author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. KERRY MARSHALL
    (AC 17058)
    O’Connell, C. J., and Sullivan and Daly, Js.
    Argued November 5, 1998
    officially released January 12, 1998

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, was Elizabeth Bodine, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Kerry Marshall, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102 and burglary in the third degree in violation of General Statutes § 53a-103. On appeal, the defendant claims that (1) he was denied due process and a fair trial when the prosecutor showed two witnesses a knife marked for identification in the presence of the jury, (2) the prosecutor’s broad pattern of misconduct resulted in an unfair trial, (3) the trial court improperly denied his motion for acquittal because there was insufficient evidence to support the conviction of burglary in third degree, and (4) the defendant had inadequate notice that the first degree burglary charge had been changed to second degree burglary during trial, and the jury was misled by the court’s failure to inform it clearly of that change.

A jury reasonably could have found the following facts. On January 14,1995, Jose Jimenez and Juan Ingles were in the bedroom of their apartment when they heard a noise in the living room. Ingles found the defendant in the living room, attempting to disconnect a video game machine from the television set. The defendant identified himself as a security guard, but, when Ingles appeared unconvinced, the defendant pointed a knife at him. The defendant said that he just wanted to leave and, showing Ingles a gun, told him not to do anything “stupid.” Ingles opened the door, and the defendant left. The New Haven police later found the defendant’s fingerprints on the air conditioner duct through which the defendant had gained access to the apartment. The next day Ingles found a knife in the apartment, which he brought to the police.

On April 6,1995, at approximately 4:30 p.m., Elizabeth Melendez returned home after work to find that her apartment had been entered through the air conditioner duct and that her television set had been stolen. The police later recovered the television set at a pawn shop in New Haven. Jennifer Sachs, the shop’s owner, purchased the television on April 6,1995, at 5:25 p.m., from the defendant for $50 after the defendant had given proof of his identity and after Sachs had recorded his identity and description pursuant to store policy.

New Haven police arrested the defendant for the burglaries. The defendant was convicted, and this appeal followed.

I

The defendant first claims that he was denied due process and a fair trial when the prosecutor showed a knife marked for identification as state’s exhibit E to two witnesses in the presence of the jury. We disagree.

At trial, the state showed state’s exhibit E for identification to Jimenez and to Officer Robert Mencucci of the New Haven police department, to whom Ingles had given the knife. Neither witness could connect the knife to either the defendant or the crime. Ingles, whom the defendant menaced with a knife during the burglary, was not examined concerning the knife. The defendant made no objection at trial.

Although the defendant did not properly preserve his claim, he argues that the claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Insofar as his claim falls short of the constitutional standards of Golding, the defendant asserts review under the plain error standard of Practice Book § 60-5. We reject both assertions and conclude that the claim is not reviewable under Golding or as plain error.

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. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40. We conclude that the defendant cannot prevail because he has failed to meet the third prong of Golding.

The display of physical evidence, even weapons, that was not admitted by the court does not automatically prejudice a jury. See McKinnon v. Carr, 103 F.3d 934, 936 (10th Cir. 1996) (prosecutor’s displaying handcuffs not in evidence in sexual bondage and rape case did not so prejudice jury as to warrant reversal); State v. Jones, 44 Conn. App. 338, 350, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997) (prosecutor’s displaying handgun not in evidence did not so prejudice jury as to warrant reversal); State v. Davis, 336 So. 2d 805, 810 (La. 1976) (prosecutor’s showing shotgun and pistol not in evidence to witness did not prejudice jury); State v. Paschall, 197 Wash. 582, 591-92, 85 P.2d 1046 (1939) (prosecutor’s showing “knuckle shot pad” to witness did not prejudice jury).

The defendant has not established that the state’s conduct so prejudiced him as to violate his due process rights and to result in an unfair trial. The extent of the state’s display of the knife and its examination of Jimenez and Mencucci on that exhibit was limited both in scope and duration. The prosecutor did not mention the knife further in either its case-in-chief or in its closing argument. The trial court’s charge, while not specifically mentioning the knife, instructed the jury to reach its verdict solely on the basis of the evidence admitted at trial. When the jury later raised a question about the knife, the trial court stated that the knife was not in evidence. We are not persuaded that any of the defendant’s constitutional rights were violated in this case.

Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We do not believe that such a situation exists here and therefore decline to invoke that measure.

II

The defendant claims that the prosecutor engaged in a broad pattern of misconduct that violated the defendant’s right to a fair trial. Specifically, the defendant alleges that, in addition to displaying the knife before the jury, the prosecutor mischaracterized the evidence in her closing argument. We disagree.

“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We must, therefore, determine whether the [actions] of the prosecutor, in light of all the circumstances, including the trial court’s charge, were so egregious and so damaging to the defendant that they deprived him of a fair trial. . . . State v. Sivri, 46 Conn. App. 578, 590-91, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).” (Internal quotation marks omitted.) State v. Aponte, 50 Conn. App. 114, 125-26, 718 A.2d 36, cert. granted, 247 Conn. 926, 719 A.2d 1169 (1998).

“Review of unpreserved claims of prosecutorial misconduct has been reserved for instances where the claimed misconduct was part of a pattern of misconduct repeated throughout the trial or was blatantly egregious. State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987); State v. Reddick, 15 Conn. App. 342, 354-55, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988).” State v. Horne, 19 Conn. App. 111, 128, 562 A.2d 43 (1989), rev’d on other grounds, 215 Conn. 538, 577 A.2d 694 (1990).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument; State v. Fullwood, [194 Conn. 573, 585, 484 A.2d 435 (1984)]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, [194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985)]; see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra [1181]; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra [654]; and the strength of the state’s case. See United States v. Modica, supra [1181]; State v. Couture, supra, 564; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984)]. State v. Sherman, 38 Conn. App. 371, 377, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).” (Internal quotation marks omitted.) State v. Aponte, supra, 50 Conn. App. 126.

The only circumstance cited by the defendant that even approaches misconduct is the showing of the knife to Jimenez and Mencucci in the presence of the jury. We have concluded that that action neither prejudiced the defendant nor was so egregious as to require reversal in and of itself. We are unconvinced that this action was part of a broader pattern of misconduct. Our reading of the state’s closing argument finds no support for the suggestion that the prosecutor improperly mischaracterized the evidence.

Our examination of the record reveals neither a pattern of prosecutorial misconduct nor the kind of blatantly egregious conduct that would deprive the defendant of a fair trial. We conclude that the claim is without merit.

Ill

The defendant next claims that the there was insufficient evidence to find beyond a reasonable doubt that he committed the Melendez burglary. We disagree.

“The review of a claim of insufficient evidence involves a two part analysis. In making the assessment, the court must first construe the evidence in the light most favorable to sustaining the verdict. . . . State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996). Second, the court must determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . Id.” (Internal quotation marks omitted.) State v. Otto, 50 Conn. App. 1, 16-17, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998).

The jury reasonably could have found that the modus operandi of the Melendez burglary conformed to the modus operandi of the Jimenez burglary in terms of the unusual method of entry and the types of items stolen. The evidence also showed that the defendant had taken Melendez’ television set to a New Haven pawn shop, presented identification, had his description recorded by the owner, and received money in exchange for the television. Construing the evidence in the light most favorable to sustaining the verdict, we are satisfied that the jury could reasonably have concluded that the defendant burglarized Melendez’ apartment.

IV

Finally, the defendant claims that he had inadequate notice that the burglary charge stemming from the Jimenez burglary had been changed from first to second degree during the trial and that the jury had been misled by the court’s failure to inform it clearly of that change. We disagree.

The defendant requests review of this unpreserved claim under Golding or, alternatively, under the plain error standard. We conclude that the defendant has not met the third prong of Golding because he has failed to show the clear existence of a constitutional violation.

The mere allegation of a constitutional violation is not enough to merit reversal under Golding. Labeling a claim constitutional does not make it so. State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). The defendant here asserts that his right to be notified of the charges against him was violated when the first degree burglary charge was amended to second degree burglary. The defendant does not factually substantiate this allegation. On the contrary, the facts seem to contradict this claim.

Moreover, we are unpersuaded that the trial court misled the jury in this matter. At the close of the evidence, the trial court clearly informed the jury that the number of charges against the defendant had been reduced. The court then properly instructed the jury on the elements of each charge, including the second degree burglary at issue here.

The defendant similarly fails to meet the plain error standard, which we invoke in only the rarest of instances.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was arrested and charged with a third burglary but was acquitted at trial.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN M. LEARY
    (AC 16438)
    Lavery, Spear and Shea, Js.

      Argued November 6, 1998
    officially released January 12, 1999

      Barry N. Silver, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, John Leary, appeals from the judgment of conviction of ticket scalping in violation of General Statutes § 53-289 rendered after a trial to the court. He claims that the trial court improperly (1) denied his motions to dismiss and to suppress that were premised on a claimed lack of probable cause to arrest, (2) denied his motion for a judgment of acquittal that alleged that the evidence was insufficient to support his conviction and (3) found the defendant guilty even though the weight of the evidence demonstrated that the guilty finding was manifestly unjust. We affirm the judgment.

The trial court found that on January 21, 1996, the defendant was on George Street, in the vicinity of the New Haven Coliseum, with tickets for a concert at the Coliseum in his hand. Those tickets had face values no greater than $30, yet the defendant offered New Haven police officer Aaron Sweeney, working undercover, floor seats for $70. The trial court found the defendant guilty as charged and this appeal followed.

I

A

The defendant first claims that the trial court should have granted his motion to dismiss in which he alleged, inter alia, that he “was placed under arrest without the requisite probable cause.” He offers no analysis or authority in support of this claim, and, therefore, we decline to review it because it is inadequately briefed. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).

B

The defendant next claims that the trial court improperly denied his motion to suppress evidence because Sweeney lacked probable cause to arrest him for ticket scalping. He asserts that the arresting officer’s lack of knowledge of both the face value of the tickets possessed by the defendant and the identity of those with permission to sell tickets for more than the face value precludes a finding of probable cause.

“We review the trial court’s finding of probable cause under the clearly erroneous standard, wherein we defer to the trial court’s factual findings unless they are clearly erroneous and defer to the trial court’s legal conclusion unless it is not legally and logically consistent with the factual findings.” State v. Torres, 31 Conn. App. 443, 450, 625 A.2d 239 (1993), aff'd, 230 Conn. 372, 645 A.2d 529 (1994).

Probable cause is a common sense, nontechnical concept. “Probable cause exists when there are facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed. . . . The probable cause test then is an objective one. . . . While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause is often fine and that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances. . . . The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same— and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. . . . We also note that the issue of the existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. Probable cause deals with probabilities, not hard certainties.” (Citations omitted; internal quotation marks omitted.) State v. Pierog, 33 Conn. App. 107, 115-16, 634 A.2d 301 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994).

We turn first to the factual basis for the court’s denial of the motion to suppress. The trial court did not issue a written memorandum of decision and the transcript of the oral decision contains veiy little fact finding. The defendant focuses on the court’s statement that “[i]t turns out the tickets had a value between $25 and $30” and asserts that this statement shows that the trial court used information that was gained after the arrest to find probable cause for the arrest. We disagree.

First, the trial court heard the motion during the trial and the arresting officer testified at the motion hearing and during the state’s case-in-chief, both of which were prior to the court’s ruling on the motion. The evidence was not designated as applying to the motion to suppress or the state’s case-in-chief. We cannot discern whether the court’s comment was a reference to evidence brought out during trial or whether the court was using that information to justify its finding of probable cause. Moreover, the defendant did not file a motion to articulate to clarify the basis of the court’s decision. Second, Sweeney testified that he knew before he arrested the defendant that the tickets for that evening’s event “were $25, $30 in that area, much lower than the $70.” This information, in conjunction with all of the circumstances, was sufficient for the officer to conclude that the defendant’s offer to sell him a ticket for $70 gave him probable cause to arrest the defendant for ticket scalping.

The defendant also claims that there was no probable cause because Sweeney testified that he did not know who, if anyone, had permission to sell tickets for more than their face value. Even if we assume, without deciding, that such information is part of the probable cause calculus, the facts known to the arresting officer gave him reason to believe that the defendant did not have such permission. Sweeney observed an earlier sale wherein the defendant’s customer jokingly told the defendant that he was a police officer and that the defendant was “under arrest.” The defendant replied, “Don’t even fuck around. That’s not even funny,” suggesting that the defendant was not selling the tickets with the permission of the owner or operator. Moreover, the arresting officer and his partner were being paid by the coliseum and met with coliseum officials prior to starting their tour of duty to detect and deter ticket scalping. It would have been nonsensical for those in charge of the coliseum to have hired these officers to deter ticket scalping while at the same time authorizing the defendant to roam around the outside of the facility selling tickets for more than their face value.

After reviewing the evidence and the sparse oral decision, we cannot say that the trial court’s factual findings were clearly erroneous or that its conclusion that there was probable cause to arrest the defendant was improper.

II

The defendant’s next claim, that the evidence was insufficient to support his conviction of ticket scalping, is based on the same arguments that he makes with respect to the finding of probable cause. He asserts that the state never established the face value of the tickets at issue and never established that the defendant did not have permission to sell the tickets for more than their face value. We note that the trial court’s oral decision with respect to the finding of guilt is also very sparse and there was no motion for an articulation. Nevertheless, we have reviewed the record and transcript and conclude that the evidence was sufficient to support the conviction.

James Perillo, the executive director of the coliseum, testified that “all tickets were $25, except for tickets purchased the day of the event, and then it jumped to $30 a ticket.” Again, even if we assume arguendo that the state had to prove that the defendant did not have permission to sell tickets for more than their face value, the evidence was sufficient on that point. Perillo testified that it was his responsibility as the representative of the owner or operator to authorize persons to sell tickets for more than face value and he did not give such authorization to the defendant. He also testified that neither the owner nor the operator authorized the defendant to sell tickets in excess of their face value.

When reviewing a sufficiency claim, we do not retry the case or resurrect hypotheses of innocence that were rejected by the fact finder. Rather, “we construe the evidence in the light most favorable to sustaining the verdict . . . [and] determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 38, 716 A.2d 931 (1998), quoting State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995). We conclude that the evidence was sufficient to support a finding of guilty.

Ill

The defendant’s last claim is that the trial court’s finding of guilt was against the weight of the evidence. He claims that the guilty finding is not plausible and is manifestly unjust because the defendant had been “plying his trade outside the coliseum for some ten years and not once was he arrested for a violation of [General Statutes §] 53-289.” He further argues that if “seasoned and experienced officers have not been able to catch [the defendant] violating the law in a decade,” the state’s contention that Sweeney, who had been on the New Haven police force for nine years but was working this detail for the first time, made a valid arrest is simply implausible. He asserts that the “possibility of the factual events occurring as theorized by the state is so vastly remote that it is implausible and serves to constitute a manifest injustice . . . that requires the reversal of the guilty verdict.”

The defendant’s claim does not assert that the finding of guilt was physically impossible or the result of some corrupting influence. See State v. Hammond, 221 Conn 264, 268, 604 A.2d 793 (1992); State v. Sherman, 38 Conn. App. 371, 418, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). It is simply an attack on the credibility of the arresting officer and is without merit. It is clear that “[t]he credibility of witnesses is for the trier of fact to determine.” Charlton v. Commissioner of Correction, 51 Conn. App. 87, 91, 719 A.2d 1205 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-289 provides in relevant part: “No person shall sell, offer for sale or attempt to sell any ticket, privilege or license of admission to an entertainment event, including, but not limited to, any place of amusement, arena, stadium, theater, performance, sport, exhibition or athletic contest given in this state, at a price greater than the price, including tax, printed thereon, or at a price greater than the price fixed for admission, including tax, and a reasonable service charge for services actually rendered not to exceed three dollars. The owner or operator of the property on which such entertainment event is to be held or is being held may authorize, in writing, any person to sell such ticket, privilege or license of admission at a price in excess of that authorized under this section. Such writing shall specify the price for which such ticket, privilege or license of admission is to be sold. Any person violating any provision of this section shall be guilty of ticket scalping. . . .”

       We note that our Supreme Court has held that “an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution .... Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” State v. Fleming, 198 Conn. 255, 262-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); see also State v. Douglas, 10 Conn. App. 103, 124, 522 A.2d 302 (1987).

       The motion requested that the court suppress all of the state’s evidence, “including written and tangible materials as well as verbal statements that arise from [the defendant’s] arrest.” It is clear that the motion sought to suppress the tickets that were seized from the defendant, but we are unable to ascertain what, if any, other items the defendant sought to suppress.


author: PER CURIAM.

text:
    ANTHONY ARENA v. COMMISSIONER OF CORRECTION
    (AC 17679)
    Schaller, Hennessy and Dupont, Js.
    Argued December 8, 1998
    officially released January 12, 1999

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims on appeal that the habeas court improperly rejected his claim of ineffective assistance of counsel. After a review of the record and briefs and after hearing the parties at oral argument, we conclude that the petitioner failed to make a substantial showing that he was denied a state or federal constitutional right.

The petitioner was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, we affirmed the judgment. State v. Arena, 33 Conn. App. 468, 636 A.2d 398 (1994). Our Supreme Court granted certification and affirmed the judgment of this court. State v. Arena, 235 Conn. 67, 663 A.2d 972 (1995). Our Supreme Court noted that, prior to final argument, the trial court had informed counsel that it would instruct the jury on robbery in the second degree as a lesser included offense. Defense counsel, accordingly, had argued to the jury on that offense. Thereafter, the court declined to instruct the jury on robbery in the second degree but offered to give a curative instruction or to allow defense counsel to address the jury again to explain the change in rulings on lesser included offenses. Defense counsel declined both of the court’s offers. Our Supreme Court concluded that the trial court correctly declined to instruct the jury on robbery in the second degree and that the defendant waived the claim of prejudice resulting from the trial court’s ruling because defense counsel had declined to take advantage of the trial court’s offers of a curative instruction or a second opportunity to address the jury. Id., 80.

The habeas court considered the petitioner’s claim that his trial counsel provided ineffective assistance when he declined both of the trial court’s offers. The habeas court heard testimony from the petitioner and his trial counsel regarding the claim. The habeas court credited counsel’s testimony that he had declined the offers because “he felt it would . . . have done more harm than help if he had taken the opportunity to argue before that jury.” The habeas court concluded that the defendant had failed to meet his burden of proving that trial counsel’s performance was deficient and that he was prejudiced by the alleged ineffective performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “ ‘Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . .’ State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 386, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 120 (1996). Further, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy. . . Strickland v. Washington, supra, 466 U.S. 689; see also Johnson v. Commissioner of Correction, 222 Conn. 87, 98, 608 A.2d 667 (1992); Valeriano v. Bronson, 12 Conn. App. 385, 393-94, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).

We conclude that the habeas court had before it sufficient evidence to deny the petition for a writ of habeas corpus.

The judgment is affirmed.

       Although the jury found the petitioner guilty of larceny in the sixth degree, at the sentencing hearing, the trial court granted the petitioner’s motion for judgment of acquittal with respect to that charge.


author: STOUGHTON, J. HENNESSY, J.,

text:
    RECORD JOURNAL PUBLISHING COMPANY v. CITY OF MERIDEN
    (AC 17534)
    O’Connell, C. J., and Hennessy and Stoughton, Js.
    Argued September 22, 1998
    officially released January 12, 1999

      Deborah L. Moore, staff attorney, with whom, on the brief, was Christopher P. Hankins, deputy city attorney, for the appellant (defendant).

      Heather V. Taylor, with whom, on the brief, were Robert P. Dolian and Charles D. Ray, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The defendant city of Meriden appeals from the judgment of the trial court rendered in favor of the plaintiff, Record Journal Publishing Company (Record Journal). Record Journal first appealed to the city’s tax review board, which affirmed certain assessments that the city had issued, and then to the trial court. The trial court rendered judgment in favor of Record Journal and found that Record Journal (1) did not omit personal property in the form of computer software from its tax returns for the years 1991-1994 and (2) sustained its burden of proof that an illegal tax was imposed. On appeal, the city contends that the trial court (1) incorrectly determined that the city had received notice of a tax exemption of computer software that was already loaded into Record Journal’s computer equipment, (2) improperly applied General Statutes § 12-71 (e) (l) in concluding that Record Journal’s computer software was exempt from taxation as intangible personal property, (3) incorrectly concluded that Record Journal had sustained its burden of proof in establishing that an illegal tax was imposed by the city and (4) incorrectly determined that Record Journal did not omit its computer software from the disputed grand lists. This appeal followed. We affirm the judgment of the trial court.

The parties stipulated to the following facts. Record Journal commenced the underlying action after the city issued changes of assessment on Record Journal’s personal property that was listed on the city’s grand lists for 1991-1994 following an audit of Record Journal’s personal property declarations for those years. Except for the city’s additional 25 percent assessment on Record Journal’s computer equipment, pursuant to General Statutes § 12-53, Record Journal has paid all taxes and interest due on its computer equipment pursuant to the reassessment.

On the basis of advice from a consulting firm that was hired to evaluate Record Journal’s tax liability, Record Journal allocated 20 percent of the value of the computer equipment at issue in the years 1991-1993 to software that was already installed into the computer. Record Journal utilized this approach from 1985 until the audit. The consulting firm’s advice was in an opinion letter and indicated that Record Journal’s computer equipment could be valued with a 20 percent allowance for tax exempt miscellaneous software costs. Record Journal never advised the city of the letter, and the city never received or reviewed this letter.

Record Journal has listed its computer equipment on the grand lists for all tax years since 1985, and specifically for the years 1991-1993. Additionally, Record Journal has paid personal property taxes on the computer equipment for each year that it was listed on the grand lists. The city disagreed with Record Journal’s valuation of its computer equipment and reassessed the equipment at a higher value for the period 1991-1993.

I

The city first claims that the trial court, contrary to the joint stipulation of facts, improperly determined that the city received notice of a tax exemption of computer software that was already loaded into Record Journal’s computer equipment.

“ ‘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 . . . .’” 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996).

In its memorandum of decision, the trial court stated that “[b]ased on the advice [of a consulting firm, Record Journal] included in its valuation a 20 percent tax exemption for miscellaneous software costs, giving notice to the city of the exemption claimed as early as 1985. Thereafter, the exemption continued to be claimed and taxes paid, presumably without objection, until an audit having reference to the grand lists in dispute (1991-1994).” The parties stipulated that the city neither received nor reviewed the letter that Record Journal received from its consulting firm relating to the valuation of the computer equipment.

After reviewing the record, we conclude that whether the city received notice of the exemption claimed is not pertinent to the resolution of the ultimate issues that were before the trial court. Specifically, the trial court determined that “[w]hile a 20 percent reduction may have resulted in an undervaluation of the overall equipment,” the controlling aspect was that the 25 percent additional assessment “applies only to omitted property, not all property reassessed pursuant to § 12-53 (a) and (b). United Illuminating Co. v. New Haven, 240 Conn. 422, 457 n.24, 692 A.2d 742 (1997).” Accordingly, even if the trial court improperly found that the city had notice, the finding was harmless.

The city also asserts that the trial court improperly determined that Record Journal had claimed a tax exemption for the computer software and that when the city learned of the exemption it did not object. After reviewing the record, we agree that there is nothing in the joint stipulation of facts indicating that Record Journal ever claimed a tax exemption. Whether Record Journal claimed an exemption and whether the city objected are not relevant to the resolution of the ultimate issues that were before the trial court.

II

The city next claims that the trial court improperly applied § 12-71 (e) (1) in concluding that Record Journal’s computer software was exempt from taxation as intangible personal property. Specifically, the city contends that Record Journal’s computer software was personal property subject to taxation pursuant to § 12-71 (e) (1), and that the 20 percent reduction of the cost of the computer equipment was not justified. Record Journal agrees with the city that the software is taxable and it has paid all taxes and interest due. The applicability of § 12-71 (e) (1) is not at issue. Indeed, the trial court’s memorandum of decision states that “the only issue before the court . . . [was] whether § 12-53 . . . authorizes the city of Meriden to penalize [Record Journal] by imposing an additional 25 percent assessment against the company’s computer equipment.” Accordingly, we need not address this claim further.

III

The city next claims that the trial court improperly concluded that Record Journal had sustained its burden of proof in establishing that an illegal tax was imposed by the city.

“ ‘The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).’ ” SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996).

The trial court’s determinations in the present case were based on a record that was comprised of only a stipulation of facts, written briefs, and oral arguments by counsel. Thus, the record before the trial court was identical to the record before this court. “In these circumstances, the legal inferences properly to be drawn from the parties’ definitive stipulation of facts raise questions of law rather than of fact. . . . Accordingly, our review of the ruling of the trial court in this case is plenary.” (Citations omitted; internal quotation marks omitted.) Id., 163-64.

Pursuant to § 12-53 (a) and (b), omitted taxable property discovered by the town assessor and not listed by the owner as required by law, shall be added to the owner’s property tax list at a percentage of its actual valuation, as determined by the assessor in accordance with the provisions of § 12-71 and 25 percent of such assessment will also be added to the actual valuation. Our Supreme Court has held that “there is no statutory authority for the levy of a penalty assessment for understating the value of assessable property. . . . General Statutes § 12-53 authorizes a penalty only for property omitted from a list.” (Emphasis added.) Northeast Datacom, Inc. v. Wallingford, 212 Conn. 639, 651, 563 A.2d 688 (1989). Furthermore, in United Illuminating Co. v. New Haven, supra, 240 Conn. 452-53 n.21, our Supreme Court quoted the Handbook for Connecticut Assessors, which states that when declared property “ ‘is found to have been under-reported (i.e., the cost was understated), the assessment may be increased but no penalty can be applied.’ ”

The parties have stipulated that the software at issue was loaded into Record Journal’s computer equipment and that the company has listed the computer equipment for all of the tax years in question. The software was thus part of the property that Record Journal declared on its property tax declarations as computer equipment. For each of the tax years at issue, Record Journal declared its computer equipment, valued it at 80 percent of its value, allocating the remaining 20 percent to the software that was loaded into the equipment. The city disagreed with this valuation of the computer equipment and reassessed the tax based on a higher value. At that time, the city also assessed the 25 percent additional assessment. The city asserts that by omitting the value of the software, Record Journal omitted the software itself from its property declarations.

The city did not claim that Record Journal omitted the software from its declaration, a claim that it could hardly maintain in light of the stipulation that the software was loaded into the computer equipment and the computer equipment was listed for all years since 1985. Instead, the city asserts, and Record Journal concedes, that the reduction in the value of the computer equipment by the value of the loaded software was an omission of the value of the loaded software. The city claims that the omission of the value of the software amounted to an omission of the software.

We agree with the trial court that the computer equipment as a whole was merely undervalued and that the software was not omitted from the tax declarations. Accordingly, pursuant to Northeast Datacom, Inc. v. Wallingford, supra, 212 Conn. 651, and United Illuminating Co. v. New Haven, supra, 240 Conn. 452-53 n.21, the 25 percent additional assessment on Record Journal’s computer equipment was not authorized by § 12-53 (b).

IV

The city finally claims that the trial court improperly determined that Record Journal did not omit its computer software from the disputed grand lists. As discussed in part III, we conclude that Record Journal undervalued, rather than omitted, its computer equipment from its property tax declarations.

The judgment is affirmed.

In this opinion O’CONNELL, C. J., concurred.

HENNESSY, J.,

dissenting. I respectfully dissent from the majority opinion because I conclude that the trial court improperly held that Record Journal Publishing Company (Record Journal) sustained its burden of proof that an illegal penalty was imposed.

The city of Meriden contends that the trial court improperly held that Record Journal sustained its burden of proof that an illegal penalty was imposed because the trial court (1) improperly found that the city was given notice of a tax exemption claimed by Record Journal in contradiction to the stipulated facts, (2) misconstrued General Statutes § 12-71 (e) (1) when it concluded that the reduction of the cost of the computer equipment by 20 percent, the estimated value of the computer software already loaded into the computers, was justified because the computer software at issue was intangible personal property not subject to tax and (3) improperly concluded that Record Journal was not guilty of an omission pursuant to General Statutes § 12-53 (a) and (b). I agree with the city, and, therefore, I would reverse the judgment of the trial court.

The record before the trial court consisted of a joint stipulation of facts and written briefs. The facts stipulated by the parties will be discussed where relevant to the issues on appeal.

In determining whether the trial court improperly held that Record Journal sustained its burden of proof that an illegal penalty was imposed, “ ‘[t]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’ ” SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996), quoting Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

I

The city first claims that the trial court improperly found that the city was given notice of a tax exemption claimed by Record Journal. I agree.

“[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 616, 711 A.2d 688 (1998).

The trial court found that, on the basis of the advice it received from a consulting firm, Record Journal “allocated 20 percent of the value of such equipment to software already loaded into the computers. On the basis of that advice, it included in its valuation a 20 percent tax exemption for miscellaneous software costs, giving notice to the city of the exemption claimed as early as 1985. Thereafter, the exemption continued to be claimed and taxes paid presumably without objection until an audit .... The parties have entered into a ‘joint stipulation of fact’ which includes those facts above mentioned . . . .” (Emphasis added.)

The parties, however, stipulated to the following facts: “Based on the advice of a consulting firm that Record Journal had hired to evaluate its tax liability . . . Record Journal allocated 20 percent of the value of the computer equipment ... to software already loaded onto the computer equipment. Record Journal undertook this approach . . . pursuant to advice contained in an opinion letter from [the consultant] that indicated that Record Journal’s computer equipment could be valued with a 20 percent allowance for tax-exempt miscellaneous software costs. . . . The city never received nor did it ever review the letter . . . .” (Emphasis added.)

There is nothing in the stipulated facts indicating that the city had notice of Record Journal’s method of reducing the total value of the computer equipment, for tax liability purposes, by 20 percent because of its receipt of erroneous advice from a consultant that indicated that this method was appropriate because computer software is tax exempt. It was after the city’s audit that the city issued a change of assessment for years 1991-1994 because of this reduction by Record Journal. The trial court’s finding of fact, therefore, has no support in the record and is clearly erroneous.

Unlike the majority, I do not conclude that this error is harmless. I believe that whether the city had notice of the reduction in the value of Record Journal’s computer equipment is relevant to whether Record Journal omitted its software under § 12-53 (a) and (b). Whether the software was omitted, in turn, is relevant to whether Record Journal sustained its burden of proof that an illegal penalty was imposed.

II

The city next claims that the trial court misconstrued General Statutes § 12-71 (e) (1) when it concluded that the reduction of the cost of the computer equipment by 20 percent, the estimated value of the computer software already loaded into the computers, was justified because the computer software at issue was intangible personal property not subject to tax. I agree.

The trial court concluded that “[sjince computer software is deemed intangible personal property not subject to tax, the allocation of a percentage reduction was justified.” General Statutes § 12-71 (e) (1), however, provides in relevant part that “[pjersonal property subject to taxation under this chapter shall not include computer software, except when the cost thereof is included, without being separately stated, in the cost of computer hardware. . . .” (Emphasis added.) Both parties agreed that the computer software was personal property subject to taxation under § 12-71 (e) (1) because the cost of the computer software at issue was included with the cost of the computer hardware and was not separately stated.

Since the trial court relied on its determination that computer software was intangible personal property not subject to taxation to conclude that the computer software had not been omitted pursuant to § 12-53 (a) and (b) and on its determination that the computer software had not been omitted to conclude ultimately that Record Journal had sustained its burden of proof that an illegal penalty was imposed, I, unlike the majority, believe that the trial court’s misinterpretation of § 12-71 is relevant.

Ill

The city next claims that the trial court improperly found that Record Journal was not guilty of an omission under § 12-53 (a) and (b). I agree.

Since the trial court’s determination was based on a record that consisted of stipulated facts and briefs only, the record before this court is identical to the record of the trial court. See SLI International Corp. v. Crystal, supra, 236 Conn 163. “ ‘In these circumstances, the legal inferences properly to be drawn from the parties’ definitive stipulation of facts raise questions of law rather than of fact. . . . Accordingly, our review of the ruling of the trial court in this case is plenary.’ ” (Citations omitted.) Id., 163-64. Therefore, we must determine “ ‘whether [the legal] conclusions are legally and logically correct and find support in the facts that appear in the record.’ ” Id., 163.

Section 12-53 provides in relevant part that “(a) . . . the assessor or board of assessors of each town shall add to the list given in by any person and made according to law any taxable property which they have reason to believe is owned by him and has been omitted from such list, and property so added shall be assessed at the percentage of the actual valuation thereof, as determined by the assessor or board of assessors in accordance with the provisions of sections . . . 12-71 . . . and twenty-five per cent of such assessment shall be added thereto. . . .

“(b) If the assessor or board of assessors of any town believe that taxable property has been omitted from the list given in by any person . . . they may give notice in writing to the owner ... of the time and place of a hearing with respect thereto. ... All omitted taxable property, discovered a,t such hearing or any adjournment thereof and, not listed by the owner as required by law, shall be added to his list by such assessor or board of assessors at the percentage of its actual valuation, as determined by the assessor or board of assessors in accordance with the provisions of sections . . . 12-71, and twenty-five per cent of such assessment shall be added Ihereto. . . .” (Emphasis added.)

As discussed previously, the trial court relied on its misinterpretation of § 12-71 (e) (1) to conclude that the computer software was not omitted pursuant to § 12-53 (a) and (b). After concluding that “[s]ince computer software is deemed intangible personal property not subject to tax, the allocation of a percentage reduction was justified,” the trial court further concluded that “[w]hile a 20 percent reduction may have resulted in an undervaluation of the overall equipment, this fact is not controlling. What is controlling in the instant context is that ‘[t]he 25 percent penalty only applies to omitted property, not to all property reassessed pursuant to § 12-53 (a) and (b).’ ”

While I agree that Record Journal’s computer “equipment” was undervalued, the computer “equipment” was undervalued by the omission of the “software.” It is the computer software and not the computer equipment that is at issue in this case.

The trial court and the majority cite United Illuminating Co. v. New Haven, 240 Conn. 422, 457 n.24, 692 A.2d 742 (1997), and Northeast Datacom, Inc. v. Wallingford, supra, 212 Conn. 651, for the proposition that the 25 percent additional assessment on Record Journal’s computer equipment was not authorized by either § 12-53 (b) or the applicable case law. These cases do state that the 25 percent penalty can be applied only to omitted property and not to understated or underreported property. These cases, however, are not dispositive of the issue of what is “omitted” property under § 12-53.

Record Journal estimated the cost of software already loaded into the computer hardware at 20 percent of the value of the computer equipment on the basis of the advice of a consultant. Record Journal then reduced the value of its computer equipment by 20 percent, the exact amount at which the software was estimated. Section 12-71 (e) (1), however, indicates that computer software, which is included in the cost of the hardware and is not separately stated, is taxable personal property. Both parties agree that the software in this case is taxable. The computer software, however, was not separately stated, nor was it included in the value of the computer hardware. Under these circumstances, I believe that the computer software was omitted and not listed as required by § 12-53. On the basis of the foregoing, I conclude that the trial court’s conclusion that Record Journal did not omit its software is not legally or logically correct.

Because I believe that the trial court improperly found that the city had notice of Record Journal’s claimed tax exemption for computer software, misapplied § 12-71, and improperly held that Record Journal did not omit its software, I conclude that the trial court’s determination that Record Journal sustained its burden of proof that an illegal penalty was imposed was not legally or logically correct.

I would reverse the judgment of the trial court.

       General Statutes § 12-71 (e) (1) provides: “Personal property subject to taxation under this chapter shall not include computer software, except when the cost thereof is included, without being separately stated, in the cost of computer hardware. ‘Computer software’ shall include any program or routine used to cause a computer to perform a specific task or set of tasks, including without limitation, operational and applicational programs and all documentation related thereto.”

       The exact amount in controversy relating to the 25 percent assessment is $5064.10, with interest accruing on that amount at a rate of 1.5 percent per month from July 1, 1997, forward.

       General Statutes § 12-53 provides in relevant part: “(a) . . . [T]he assessor or board of assessors of each town shall add to the list given in by any person and made according to law any taxable property which they have reason to believe is owned by him and has been omitted from such list, and property so added shall be assessed at the percentage of the actual valuation ... as determined by the assessor or board of assessors in accordance with . . . sections 12-63, 12-64 and 12-71 . . . and twenty-five per cent of such assessment shall be added .... The assessor or board of assessors shall notify such person ... of any such increase in the assessed valuation.
      “(b) If the assessor or board of assessors of any town believe that taxable property has been omitted from the list given in by any person . . . they may give notice in writing to the owner, custodian or other person having knowledge of any such property or the valuation thereof, of the time and place of a hearing with respect thereto. . . . Such notice shall direct the person named therein to appear before the assessor or board of assessors with books of account, papers, documents and other records for examination under oath relative to any such property or the valuation thereof. All omitted taxable property, discovered at such hearing . . . and not listed by the owner as required by law, shall be added to his list by such assessor or board of assessors at the percentage of its actual valuation, as determined by the assessor or board of assessors in accordance with . . . sections 12-63, 12-64 and 12-71, and twenty-five per cent of such assessment shall be added . . . . ”

       The underlying lax liability is not an issue in this appeal.

       See footnote 1.

       In addition to § 12-71 (e) (1), the trial court cited Northeast Datacom, Inc. v. Wallingford, 212 Conn. 639, 563 A.2d 688 (1989), for support, that computer software is intangible personal property not subject to taxation. The trial court’s reliance on this case is misplaced. In Northeast Datacom, Inc., our Supreme Court held that computer software was intangible personal property not subject to taxation under § 12-71, however, the court did not mention § 12-71 (e) (1), the section of the statute applicable to computer software. Although our Supreme Court decided the issue of whether “computer software constitutes personal property subject to municipal taxation under General Statutes § 12-71” in Northeast Datacom, Inc. v. Wallingford, supra, 640, on August 15, 1989, after the effective date of the amendment to the statute that added subsection (e), the language applicable to computer software; see Public Acts 1989, No. 89-251, § 193 (adding subsection [e]); the taxation at issue in that case occurred in years before § 12-71 (e) (1) took effect. In addition, the computer software at issue in Northeast Datacom, Inc. v. Wallingford, supra, 642, was “ ‘canned software purchased by [the plaintiff], software customized by outside contractors for [the plaintiff], and custom software developed by [the plaintiff] itself ” and, therefore, was not software that was already loaded into the computer hardware.

       The trial court reasoned that “[a] penalty of 25 percent is authorized only in those instances where the property in question was omitted from the grand list. . . . There is no statutory authority for the levy of a penalty assessment for understating the value of assessable property. . . . The court finds that the plaintiff did not omit the computer software from the grand list in dispute. Rather, on the advice of its consultant it allocated 20 percent of the value of the computer equipment to software. . . . Since computer software is deemed intangible personal property not subject to tax, the allocation of a percentage reduction was justified. . . . While a 20 percent reduction may have resulted in an undervaluation of the overall equipment, this fact is not controlling. What is controlling in the instant context is that [t]he 25 percent penalty only applies to omitted property, not to all property reassessed pursuant to § 12-53 (a) and (b).” (Citations omitted; internal quotation marks omitted.)

       See footnote 1. In addition, in United Illuminating Co. v. New Haven, supra, 240 Conn. 422, our Supreme Court addressed the issue of whether the statutory authority to conduct an audit under § 12-53 includes the power to revalue listed property for tax purposes as well as the power to add property omitted from the list. All property in United Illuminating Co. was listed and valued on the grand list at issue. Id., 425. Our Supreme Court held that “an assessor has the authority under § 12-53 (b) and (c) to revalue and reassess, for tax purposes, property that was listed and valued on a grand list . ... “ Id., 432.


text:
    GREGORY KOLOMIETS v. SYNCOR INTERNATIONAL CORPORATION ET AL.
    (AC 17368)
    Lavery, Hennossy and Sullivan, Js.

      Argued September 21, 1998
    officially released January 19, 1999

      Brendan T. Canty, with whom, on the brief, was Kevin J. Curseaden, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendants).
   Opinion

SULLIVAN, J.

The plaintiff, Gregory Kolomiets, appeals from the decision of the workers’ compensation review board (board) reversing the commissioner’s decision. The plaintiff claims that the board improperly (1) reversed the commissioner’s determination that the plaintiffs injuries arose out of and occurred in the course of his employment and (2) applied existing law by requiring the employer’s consent for the plaintiffs trip to pick up his wallet and driver’s license. We reverse the decision of the board.

An examination of the record discloses the following relevant facts found by the commissioner. In January, 1993, the defendant Syncor International Corporation (Syncor) hired the plaintiff as a part-time employee to deliver products from Syncor’s place of business in Stamford to various hospitals in Connecticut and southern New York. Syncor dealt in radioactive products and was subject to regulation by the Nuclear Regulatory Commission. Consequently, Syncor maintained manuals at its offices in Stamford outlining the recommended routes its drivers should take when transporting its products. Routes could be changed by the drivers if necessary.

On February 10, 1993, the plaintiff reported to work and was assigned to deliver products to Lawrence Hospital in Bronxville, New York. The plaintiff used Syncor’s vehicle to make the deliveries. After making his deliveries, the plaintiff discovered that he had left his wallet and driver’s license at home. When the plaintiff returned to Connecticut on Interstate 95, he passed exit 6, which he would have taken to return to Syncor’s offices, and instead used exit 7 to go to his home to retrieve his wallet and driver’s license because he did not know if Syncor had any more deliveries for him to make that day. After getting off at exit 7, the plaintiff was involved in a motor vehicle accident as a result of which he suffered injuries.

Brian Welsh, the plaintiffs supervisor, testified that he would have preferred that the plaintiff call him about the missing license, return to Syncor’s office and punch out, and then use his own vehicle to go home and retrieve his driver’s license and wallet. Welsh also testified that Syncor had no additional work for the plaintiff on February 10,1993, and, therefore, there was no work-related reason for the plaintiff to have his driver’s license that afternoon. Subsequently, Syncor terminated the plaintiff from its employment because he was involved in a “preventable accident.”

On January 5,1996, the workers’ compensation commissioner for the seventh district issued a finding and award for the plaintiff as a result of that accident. The commissioner found that the deviation from the plaintiffs exact job duties was minor and not so unreasonable and unwarranted as to preclude him from receiving workers’ compensation benefits. On June 23, 1997, the board reversed the commissioner’s finding of compensability. The board found that the plaintiff had finished delivering Syncor’s products and was engaged in a completely separate side trip when he was injured.

I

The plaintiff claims that the board improperly substituted its own findings of fact in place of those found by the commissioner when reversing the commissioner’s determination that the plaintiffs injuries arose out of and occurred in the course of his employment. We agree.

At the outset, we must determine the correct standard of review. “The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996). “The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is oblig[ated[ to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by [her] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The commissioner’s conclusions are accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.” (Citations omitted; internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 623, 706 A.2d 1372, cert. granted on other grounds, 244 Conn. 919, 714 A.2d 6 (1998).

“Although a respondent has a statutory right to appeal an adverse decision to the board, the board’s scope of review is limited. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996) (review board does not conduct de novo hearing of facts). The board may take additional material evidence . . . only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. Fair v. People’s Savings Bank, [207 Conn. 535, 539, 54 A.2d 118 (1999); see also General Statutes § 31-301 (b) (describing scope of review).” (Internal quotation marks omitted.) Kish v. Nursing Home Care, Inc., 47 Conn. App. 623-24.

“As is the standard of review, the law governing eligibility for workers’ compensation is also well established. It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out o/the employment and occurred in the course o/'the employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . McNamara v. Hamden, [176 Conn. 547, 550, 398 A.2d 1161 (1979)]. The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident. Id.” (Emphasis in original; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93, 694 A.2d 1230 (1997).

“[T]o establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place ‘(a) within the period of employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.’ ” Id., 793.

The commissioner found that the plaintiff met the requirements set forth in Mazzone. The plaintiffs injuries occurred within the period of his employment at a place where he may reasonably have been while reasonably fulfilling duties incident to his employment. The commissioner specifically found that the plaintiff might have been given additional driving responsibilities that day. Retrieving his driver’s license was, the commissioner found, in the best interests of both the plaintiff and Syncor because it ensured compliance with motor vehicle laws on any further deliveries that day. The commissioner further found that the plaintiffs action was only a minor deviation from his responsibilities, which did not preclude the payment of workers’ compensation benefits.

Because the commissioner’s determination had an adequate foundation in the facts and because the board cannot substitute its findings regarding the facts for those of the commissioner, we conclude that the board improperly reversed the commissioner’s determination.

II

The plaintiff also claims that the board misapplied the law by making employer consent a prerequisite to compensability under the joint benefit exception. We agree.

An employer’s consent is not required when an act incidental to the plaintiffs employment furthers the business of the employer and the deviation is minor. The deviation was made so that the plaintiff could retrieve his driver’s license to be in compliance with the state motor vehicle laws. This slight deviation by the plaintiff did not remove him from the scope of his employment. The consent of Syncor is not required for the plaintiff to be eligible for workers’ compensation benefits under the facts of this case.

The defendant argues that the plaintiff did not meet the “joint benefit” exception set forth in Dombach v. Olkon Corp., 163 Conn. 216, 224, 302 A.2d 270 (1972). “Larson refers to this as the dual-purpose-trip rule and summarizes it as follows: ‘[Wjhen a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.’ 1 Larson, Workmen’s Compensation Law, p. 294.5" Dombach v. Olkon Corp., supra, 224.

We agree with the plaintiffs assertion that Dombach does not require employer consent with respect to the type of minor deviation that occurred in this case. In Dombach, the trip conferred a joint benefit by serving both business and personal objectives, but the deviation was entirely personal. Here, the deviation itself served business and personal objectives and was minor.

“In determining whether an unauthorized deviation from the employment is so slight as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, [t]he true test is analogous to that applied to determine whether a deviation in agency terminates that relationship. Herbst v. Hat Corporation of America, 130 Conn. 1, 7, 31 A.2d 329 (1943). [T]he trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it. Ritchie v. Waller, 63 Conn. 155, 165, 28 A. 29 (1893). Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196-97, 497 A.2d 435 (1985).” (Internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., supra, 47 Conn. App. 626.

The plaintiff was injured on a highway while doing something incidental to his regular employment, which was a benefit to himself and to Syncor. Although the plaintiffs trip to his home was done without the knowledge of Syncor, it furthered the interests of Syncor because the plaintiff would have met the state motor vehicle requirement that he carry his driver’s license while operating a vehicle for Syncor’s benefit.

The decision of the workers’ compensation review board is reversed and the case is remanded with direction to affirm the commissioner’s decision.

In this opinion the other judges concurred.

       Also a defendant in this case is Syncor’s workers’ compensation insurance carrier, CNA Insurance Company.

       General Statutes § 14-213 provides: “Each operator of a motor vehicle shall cany his operator’s license while operating such vehicle. Failure to carry such operator’s license as required by the provisions of this section shall be an infraction.”


author: DUPONT, J.

text:
    MARYANNE CORDONE v. ANTHONY CORDONE
    (AC 16122)
    O’Connell, C. J., and Schaller and Dupont, Js.

      Argued September 21, 1998
    officially released January 19, 1999

      Anthony L. Lazzaro, Jr., certified legal intern, with whom were Carolyn Wilkes Kaas and, on the brief, Karl V. Rocker and Lisa J. Marotta, certified legal interns, for the appellant (plaintiff.)

      Lisa A. Faccadio, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff in this action for dissolution of marriage appeals from the judgment of the trial court. She claims that the trial court improperly failed (1) to issue an order requiring the defendant to maintain life insurance as security for the payment of time limited alimony, (2) to issue an immediate wage withholding order for the payment of alimony and (3) to award more than $3500 in counsel fees. We remand the case to the trial court with direction to issue a wage withholding order as required by General Statutes § 52-362 (b), and we affirm the judgment of the trial court in all other respects.

The following facts are necessary for a proper resolution of this appeal. The plaintiff and the defendant were married on May 23, 1970, and, at the time of trial, had no minor children. The trial court rendered judgment dissolving the marriage of the parties on June 4, 1996. The trial court found that the marriage had broken down irretrievably and that the defendant bore more responsibility for the breakdown than the plaintiff.

The trial court entered orders regarding property distribution, alimony and other miscellaneous matters. As part of the dissolution decree, the trial court ordered the defendant (1) to assign a 50 percent interest in his teacher retirement benefits to the plaintiff, (2) to provide, at cost, present health insurance coverage to the plaintiff for a period of three years, (3) to pay $450 per week periodic alimony for seven years and (4) to pay $3500 to the plaintiff as counsel fees.

I

The plaintiff first claims that the trial court improperly failed to issue an order requiring the defendant to maintain life insurance as security for the payment of periodic, time limited alimony. We disagree.

The standard of review of financial awards in dissolution appeals is well settled. “Our role as an appellate court is not to retry the facts of the case, substitute our judgment for that of the trial court, or articulate or clarify the trial court’s decision. ... In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989); Mulholland v. Mulholland, 26 Conn. App. 585, 590, 602 A.2d 1054 (1992). When reviewing claims that the trial court abused its discretion in making these awards, every reasonable presumption should be given in favor of its correctness.” (Citation omitted; internal quotation marks omitted.) Puris v. Puris, 30 Conn. App. 443, 449, 620 A.2d 829 (1993).

General Statutes § 46b-82, which governs the award of alimony in dissolution cases, provides in relevant part that “[a]t the time of entering the [dissolution] decree, the Superior Court may order either of the parties to pay alimony to the other .... The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. . . .” (Emphasis added.) An order directing a party to maintain life insurance as security for alimony “is very often an appropriate and necessary component of a judgment of dissolution of marriage. Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts.” Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993).

The trial court articulated its decision that life insurance as security was not necessary to assure the payment of periodic alimony. It “concluded from the appearance, demeanor and past performance of the defendant, as well as his responsibility, job performance and steady work history that an allocation of life insurance as security for alimony was not reasonably necessary.”

The plaintiff argues in her brief that security in the form of life insurance would provide her with resources should the defendant not survive the term of the alimony. She maintains that “[t]he trial court abused its discretion because it could not have reasonably concluded that [the plaintiff] needed a full seven years of alimony, and yet, that no security was necessary to ensure that she receives the support even if the defendant dies unexpectedly.” The plaintiff also claims that the court, in its articulation, improperly focused on factors unrelated to the purpose of securing payment of alimony with life insurance.

The ordering of security for alimony by a trial court is discretionary under the statute. Although some of the factors cited by the court in its articulation were not directly related to the issue of whether the plaintiff needed security for alimony in the event that the defendant died before the specified time, they were related to the probable ability of his estate to guarantee payment. More importantly, other factors make the trial court’s exercise of discretion proper.

As part of the dissolution decree, the defendant was awarded two individual retirement accounts in the combined amount of $22,000 and an annuity in the amount of $9000. The defendant was, at the time of judgment, insured through his place of employment under a life insurance policy with a face value of $120,000. He was forty-nine years old, in good health, enrolled in a doctoral program at Columbia University and employed as the assistant principal of West Haven High School. He is currently employed as an administrator with the West Haven board of education. Taking into account the factors listed in § 46b-82, including the defendant’s age, health, station, occupation, amount and sources of income, employability and estate, we cannot say that the trial court abused its wide discretion in failing to order security for alimony.

II

The plaintiff next claims that the trial court improperly failed to issue an immediate wage withholding order, as required by General Statutes § 52-362 (b).

The plaintiff claims that the trial court was required to issue an immediate wage withholding order because the court’s memorandum of decision was silent as to whether cause existed for ordering a contingent wage withholding. The plaintiff argues that such silence was tantamount to the issuance of a contingent order, without a finding of cause or an agreement of the parties that a contingent order should issue, which is not allowed under the statute. The defendant counters that the trial court need not articulate good cause for issuing a contingent wage withholding order and that, regardless, such cause did in fact exist. The defendant also argues that a requirement of § 52-362 (b) was not followed.

Section 52-362 (b) mandates an immediate wage withholding order; see Emerick v. Emerick, 28 Conn. App. 794, 804, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); 32 S. Proc., Pt. 12, 1989 Sess., pp. 3948-49, remarks of Senator Anthony V. Avallone (“wage orders and garnishments and support matters are automatic”); 32 H.R. Proc., Pt. 21,1989 Sess., p. 7456, remarks of Representative Richard Tulisano (“there will be an automatic order of wage withholding” under the statute); unless the trial court exercises its discretion to issue a contingent order for cause.

That statute requires that before the court issues an order for withholding that is effective immediately, the trial court “shall inform the obligor of the minimum amount of earnings which are exempt from withholding under state and federal law, of his right to claim any applicable state or federal exemptions with respect thereto and of his right to offer any evidence as to why a withholding order effective immediately should not issue. . . .” General Statutes § 52-362 (b).

Because the trial court did not, pursuant to the statute, issue either an immediate wage withholding order or a contingent one for cause, and, because the trial court did not provide the defendant his statutory rights under § 52-362 (b) as to exemptions or allow him to offer any evidence as to why a withholding order effective immediately should not issue, we must remand the case. The defendant must be provided with notice as required by the statute and the court must issue either an immediate wage withholding order or, if it finds cause, a contingent wage withholding order.

III

The plaintiffs final claim is that the trial court improperly failed to award additional counsel fees. We are not persuaded.

General Statutes § 46b-62 governs the award of attorney’s fees in dissolution proceedings. That section provides in relevant part that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .” The criteria set forth in § 46b-82 include “the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so.” (Internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 543, 752 A.2d 978 (1998). “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. ... An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 649, 643 A.2d 874 (1994).

The plaintiff claims that the trial court abused its discretion in awarding only $3500 in counsel fees to the plaintiff because the trial court failed to make an express finding that it considered all of the statutory criteria of § 46b-82 in making its award and because the trial court failed to apply the statutory criteria to the facts of the case. The plaintiff claims that the evidence before the trial court showed a great disparity in the parties’ income and assets and that it supported a higher award. The plaintiffs claims, however, are without merit.

We have held that “[i]n ordering either spouse to pay counsel fees, the court must consider the respective liabilities of each and the statutory criteria for awarding alimony. Weiman v. Weiman, 188 Conn. 232, 236, 449 A.2d 151 (1982). The court is not obligated, however, to make express findings on each of these statutory criteria. Id., 234.” (Internal quotation marks omitted.) Clement v. Clement, supra, 34 Conn. App. 649; see also Bornemann v. Bornemann, supra, 245 Conn. 542.

The trial court, in its memorandum of decision, stated that it was “taking into account the statutory criteria provided by law for consideration in allocating alimony and/or property disposition orders” in making its findings and conclusions of law. The factors considered in allocating alimony are the same as those considered for awarding counsel fees. The plaintiffs assertion that the trial court failed to apply the statutory criteria is simply not supported by the record. The trial court is not obligated to mention specifically the statutory criteria considered in making its award and its failure to do so was not improper. We cannot conclude that the trial court abused its discretion in awarding the plaintiff counsel fees in the amount of $3500.

The case is remanded for a hearing pursuant to General Statutes § 52-362 (b) to determine whether an immediate or a contingent wage withholding order should issue. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-362 (b) provides in relevant part: “The Superior Court and any family support magistrate shall issue an order for withholding pursuant to this section against the earnings of an obligor to enforce a support order when the support order is entered or modified or when the obligor is before the court in an enforcement proceeding. The court shall order the withholding to be effective immediately or may, for cause or pursuant to an agreement by the parties, order a contingent withholding to be effective only on (1) the filing with the court or the assistant clerk of the Family Support Magistrate Division of an affidavit, sufficient under subsection (d) of this section, as to the obligor’s delinquency or (2) an order of the court or a family support magistrate after a hearing pursuant to subsection (e) of this section. . . (Emphasis added.)

       The plaintiff requested an immediate wage withholding order in her claims for relief. There was no agreement of the parties for the issuance of a contingent wage withholding order.

       The plaintiff in this case sought articulation from the trial court as to a number of things, including the reasons for the failure of the court to issue an immediate wage withholding order for the payment of alimony. The trial court denied the articulation and the plaintiff sought review of the denial in this court. We granted review but denied relief as to the failure of the trial court to order an immediate wage withholding. That denial was improvident because we cannot now know why the trial court did not issue either an immediate or contingent wage withholding order.

       The plaintiff does not deny that the statute was violated in this respect.

       The remand in this case does not disturb any financial award and, therefore, we are not involved with the disruption of the “carefully crafted mosaic” that would require a reexamination by the trial court of every financial award.

       The plaintiff submitted two financial affidavits to the trial court. The first was a financial affidavit of the plaintiff listing an outstanding balance of $9062.78 in attorney’s fees as of February 1, 1996. The plaintiff claims that this amount represented fees incurred for services performed prior to trial. After the trial concluded, the plaintiffs counsel submitted an affidavit that listed an outstanding balance of $23,576.28, representing the amount incurred for services performed through trial.


text:
    STATE OF CONNECTICUT v. CEDRIC S.

    (AC 17174)
    Schaller, Dupont and Shea, Js.
    Argued December 17, 1998
    officially released January 19, 1999

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

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecilia Weiderhold, assistant state’s attorney, for the appellee (state).

       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

PER CURIAM.

The defendant appeals from the judgments of conviction of four counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134. The convictions were based on the defendant’s conditional plea of nolo contendere and written reservation entered into pursuant to General Statutes § 54-94a and Practice Book § 61-6. Pursuant to those provisions, the defendant reserved for review his motions to dismiss, which challenged the constitutionality of the automatic transfer provision of General Statutes § 46b-127 (a).

The defendant presents two claims on appeal. The first challenges the constitutionality of the automatic transfer provision of General Statutes § 46b-127 (a). Our Supreme Court’s decision in State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998), is controlling with regard to that issue and requires affirmance of the trial court’s decision. The second claim is that the trial court abused its discretion when it denied the defendant’s application for youthful offender status under General Statutes §§ 54-76b through 54-76o. As the defendant conceded at oral argument, his appeal is limited by the conditional plea and written reservation. Neither General Statutes § 54-94a nor Practice Book § 61-6 encompasses the claim regarding the trial court’s exercise of discretion in denying youthful offender status to the defendant. Accordingly, this claim is not reviewable.

The judgments are affirmed.