity of human nature, backgrounds and capabilities, and the differing aspirations of families in our society, it would be impossible to delineate specific conduct as acceptable or unacceptable.” State v. Anonymous, 179 Conn. 155, 164-65, 425 A.2d 939 (1979). In In re Shyliesh H., 56 Conn. App. 167, 181, 743 A.2d 165 (1999), this court concluded that § 17a-112 (c) (3) (B) “as written and as interpreted by the Supreme Court and this court provides fair warning of the conduct necessary for personal rehabilitation . . . .” We therefore conclude that there was no constitutional violation that deprived the respondent of a fair trial.

The respondent further claims that the statute is unconstitutionally vague as applied to her. We disagree. In this case, the respondent not only had the benefit of specified court expectations, but every six months, pursuant to state and federal law, the department provided her notice and an opportunity to be heard with respect to the treatment plans concerning herself and her family. A constitutional violation, therefore, does not clearly exist and the respondent has not been deprived of a fair trial. Accordingly, the respondent’s claim of vagueness as to § 17a-112 (c) (3) (B) fails under Golding. See id., 177-81.

Ill

Next, the respondent claims that the court violated her constitutional right to substantive due process. She alleges that there was no compelling state interest in terminating her parental rights when the rights of the father were left intact. We disagree.

“Although the severance of the parent-child relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection.” (Internal quotation marks omitted.) In re Baby Girl B., 224 Conn. 263, 279, 618 A.2d 1 (1992). “To support a substantive due process claim, [the respondent] must establish either that the [trial court’s] actions were sufficient to [shock] the conscience ... or were a violation of an identified liberty or property interest protected by the due process clause.” (Citations omitted; internal quotation marks omitted.) D’Amico v. Johnson, 53 Conn. App. 855, 864, 733 A.2d 869 (1999).

Since this claim was not preserved at trial, we review it under Golding, As stated in part II of this opinion, this court can dismiss the respondent’s claim if any one of the four Golding prongs are not satisfied. State v. Golding, supra, 213 Conn. 239-40. We conclude that the respondent’s claim fails the third prong of Golding.

The third prong of Golding states that the alleged constitutional violation clearly exists and clearly deprived the respondent of a fair trial. Id., 240. The facts presented in this case fail to meet the standard for violation of substantive due process. The court’s finding, made by clear and convincing evidence, clearly showed that there existed a compelling state interest in termination of the respondent’s parental rights. As stated previously, there was clear and convincing evidence that contact with the respondent would be detrimental to her children and, therefore, the court’s decision to terminate her parental rights does not “shock the conscience.” (Internal quotation marks omitted.) D’Amico v. Johnson, supra, 53 Conn. App. 864. Furthermore, there is no authority to support the claim that the respondent has a fundamental right to maintain her parental rights where the father’s rights have not been terminated. In fact, General Statutes (Rev. to 1997) § 17a-112 (h) provides that “[i]f the parental rights of only one parent are terminated, the remaining parent shall be the sole parent and, unless otherwise provided by law, guardian of the person.” The statute clearly contemplates the situation when the rights of only one parent have been terminated. The court, therefore, committed no constitutional violation when it terminated only the respondent’s parental rights. Accordingly, this claim fails the third prong of Golding.

IV

The respondent’s final claim is that her trial counsel’s agreement to proceed with the trial without the participation of the children’s father amounted to ineffective assistance of counsel. We disagree.

The standard for ineffective assistance of counsel in termination of parental rights cases was articulated in State v. Anonymous, supra, 179 Conn. 160, which held that “[t]he range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law. State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977); State v. McClain, 171 Conn. 293, 301, 370 A.2d 928 (1976).” (Internal quotation marks omitted.) In addition, the respondent must show that counsel’s “lack of competency contributed to the termination of parental rights. ” State v. Anonymous, supra, 160.

In this case, the respondent has not articulated any legal authority for her claim nor has she shown how the alleged incompetency of her trial counsel contributed to the termination of her parental rights. We decline to undertake appellate review of claims where there is no reasoned legal argument nor any citation to legal authority. See State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987). Review of the respondent’s ineffective assistance of counsel claim is declined.

The judgments are affirmed.

In this opinion the other judges concurred.

       Because of the out-of-state incarceration of the respondent father, the trial court was able to consider only the respondent mother’s parental rights. We refer in this opinion to the respondent mother as the respondent.

       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 over an extended period of time, which except as provided in subsection (d) of this section shall not be less than one year . . . (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 ago and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       See footnote 2.

       “ [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.) State v. Golding, supra, 213 Conn. 239-40.

       The pmpose of the treatment plans was to keep the respondent apprised of the services that were being recommended, her degree of compliance, identification of the current functioning of each of her children, as well as what the permanency plan was for the children, long-term and short-term.

       See footnote 4.


author: DUPONT, J.

text:
    BENJAMIN ANCONA v. MANAFORT BROTHERS, INC.
    (AC 18372)
    Lavery, Landau and Dupont, Js.
    Argued December 10, 1999
    officially released February 22, 2000

      Vincent F. Sabatini, with whom, on the brief, was Tara K. Lyons, for the appellant (plaintiff).

      Kenneth R. Slater, Jr., for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Benjamin Ancona, in this action for vexatious litigation, appeals from the judgment for the defendant, Manafort Brothers, Inc., also known as Connecticut Waste Processing, Inc., rendered after a trial to the court. On appeal, the plaintiff claims that the court improperly concluded that (1) the defendant could assert the existence of probable cause to initiate the underlying breach of contract action, (2) the defendant had probable cause, (3) the defendant relied on the advice of counsel in bringing the underlying action so as to constitute a defense to the plaintiffs vexatious litigation claim, (4) the plaintiff failed to prove malice on the part of the defendant and (5) the plaintiff failed to sustain his burden of proof with regard to his claims for intentional infliction of emotional distress, negligent infliction of emotional distress and for a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The plaintiff owns an apartment complex on West Street in New Britain. In 1988, the plaintiff entered into a contract with Dainty Rubbish to collect the rubbish and trash from a dumpster that served the apartment complex. In 1990, the defendant took over the account from Dainty Rubbish. In 1991, the plaintiff and the defendant signed a new contract, the term of which extended from November 1, 1991, to November 1, 1995. Although the contract had a term of four years, it could be terminated by either party by written notice on a yearly basis. Specifically, the contract provided that its term shall be for a minimum of one year and that it would be “automatically renewed from year to year unless either party shall give written notice of termination to the other at least thirty (30) days prior to the annual termination date.” The contract also provided that if the plaintiff became delinquent in his monthly charges, the defendant was entitled to all costs of collection, including reasonable attorney’s fees.

The plaintiff was dissatisfied with the defendant’s services during the first year of the contract. In late October, 1992, the defendant sent the plaintiff the bill for November, 1992, which included a 7 percent increase as provided for in the contract. The plaintiff did not send notice exercising his right to terminate the contract, and on November 1,1992, the contract was automatically renewed for another year. The plaintiff thereafter contacted another trash removal company and discovered that he could get service for $181 per month. The plaintiff discussed this price with the defendant’s representative, Peter Rappoccio, who mentioned a figure of $185 per month. The defendant, however, sent the plaintiff a proposed contract with a price of $200 per month.

The parties continued to disagree over the contract price, with the plaintiff insisting on the price of $185 a month. When the parties could not agree on a price, the plaintiff told Rappoccio to remove the defendant’s dumpster. Rappoccio reminded the plaintiff that the contract was in force until November, 1993, and that the plaintiff still owed the defendant the charges for November and December, 1992, which amounted to $431.37. The plaintiff disputed whether the contract remained in effect and insisted that the dumpster be removed.

Prior to removal of the dumpster, Rappoccio requested that the plaintiff pay the defendant the $431.37, the amount of unpaid charges for November and December, 1992, and that the plaintiff mark the check “final payment.” According to the defendant, this would show the plaintiffs refusal to continue paying under the contract and that the defendant’s removal of the dumpster was not a breach of the contract. The plaintiff claimed that he believed the payment “represented a total resolution of all differences between the parties, including the amount owed and future obligations.” The plaintiff paid the defendant with a check marked final payment, and the defendant cashed the check. Throughout the discussions, the parties did not mention lost profits for the balance of the term of the contract.

Thereafter, the defendant’s attorneys sent a letter to the plaintiff in January, 1993, demanding payment of $8340.17, “representing [the] total amount due on [the] contract.” The plaintiff responded that the contract had been terminated and that he did not owe the defendant any money. On February 10,1993, the defendant’s attorney filed an application for a prejudgment remedy in the amount of $4000, representing lost profits for the complete term of the contract and collection costs due to the plaintiffs alleged breach. The plaintiff, appearing pro se, filed amotion to dismiss the defendant’s prejudgment remedy application. The defendant’s attorney, however, withdrew the application prior to any ruling by the court.

On May 19, 1993, the defendant brought an action against the plaintiff for breach of contract, seeking to recover lost profits. It is this action that the plaintiff claims as the subject of the present vexatious litigation action. The plaintiff filed a motion for summary judgment, claiming that his tender of the check for $431.37 marked final payment and the defendant’s acceptance of that check constituted an accord and satisfaction of the dispute under the contract. The defendant claimed that the check represented payment for charges past due and that the defendant never agreed to a complete settlement of the plaintiffs obligations under the contract, which the defendant claimed remained in effect until November, 1993.

The court granted the plaintiffs motion for summary judgment with a one sentence opinion, stating: “There was a dispute as to the amount and term of the contract, and the acceptance of the check marked final payment (twice) constitutes an accord and satisfaction. County Fire Door Corp. v. C. F. Wooding Co., 202 Conn. 277, 281 [520 A.2d 1028] (1987).” The defendant did not appeal from that judgment.

The plaintiff claims that he suffered severe stress because of the defendant’s claims in January, 1993, that the plaintiff still owed the defendant money under the contract and the defendant’s initiation of the action in May, 1993. In May, 1993, the plaintiff checked himself into a hospital emergency room after feeling heart palpitations, and he consulted physicians over the course of that year and continues to take medication.

The plaintiff brought the present action in August, 1994, alleging vexatious litigation, intentional infliction of emotional distress, negligent infliction of emotional distress and a violation of CUTPA. The court rendered judgment for the defendant on all counts, and the plaintiff appealed.

I

The plaintiff first claims that the court improperly concluded that the doctrine of collateral estoppel did not preclude the defendant from relitigating the existence of probable cause to bring the underlying action for breach of contract because that issue had been litigated and decided in that action. We disagree.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. . . . Milford v. Andresakis, 52 Conn. App. 454, 460-61, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. . . . Dowling v. Finley Associates, Inc., [248 Conn. 364, 374, 727 A.2d 1245 (1999)].” (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn. App. 571, 577-78, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).

“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Citation omitted; internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 460-61, 736 A.2d 811 (1999). “Collateral estoppel . . . presents a question of law that we review de novo.” Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 596, 726 A.2d 502 (1999).

The plaintiff asserts that the court’s granting of summary judgment in his favor in the underlying action establishes the absence of probable cause for that action and, therefore, the defendant is collaterally estopped from litigating the issue in this case. The plaintiff, however, misconstrues the nature of the summary judgment and the doctrine of collateral estoppel. The plaintiffs motion for summary judgment was based solely on his claim that the parties reached an accord and satisfaction of their contract dispute with the plaintiffs tender and the defendant accepted a check marked final payment. The court, in granting the plaintiffs motion, rendered a judgment on the merits of the defendant’s breach of contract action. The parties never raised, nor did the court address, the issue of whether the defendant had probable cause for bringing that action in the first place.

The court in the present case stated: “The plaintiff also argues that [the court’s] deciding for the plaintiff here on a motion for summary judgment reveals the lack of merit in [the] defendant’s initial suit and dramatically demonstrates the lack of probable cause for bringing it. The argument is invalid. The fact [that it] was a summary judgment decision is irrelevant. If it were, every summary judgment decision in favor of a defendant could always generate a vexatious suit. The essence is that [the court’s] decision did not reach the issue of probable cause for bringing the initial suit.”

We conclude that the issue of probable cause could not have been fully and fairly litigated in the previous action because it was not raised by the parties. The issue of this case is not the same issue as that resolved by the previous court when it rendered summary judgment based on the doctrine of accord and satisfaction. Accordingly, the court properly determined that the doctrine of collateral estoppel did not preclude the defendant from litigating the existence of probable cause for instituting the previous action.

II

The plaintiff next claims that the court improperly determined that the defendant had probable cause to institute the underlying action. We are not persuaded.

“A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiffs favor .... Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action .... Malice may be inferred from lack of probable cause .... The want of probable cause, however, cannot be inferred from the fact that malice was proven .... The existence of probable cause is an absolute protection . . . and what facts, and whether particular facts, constitute probable cause is always a question of law. . . . Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).” (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 593-94, 715 A.2d 807 (1998); see Brodrib v. Doberstein, 107 Conn. 294, 296, 140 A. 483 (1928).

“For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991).” (Citations omitted; internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., supra, 49 Conn. App. 594.

On the basis of the evidence produced, the court determined that when the parties’ negotiations over a new monthly rate had broken down, the defendant agreed to remove its dumpster if the plaintiff paid $431.37, the amount due for November and December, 1992, and that the defendant’s representatives insisted that the check be marked “final payment” so that the defendant’s removal of the dumpster would not be construed as a breach of contract. The court also determined that throughout their discussions, the parties never mentioned the defendant’s claim for lost profits for the remainder of the contract term. The court concluded that “[a] reasonable person participating in the conversation between the parties could have concluded, as [the] defendant did, that the check marked ‘final payment’ (as [the] defendant’s representative insisted it be marked), constituted satisfaction of the November and December 1992 unpaid charges only, and did not in any way relate to [the] defendant’s claim for lost profits of the balance of the year.” The facts establish that the defendant had a good faith belief in the validity of its claim for lost profits for the remainder of the contract term sufficient to justify a reasonable person in instituting an action against the plaintiff.

On the basis of our plenary review, we conclude that the court’s conclusion was proper. Accordingly, the plaintiffs claim must fail.

Ill

The plaintiff next claims that the court improperly concluded that he failed to prove malice on the part of the defendant. We disagree.

“In a vexatious suit action, the defendant is said to have acted with ‘malice’ if he acted primarily for an improper purpose; that is, ‘for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based’; 3 Restatement (Second), Torts § 676 .... Thus, while malice may be inferred from the lack of probable cause, lack of probable cause may not be inferred from malice.” (Citation omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 256 n.16.

Here, the court concluded that probable cause existed for the defendant bringing its breach of contract action and that the defendant “brought this suit solely to collect damages on that claim and for no other ulterior purpose.” The evidence relied on by the plaintiff fails to establish that the defendant acted primarily for any purpose other than securing an adjudication of its claim. The conclusion of the court that the plaintiff failed to prove malice on the part of the defendant must stand.

IV

The plaintiff next claims that the court improperly concluded that he failed to sustain his burden of proof with regard to his claims for intentional infliction of emotional distress, negligent infliction of emotional distress and for a violation of CUTPA. We address these claims in turn.

A

The plaintiff first claims that the court improperly concluded that he failed to prove his claim for intentional infliction of emotional distress. The basis for the plaintiffs claim is that the defendant commenced its breach of contract action without probable cause. Because we have concluded that the plaintiff cannot prevail on his claim for vexatious litigation, his cause of action for intentional infliction of emotional distress has been greatly compromised.

“[F]or the plaintiff to prevail in a case for liability under . . . [the intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. Hiers v. Cohen, 31 Conn. Sup. 305, 329 A.2d 609 (1973); 1 Restatement (Second), Torts § 46. Petyan v. Ellis, [200 Conn. 243, 253, 510 A.2d 1337 (1986)], quoting Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62, 480 A.2d 610 (1984). Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Petyan v. Ellis, supra, 254 n.5, quoting W. Prosser & W. Keeton, Torts (5th Ed.) § 12, p. 60. Thus, [i]t is the intent to cause injury that is the gravamen of the tort; Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988) .... DeLaurentis v. New Haven, [supra, 220 Conn. 266-67], Whether the defendant’s conduct and the plaintiffs resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court.” (Internal quotation marks omitted.) Bell v. Board of Education, 55 Conn. App. 400, 409-10, 739 A.2d 321 (1999).

The trial court, relying on DeLaurentis v. New Haven, supra, 220 Conn. 263, held that the allegations in a civil suit complaint “are absolutely privileged at common law and that no cause of action for intentional infliction of emotional distress based on those statements can lie.” (Internal quotation marks omitted.) The court also held that the plaintiff failed to prove that the defendant’s conduct in bringing the action for breach of contract was extreme and outrageous or that the conduct was intended to cause emotional distress. The plaintiff claims that in evaluating his claim, the court should have considered not only the filing of the underlying action but also the defendant’s actions in collecting the debt. The course of conduct, according to the plaintiff, is the defendant’s “failure to abide by its oral promise to forward a contract with a $185 monthly charge, its shadowy procurement of [the plaintiffs] final check, its issuance of an exorbitant and unitemized demand letter, its filing of a [prejudgment remedy application] with accompanying affidavit that failed to disclose relevant facts, the later withdrawal of the [prejudgment remedy application] and its initiation and pursuit of its breach of contract action . . . .” Even assuming the conduct of the defendant was as characterized and listed by the plaintiff, we conclude that the plaintiff has failed to establish that the conduct was extreme and outrageous as required to prove a claim for intentional infliction of emotional distress. The conclusion of the court is legally and factually supported by the evidence and must stand.

B

The plaintiff next claims that the court improperly concluded that he failed to prove his claim for negligent infliction of emotional distress. We do not agree.

To prevail on this claim, the plaintiff must prove that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm. . . . Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978) . . . .” (Citations omitted; internal quotation marks omitted.) Pavliscak v. Bridgeport Hospital, 48 Conn. App. 580, 597, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998).

In the present case, the court held that the “plaintiff also failed to show that [the] defendant should have anticipated that its prosecuting its claim for damages based on [the] plaintiffs breach of contract would cause [the] plaintiff any emotional distress beyond that normally associated with litigation. Moreover, [the] plaintiff had plenty of experience with litigation, having himself brought numerous suits against his tenants.” The plaintiff again claims that the court should have considered facts in addition to the defendant’s filing of the underlying breach of contract action in deciding this claim. Specifically, the plaintiff claims that the defendant’s conduct from the time of the contract dispute in 1992 to the termination of the underlying breach of contract action in late 1993 establishes conduct that the defendant should have realized involved an unreasonable risk of causing emotional distress to the plaintiff. The plaintiffs conclusory statements, however, are insufficient to support a claim for negligent infliction of emotional distress. Absent evidence to the contrary, we cannot say that the court’s conclusion was improper.

C

The plaintiffs final claim is that the trial court improperly concluded that he failed to prove his claim for a violation of CUTPA. Specifically, the plaintiff claims that the court should have concluded that the defendant violated CUTPA by instituting the breach of contract action and by its course of conduct with the plaintiff. We disagree.

“Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). . . . Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575, 584, 636 A.2d 1383 (1994). Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy. . . . Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987).” (Internal quotation marks omitted.) Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn. App. 327, 330, 730 A.2d 115 (1999). “Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 794, 720 A.2d 242 (1998).

The court in the present case, relying on Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 102 (2d Cir. 1983), which applied Connecticut law, held that “filing a single non-sham lawsuit [one having probable cause] . . . cannot form the basis of a claim under CUTPA.” The court further held that the plaintiff failed to prove his claim because the defendant’s conduct did not violate any “established concept of unfairness and was not immoral, unethical, oppressive or unscrupulous.” (Internal quotation marks omitted.)

The plaintiff has not pointed to any authority that would support his claim that the filing of a civil action with probable cause could form the basis of a violation of CUTPA. Moreover, on the basis of the facts found, we agree that the defendant’s conduct was not unlawful, did not offend public policy or some established concept of what is fair, was not immoral, unethical, oppressive or unscrupulous, and did not cause substantial injury to consumers or competitors. We cannot, therefore, conclude that the court’s findings were clearly erroneous. Accordingly, we conclude that the court properly found that the defendant did not violate CUTPA.

The judgment is affirmed.

In this opinion the other judges concurred.

       After concluding that the defendant had probable cause to initiate its breach of contract action against the plaintiff, the court stated: “A further basis for deciding for the defendant is that [the] defendant relied upon the advice of counsel” so as to constitute a valid defense to the plaintiffs vexatious suit claim. Because we conclude that the court properly determined that the defendant had probable cause to institute the underlying breach of contract action, which constitutes an absolute protection to the plaintiffs vexatious suit claim; see Norse Systems, Inc. v. Tingley Systems, Inc., supra, 49 Conn. App. 594; we do not address this alternative basis for the court’s decision.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. MATTHEW MARKEVEYS
    (AC 17795)
    Foti, Lavery and Daly, Js.
    Argued December 3, 1999
    officially released February 22, 2000

      Theresa M. Dalton, senior assistant public defender, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Matthew Markeveys, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, claiming that the trial court improperly (1) admitted testimony as an admission by the defendant and (2) instructed the jury on the concept of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 20, 1995, the defendant, accompanied by Robert LeBlond, drove his motor vehicle adjacent to the victim while she was walking home and asked her to join them for a ride. The victim, age fifteen at the time, had known LeBlond since sixth grade and recognized the defendant only by sight. She agreed to join them for a ride.

Soon thereafter, the victim asked the defendant to take her home because her 9:30 p.m. curfew was approaching. The defendant drove toward her house, then suddenly turned on a dead-end road and parked his vehicle on top of a large hill. The defendant started to “roll a joint,” and the victim again asked to be taken home.

After ten minutes, the defendant started the vehicle and instead of driving the victim home, drove to another deserted area and stopped. The victim asked several times to be taken home. Although the area was plowed and his vehicle had four-wheel drive, the defendant told the victim that the vehicle was stuck in the snow and that they would have to sleep there for the night. The defendant eventually started to drive toward the victim’s house, but soon after swerved off the road into a ditch. The defendant declined various offers of assistance and told the victim that they really would have to stay out all night. The vehicle was towed from the ditch by 3:45 a.m.

The defendant dropped off LeBlond and then took the victim, not to her house, but to where the defendant was living. The victim went into a bedroom and turned on a television. The defendant followed the victim into the bedroom and closed the door behind him. He got into bed with the victim and attempted to pull down her pants. She pushed him off and pulled her pants up, saying, “No, no, no.” The defendant pulled her pants off again and performed vaginal intercourse and cunnilingus on the victim. The victim fell asleep for a brief time, and the defendant had intercourse with her again when she awoke. The victim eventually returned home and was taken to the Terryville police station to report the crime. During a voluntary discussion with the police, the defendant at first denied all of the victim’s allegations, then admitted having had sex with her and touching intimate areas of her body. The defendant was arrested on February 13, 1996. Additional facts will be discussed where relevant to the issues of this appeal.

I

The defendant first contends that the testimony of Milagros Pinero Russell, who overheard statements made by the defendant, was improperly admitted. We disagree.

“The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion.” State v. Lindstrom, 46 Conn. App. 810, 818, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997). Erroneously admitted evidence is not grounds for reversal if the reviewing court “cannot conclude . . . that the jury’s perceptions of the other evidence presented in this case . . . were so affected by the improperly admitted testimony . . . that it is likely that the result of the trial would have been different in the absence of [that evidence].” (Internal quotation marks omitted.) State v. Ledbetter, 41 Conn. App. 391, 400, 676 A.2d 409 (1996), aff'd, 240 Conn. 317, 692 A.2d 713 (1997).

Russell testified as to what she overheard the defendant say while they were sitting in a waiting room at the probation office in Bristol in February, 1996. Russell testified, “I heard a conversation. One of the kids told the other kid that he was being accused of raping a girl and that ‘the bitch wanted it,’ and they started laughing.” Russell identified the defendant as the speaker. The defendant argues that Russell’s statements do not qualify under the party admission exception to the hearsay rule because there was an insufficient nexus established between the comment made and the crime at issue.

An out-of-court statement used to prove the truth of the matter asserted is hearsay and thus is inadmissible. State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). “The words and acts of a party-opponent are generally admissible against him [or her] under the admission exception.” (Internal quotation marks omitted.) Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 620, 717 A.2d 1211 (1998); O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 30, 119 A.2d 329 (1955). “Under the admissions of a party opponent exception to the hearsay rule, evidence must be offered against the party that made the admission.” Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 228, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

The defendant speculates that he could have been referring to a prior accusation of rape or that he was commenting on the victim’s mere desire for sex when he stated that “the bitch wanted it.” The defendant argues that this speculation somehow renders Russell’s testimony inadmissible. The defendant’s argument holds no merit.

An admission of a party opponent need only traverse the low hurdles of relevancy and materiality to survive an objection to its admission into evidence. State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993). Such an admission is admissible even if it is conclusory or not based on personal knowledge. Willow Funding Co., L.P. v. Grencom Associates, supra, 246 Conn. 620. The admission need not even be wholly reliable or trustworthy. In re Jessica B., 50 Conn. App. 554, 571-72, 718 A.2d 997 (1998).

Russell’s testimony was relevant and material because the jury reasonably could have inferred that it manifested the defendant’s admission of sexual intercourse with the fifteen year old victim and his derogatory attitude toward her. It is reasonable to conclude that the jury would find these statements probative because they tended to show an element of the crime— that the defendant had intercourse with the victim. See General Statutes § 53a-71 (a) (1). Other inferences that the jury reasonably could have drawn from Russell’s testimony go to the weight of the testimony, not its admissibility. Dreier v. Upjohn Co., 196 Conn. 242, 249, 492 A.2d 164 (1985). In light of these facts, we conclude that the trial court did not abuse its discretion in admitting Russell’s testimony under the admission of a party opponent exception to the hearsay rule.

II

The defendant claims also that the court misled the jury on the law of reasonable doubt. 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 instructions that the defendant challenges are not constitutional error and merit little discussion. The defendant first questions the court’s comment that reasonable doubt “is a doubt for which a valid reason can be assigned by you. ... It is a doubt for which you in your own mind can conscientiously give a reason.” Very similar language has been approved by our Supreme Court in State v. Lewis, 245 Conn. 779, 815-17, 717 A.2d 1140 (1998), and State v. Kelley, 229 Conn. 557, 567, 643 A.2d 854 (1994). Accordingly, we need go no further.

The defendant next challenges the court’s statement that reasonable doubt is a “real doubt; it’s an honest doubt,” and attacks the definition of reasonable doubt as “the kind of doubt which in the serious affairs of your life you would pay heed and attention to.” Citing State v. Hines, 243 Conn. 796, 709 A.2d 522 (1998), State v. Kelley, supra, 229 Conn. 557, and State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989), the defendant concedes in his brief that challenges to the same and similar language have been rejected by the Supreme Court. Despite this weighty authority that the defendant states is against him, he asks us to ignore this precedent and to hold that these instructions are impermissible. “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). Accordingly, we are bound to follow them and do not condemn those settled jury instructions regarding the concept of reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state filed a motion in limine, asking the court’s permission to introduce evidence of a prior sexual assault in 1995. This alleged victim never formally accused the defendant of a crime. Ultimately, none of this evidence came before the jury.

       "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. Gibson, 56 Conn. App. 154, 160 n.5, 742 A.2d 397 (1999).


author: VERTEFEUILLE, J.

text:
    STATE OF CONNECTICUT v. LEO CHARLES
    (AC 18529)
    Foti, Schaller and Vertefeuille, Js.

      Argued September 27, 1999
    officially released February 22, 2000

      Del Atwell, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bova, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

VERTEFEUILLE, J.

The defendant, Leo Charles, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to sell narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-48 (a) and 21a-278a (b), one count of sale of narcotics within 1500 feet of a school in violation of § 21a-278a (b), one count of possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a (b) and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. The defendant claims that the trial court improperly (1) deprived him of his constitutional right to counsel, (2) charged the jury with respect to the concept of reasonable doubt and (3) imposed a harsh and excessive sentence. The defendant also claims that he was denied the effective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 18, 1997, in the evening hours, the Bridgeport police conducted surveillance of 35 Laurel Court, which is located 800 feet from a middle school. Police officers observed several pedestrians walk to the door of the building and engage in hand to hand transactions with the defendant. Two of the pedestrians were stopped after leaving the property, and both were found to have narcotics in their possession. The defendant then walked out of the building and onto an adjacent sidewalk, where he appeared to conduct another hand to hand narcotics sale. As police approached the defendant to place him under arrest, he fled into the building. The officers forcibly entered an apartment in the building and found the defendant in the living room near two bags of cocaine. The defendant also had $400 on his person. He was placed under arrest. Two other individuals also were apprehended in the apartment. The defendant later failed to appear in court on one of his court dates.

I

The defendant’s first claim is that the court improperly deprived him of his right to counsel by forcing him to proceed with the trial pro se. We disagree.

The following facts are relevant to this issue. On January 23, 1998, about one week before the start of jury selection, the defendant requested that he be permitted to represent himself during the trial. He informed the court that he was forty-three years old and had attended school until he was eighteen. The defendant was canvassed by the court. During the canvass, the defendant acknowledged that he was aware of his right to counsel and that he understood the nature of the criminal proceedings against him. He also stated that he was aware of the possible consequences of proceeding without counsel. After the court was satisfied that the defendant had willingly and knowingly waived his right to counsel, the court granted the defendant permission to proceed pro se. The court then appointed an attorney from the public defender’s office as standby counsel.

The defendant represented himself initially during jury selection. On the fourth day of jury selection, however, the defendant informed the court that he wanted his standby counsel to represent him fully during jury selection and trial. The attorney then served as the defendant’s trial counsel during the remainder of jury selection and the initial days of trial.

On the third day of trial, the defendant’s counsel informed the court that the defendant wanted to discharge him as trial counsel. The defendant gave three reasons for wanting to discharge his attorney. First, the defendant believed that his attorney had failed to provide him with copies of all discovery documents. His counsel disputed this assertion. Second, the defendant accused his attorney of failing to obtain immediate transcripts of all of the previous proceedings. The attorney informed the court that he had advised the defendant that this would be virtually impossible. The third reason given by the defendant was that his counsel failed to obtain a copy of the search warrant that purportedly was used to enter the building where the defendant and the narcotics were found. Defense counsel explained to the court that no such search warrant existed.

The court found those three reasons insufficient to justify terminating representation by existing defense counsel. The court offered the defendant the option of either continuing with his appointed counsel or proceeding pro se. The trial then resumed with the' defendant representing himself.

“A criminal defendant’s right to counsel is a fundamental right guaranteed by both our federal and state constitutions.” State v. Oliphant, 47 Conn. App. 271, 276, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998). “In addition, a criminal defendant enjoys the constitutional right to self-representation at trial . . . .” Id. These two rights may not be exercised simultaneously. State v. Day, 233 Conn. 813, 821, 661 A.2d 539 (1995). The defendant must choose between them. Id.

The right to counsel guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve or in the middle of trial. State v. Rosado, 52 Conn. App. 408, 429, 726 A.2d 1177 (1999). The court has the discretion to decide whether to grant a defendant’s request for new counsel if the circumstances in the course of the trial warrant the appointment of new counsel. State v. Joyce, 45 Conn. App. 390, 406, 696 A.2d 993 (1997), appeal dismissed, 248 Conn. 669, 728 A.2d 1096 (1999). In the present case, the request for new counsel was made for insufficient cause and was made in the middle of trial. We conclude that the court did not abuse its discretion when it gave the defendant the choice of proceeding with his appointed counsel or pro se. The defendant’s constitutional right to counsel was not violated.

II

The defendant’s second claim is that the court improperly charged the jury with respect to the concept of reasonable doubt. The defendant contends that the instruction that “a reasonable doubt is a real doubt and an honest doubt, a doubt which has its foundation in the evidence offered in the case or lack of evidence” unconstitutionally diluted the state’s burden of proof. We disagree.

The defendant took no exception to this portion of the jury charge and therefore failed to preserve this claim for review. The defendant now seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The court’s instruction is not of constitutional dimension, however, and the defendant therefore is not entitled to Golding review. “While our Supreme Court has held that claimed instructional errors regarding the burden of proof or the presumption of innocence can be constitutional in nature . . . not all claims masquerading as constitutional ones concerning the burden of proof or the presumption of innocence have been afforded Golding review.” (Citation omitted.) State v. Ryan, 53 Conn. App. 606, 612, 733 A.2d 273 (1999).

This court recently rejected an identical unpreserved claim in State v. Ryan, supra, 53 Conn. App. 606. In Ryan, as in the current case, “[t]he defendant claim[ed] that the court’s instruction [was] improper because a reasonable doubt need not be founded on the evidence or the lack of evidence but must be consistent with the evidence offered at trial, and relies on State v. Gallivan, 75 Conn. 326, 53 A. 731 (1902), to support his claim.” State v. Ryan, supra, 613. In Ryan, however, we found that reliance on Gallivan was misplaced because the challenge in Gallivan was to a court instruction containing language different from that at issue, and that case failed to support the defendant’s assertions. Id. Our Supreme Court has held that similar language to that challenged here is not of “constitutional dimension.” State v. Taylor, 239 Conn. 481, 505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). The defendant cannot prevail on his unpreserved claim of instructional error.

Ill

The defendant’s third claim is that the court imposed a harsh and excessive sentence. We decline to reach this claim.

The defendant was sentenced to a term of eight years incarceration for conspiracy to sell narcotics, a consecutive term of nine years for the sale of narcotics within 1500 feet of a school, a consecutive term of eight years for possession with intent to sell narcotics within 1500 feet of a school, and a consecutive term of five years for failure to appear in the first degree for a total effective sentence of thirty years imprisonment. He claims that the court was required to impose concurrent, not consecutive, sentences for each of these charges. He fails, however, to cite any authority prohibiting the court from imposing consecutive sentences. The defendant further argues that the sentence he received was in retaliation for his decisions to reject a plea offer and to fire his court-appointed attorney.

The defendant failed to raise either of these claims at trial and therefore has failed to preserve them for appellate review. This court previously has noted that to review claims raised for the first time on appeal “would be nothing more than a trial by ambuscade of the trial judge.” Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995). “[W]e have consistently declined to review claims based on a ground different from that raised in the trial court.” Id. Further, the defendant’s failure to request either Golding or plain error review of those claims further precludes our review of his claims on appeal. Accordingly, we decline to review unpreserved claims of error.

IV

The defendant’s final claim is that he was denied the effective assistance of counsel. We also decline to review this claim.

The defendant argues that his attorney was ineffective both as standby counsel and while representing him fully. He claims, inter alia, that counsel was ineffective due to his lack of pretrial preparation. The proper forum for a claim of ineffective assistance of counsel is a petition for habeas corpus rather than a direct appeal. State v. Hamilton, 228 Conn. 234, 242-43, 636 A.2d 760 (1994). “Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for writ of habeas corpus or a petition for a new trial, not a direct appeal.” State v. Patrick, 42 Conn. App. 640, 650-51, 681 A.2d 380 (1996). “Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” (Internal quotation marks omitted.) Id., 651. Because the proper vehicle for a claim of ineffective assistance of counsel is a petition for habeas corpus, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       A waiver of the right to counsel pursuant to Practice Book § 44-3 will be accepted if the “judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       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.” State v. Golding, supra, 213 Conn. 239-40.