text:
    STATE OF CONNECTICUT v. SANDRA LANASA
    (AC 34156)
    Lavine, Robinson and SchaUer, Js.

      Argued January 8
    officially released April 2, 2013

      Vincent J. Dooley, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom were Andrew J. Slitt, assistant state’s attorney, and, on the brief, Patricia M. Froehlich, state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Sandra Lanasa, appeals from the judgment of conviction, rendered after a jury trial, of one count of illegal sexual contact with a child in violation of General Statutes § 53-21 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (l). On appeal, the defendant claims that the court improperly (1) granted the state’s request for a continuance and (2) instructed the jury when it failed (a) to give a credibility instruction and (b) to inform the jury of its right to view a trial exhibit. We affirm the judgment of the trial court.

In a long form information, the defendant was charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of illegal sexual contact with a child in violation of § 63-21 (a) (2) and one count of risk of injury to a child in violation of § 63-21 (a) (1). On February 21,2009, the defendant engaged in inappropriate sexual contact at her home with the victim, a classmate of her daughter who was fifteen years old at the time of the incident. After a jury trial, the defendant was found not guilty of sexual assault, but guilty of illegal sexual contact with a child and risk of injury to a child. Subsequently, she was sentenced to an effective term of ten years of incarceration, execution suspended after one year, and ten years of probation. This appeal followed. Additional relevant facts will be set forth as necessary.

I

The defendant first claims that the court improperly granted the state’s request for a continuance so that the victim could be present for closing arguments. She argues that the prosecutor’s seeking a continuance on behalf of the victim was improper advocacy in excess of her authority, statutorily and under the rules of professional conduct, and thus, prosecutorial impropriety in violation of the defendant’s due process rights. The defendant additionally maintains that the court erred in granting the continuance because the victim did not have standing to request a continuance, the rights of the victim are not absolute and the court improperly equated the victim’s rights with the defendant’s rights.

We begin with our standard of review. “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... In deciding whether to grant a continuance, the court of necessity balances several factors, including the importance of effective case flow management and the relative harm or prejudice to both parties. . . . Absent a showing of actual prejudice, the court will not be found to have abused its discretion when [granting a party’s] motion for a continuance.” (Citations omitted; internal quotation marks omitted.) Irving v. Firehouse Associates, LLC, 82 Conn. App. 715, 719-20, 846 A.2d 918 (2004).

The following additional facts and procedural history are necessary to resolve this claim. On the second day of trial, May 26, 2011, the state rested. After the court had excused the jury, it noted that the defendant would “have an opportunity to present a defense tomorrow, if [she] chooses to do so.” It denied the state’s motion in limine to preclude testimony of the defendant’s expert witness and ordered the defendant to produce her expert the next day. The court noted that it had been very clear that all parties had to make efforts to produce their witnesses and that as “a practical matter, the case needs to be done as soon as practical because the state of Connecticut and defense counsel are prepared to proceed on [another] evidentiary matter . . . next week on Wednesday [June 1, 2011] .... So we do need to proceed tomorrow, and I’m expecting everybody to be ready.”

The next day, on Friday, May 27, 2011, the defendant rested. When the state inquired about scheduling for the rest of the day, the court indicated that it would proceed with a charging conference, closing arguments and the charge to the jury. At that point, the prosecutor requested that closing arguments not go forward because the victim’s advocate had an outstanding medical appointment and would not be available for the victim. The court noted that no other courtroom would be available the next week due to a scheduled trial.

After a brief recess, another prosecutor, who had been working with the prosecutor trying the case, addressed the court and argued for the continuance. She requested that oral arguments be scheduled for Wednesday, June 1, 2011, at 2 p.m. to allow the victim to be present. She argued that if the defendant had presented a defense, closing arguments necessarily would have been scheduled for June 1 because defense counsel had represented that the defendant’s case would take approximately two days, Monday, May 30, 2011, was a holiday and the prosecutor trying the case had indicated that he would not be available on Tuesday, May 31, due to a commitment in federal court. Furthermore, she maintained, the victim was not available that afternoon due to a school event out of the state and had a constitutional statutory right to be present.

The court remarked that “it [is] important to observe, obviously, the rights of the victims, as well, and to no lesser extent the rights of the accused. . . . We’re at a point where the defense rested without presenting a defense, and certainly [although] the court, and all parties anticipated a potential expert ... it is the [defendant’s] right to not present a defense . . . .”

Defense counsel then argued against the continuance. She first pointed out that the state had notice that the defendant did not know if she would present a defense until after hearing the state’s witnesses and determining what documents might be admitted for cross-examination. She stated that “a delay in this trial would result in abridging the rights of the defendant.” Defense counsel maintained that everyone was aware of the scheduling and the need to move forward and that the state should have made appropriate provisions to accommodate the victim advocate’s medical appointment. When the court asked defense counsel to put aside the victim advocate’s availability and to focus on the victim’s availability, she stated that “[h]is rights don’t usurp the defendant’s in a criminal trial . . . .” She argued that everyone should have been aware that the case could have concluded that day and maintained that the defendant relied on the court’s scheduling orders when deciding whether to present a defense. She continued, stating that “[t]he decision that [the defendant] made not to present evidence, and to rest, was based on a trial schedule, knowing that the information would be fresh in the jurors’minds . . . .’’Defense counsel asserted that the defendant had a right to a conclusion of the hearing, that there was no reason why the victim was excused during trial when other witnesses were not and that everyone knew that the defendant had not yet decided whether to put on a defense. She concluded by stating that “it hurts [the defendant] to put the jury on ice now. I think all of the information is now fresh in their mindfs]. I think they’re focused. I think they’re ready. . . . And I believe, Your Honor, that it’s unreasonable to, where it’s not an emergency situation, to accommodate other people’s schedules above the defendant’s right to the trial.”

In an oral decision, the court granted the state’s request for a continuance. It noted that jury selection had taken several days and that the proceedings had been interrupted, to an extent, when one of the witnesses had to interrupt his testimony in order to comply with a subpoena duces tecum. The court gave the defendant the option of reopening her case, if she chose to do so, to produce witnesses. Stating that it held “very serious the rights of the accused in obtaining a fair trial, having this case decided by a jury of her peers,” the court nevertheless reasoned that “other than a claim that somehow it’s prejudicial to the defense, the court really has [no] basis upon which to make a finding [of] prejudice, or harm, to the accused. On the other hand, given what this court infers was clearly a surprising schedule to the complaining witness . . . [t]here is reasonable cause to understand why the complaining witness is not here today, and the court cannot turn a blind [eye] to the victim statute. [The court] also observe[s], very seriously, the rights of the accused. It’s not a question of one individual’s rights trumping another, it’s a question of weighing all the variables, and above all ensur[ing] a fair trial to [the defendant].” Finally, the court observed for the record that it did not find that “the defendant’s rights [were] impeded by virtue of the delay.”

Although the defendant has detailed the ways in which she feels that the court abused its discretion in granting the continuance, she has not demonstrated how she was actually harmed by the continuance or explained how the outcome of the trial would have been different had the court denied the request for a continuance. Thus, the defendant has not shown actual prejudice. See Irving v. Firehouse Associates, LLC, supra, 82 Conn. App. 720. Accordingly, we conclude that the court did not abuse its discretion in granting the state’s request for a continuance.

II

The defendant also claims that the court improperly instructed the jury in two ways: (1) the court failed to instruct the jury about the credibility of the victim given his age and immaturity and (2) the court failed to adequately inform the jury of its right to view a trial exiúbit that was accessible only by computer. We disagree with both claims.

“We begin with the well established standard of review governing the defendant’s challenge to the trial court’s jury instruction. Our review of the defendant’s claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the [trial] court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . . . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.” (Internal quotation marks omitted.) State v. Devalda, 306 Conn. 494, 505-506, 50 A.3d 882 (2012).

A

The defendant first claims that the court failed to instruct the jury regarding the credibility of the victim given his age and immaturity. According to the defendant, the victim falls under one of the exceptions to the general rule against instructing juries about the credibility of specific witnesses and that it was appropriate for the court to have done so in this case because the victim could have been subject to school and parental discipline. We disagree.

The following additional facts are necessary to resolve this claim. At the charging conference, defense counsel asked the court to accept her charge regarding the credibility of the victim’s testimony. The state objected, arguing that it created an inappropriate suggestion that the victim was less credible. The court agreed, stating that the “language would be an inaccurate statement suggesting a lack of trustworthiness by virtue of . . . age, and I do think the court’s request to charge on the issue of credibility of all the witnesses is sufficient without this particular charge.”

“Generally, a [criminal] defendant is not entitled to an instruction singling out any of the state’s witnesses and highlighting his or her possible motive for testifying falsely. . . . [Our Supreme Court] has held, however, that a special credibility instruction is required for three types of witnesses, namely, complaining witnesses, accomplices and jailhouse informants.” (Citation omitted; internal quotation marks omitted.) State v. Diaz, 302 Conn. 93, 101-102, 25 A.3d 594 (2011). “Under the complaining witness exception, when the complaining witness [himself] could . . . have been subject to prosecution depending only upon the veracity of his account of [the] particular criminal transaction, the court should . . . [instruct] the jury in substantial compliance with the defendant’s request to charge to determine the credibility of that witness in the light of any motive for testifying falsely and inculpating the accused. ... In order for [such a] request to be applicable to the issues in the case, there must be evidence ... to support the defendant’s assertion that the complaining witness was the culpable party.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 467-68, 886 A.2d 777 (2005).

The defendant concedes that the victim would not have been subject to criminal liability as a result of his involvement in the incident. Nevertheless, she urges us to conclude that a specific instruction on the credibility of the victim was warranted because he could have faced suspension from school, discipline from his parents or a delinquency referral if the allegations were proven to be false. We decline to do so. A specific charge about the complaining witness is only appropriate when there is evidence that he could have been subject to criminal prosecution. See State v. Patterson, supra, 276 Conn. 467-68. The victim could not have been subject to criminal charges in this case. At best, the defendant speculates that the victim might have been disciplined in some way. Such speculative actions do not require a special jury instruction. Accordingly, we conclude that it was not reasonably probable that the jury would be misled due to the court’s refusal to instruct the jury specifically regarding the victim’s credibility due to his age and immaturity at the time of the incident.

B

The defendant also claims that the court failed to adequately inform the jury about its right to view a trial exhibit that was accessible only by computer. She argues that the court’s interruption during her closing argument was unwarranted and that its later instruction added to the confusion, making it reasonably probable that the jury was misled. We disagree.

The following additional facts are necessary to resolve this claim. During the cross-examination of one of the state’s witnesses, state police Trooper Max Freyer, the defendant introduced as a full exhibit a computer disk that contained four documents that were comprised of the victim’s cell phone records. During closing argument, defense counsel examined the contents of the disk with the jury and three times made comments that the jury would have access to the documents on the disk during deliberations. After the third remark, the court interrupted her closing argument and noted that the disk, but not a computer was in evidence. When defense counsel stated that she thought that the court would provide a computer, the court remarked that the issue had not been discussed, but that “if the jury were to request such an item that the issue could be taken up.”

After closing arguments had concluded, defense counsel inquired as to whether a computer would be available for the jury to review the disk that was in evidence. The court directed defense counsel to discuss the matter with the court clerk’s office, noting that “if that scenario should arise, any laptop [computer] that goes to the jury I would like to think is going to have to be clean of material, and have some type of safeguard to prevent improper information to going to the finder of fact.”

The next day, defense counsel presented a laptop computer that had been purchased the previous night, with only Adobe software installed on it, and requested that it be allowed in the deliberation room. The state objected, arguing that a computer should have been obtained through the clerk’s office and that defense counsel should have addressed the issue earlier if she intended to introduce the computer into the jury room. Defense counsel responded that a computer was the only way that the jury could view the evidence, that the clerk’s office did not have an available computer and that the court could mark the computer as a court exhibit so that it would remain in the custody of the court.

After remarking that defense counsel had shown the jury the contents of the disk during closing arguments, that the jury was told that it could request anything that it needed, that the court would be inclined to grant a request for a computer and that the defendant had offered the disk by itself, the court denied defense counsel's request to put the computer in the deliberation room absent a request by the jury.

Defense counsel then asked that the jury be instructed that they could have access to a computer because the court interrupted her during her closing argument and there was discussion in front of the jury about the availability of a computer. The prosecutor did not object to a general instruction letting the jury know that it could request anything it needed, but did object to highlighting particular evidence. Defense counsel then asked if the court could “inform the jury that if there’s anything that they need to assist them in reviewing the evidence to send a letter out to you.” The court subsequently informed the jury that “[s]hould you have a need for anything, or a request, again I advise you to write a note, hand it to the marshal, and we will take that up, if we can assist you and respond.” The jury did not request to view the disk.

“It is well established that . . . [i]n properly instructing the jury it may or may not be necessary for the court to recall the attention of the jury to the evidence ... or to comment [on] the evidence or [to] express an opinion as to its weight .... In reviewing whether the trial court must comment on any evidence that has been presented, we examine not only the entire jury charge . . . but also the presentation of the issues to the jury by counsel in the context of the trial. Within constitutional limitations concerning trial by jury, the nature and extent of the trial court’s comments on the evidence must largely depend on the facts involved in a particular case and the manner in which it has been tried. . . . The extent to which a court should comment on the evidence is largely a matter within its sound discretion. ... In some cases, where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary. On the other hand, if the issues are clearly enumerated and the argument of counsel has fairly presented the case, a discussion in the charge of the details of the evidence may defeat its proper purpose.” (Citation omitted; internal quotation marks omitted.) State v. Flores, 301 Conn. 77, 98-99, 17 A.3d 1025 (2011).

In the present case, the evidence related to the charges was not particularly complicated as they arose from one incident. Defense counsel extensively reviewed the contents of the disk during cross-examination of Freyer and reviewed it during her closing argument. During its jury charge, the court noted three times that the jury would have all of the exhibits during its deliberations and that the jury must consider all evidence, including exhibits. Additionally, during defense counsel’s closing argument, the court indicated, in the presence of the jury, that it would take up the issue of a computer if the jury requested to view the exhibit. The court’s jury instructions, when examined as a whole and in the context of the entire trial, sufficiently guided the jury. Therefore, we conclude that, given the circumstances of the case, the court did not abuse its discretion by refusing to instruct the jury specifically as to the availability of a computer to view the exhibit. We also conclude that it was not reasonably probable that the jury was misled by the court’s instructions.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant’s appeal form and the judgment file both indicate that the defendant is appealing from the denial of her motion for waiver of fees and costs, which was filed on December 9, 2011, nearly four months after she was sentenced. Not only was the motion for waiver of fees and costs late; see Practice Book §§ 63-7 (“[a]ny defendant in a criminal case who is indigent . . . may, within the time provided by the rules for taking an appeal, make written application to the court . . . for relief from payment of fees, costs and expenses”) and 63-1 (a) (“an appeal must be filed within twenty days of the date notice of the judgment ... is given”); but also the denial of a motion for waiver of fees is not appealable. The “[djenial of a motion for waiver of fees is not an appealable final judgment. Review of such a denial is properly sought in a motion for review” pursuant to Practice Book § 66-6. Cortes v. Cotton, 31 Conn. App. 569, 570 n.2, 626 A.2d 1306 (1993); see also Practice Book § 63-7 (“[t]he sole remedy of any defendant desiring the court to review an order concerning the waiver of fees, costs and security . . . shall be by motion for review under Section 66-6”). It is clear, however, from her preliminary statement of the issues submitted with her appeal form that the defendant is challenging the judgment of conviction, which is an appealable final judgment. We do not condone the actions of the defendant, however, we will consider her appeal on the merits. See Brown v. Rosen, 36 Conn. App. 206, 210, 650 A.2d 568 (1994) (denying motion to dismiss appeal on ground of lack of final judgment where appeal form improperly indicated appeal from order that was not final judgment, but clear from preliminary statement of issues that appellant did appeal final judgment); cf. Rocque v. DeMilo & Co., 85 Conn. App. 512, 527-28, 857 A.2d 976 (2004) (dismissing claims where challenged ruling not indicated on appeal form and raised for first time in appellate brief).
      Moreover, the state failed to object to the late filing or improper appeal form and submitted a substantive response to the defendant’s brief. Thus, any defect has been waived by the state. See Froom Development Corp. v. Developers Realty, Inc., 114 Conn. App. 618, 624-25, 972 A.2d 239 (improper appeal form), cert. denied, 293 Conn. 922, 980 A.2d 909 (2009); Rubenstein v. Rubenstein, 107 Conn. App. 488, 498-99, 945 A.2d 1043 (untimely appeal), cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008).

       The defendant argues, in the alternative, that if the prosecutorial impropriety does not rise to the level of a due process violation, then this court should nevertheless invoke its supervisory authority over the administration of justice and order a new trial.

       The defendant’s requested charge stated in relevant part: “No witness’ testimony is inherently less worthy of belief simply because of the age of the witness. In this case the complaining witness ... is alleged to have been between the ages of [thirteen] and [sixteen]. If the [s]tate proves that fact beyond a reasonable doubt you may consider, after weighing all of the evidence, the fact that the United States Supreme Court and our [s]tate Supreme Court have found that persons under the age of [eighteen] years may lack maturity and are more reckless than adults. A lack of responsibility and an underdeveloped sense of responsibility may be found in youth more often than adults which may lead to a lack of appreciation for the consequences of their actions which is a factor you may consider in determining [the complaining witness’] credibility.”

       The court charged the jury twice, once inadvertently before closing arguments and again after closing arguments. With the exception of stating, “A word about credibility of the witnesses,” during the second charge, both charges were given as follows: “In deciding what the facts are you must, of course, consider all the evidence. In doing this you must decide which testimony to believe and which testimony not to believe. You may believe all, none, or any part of any witness testimony. In making that decision you may take into account a number of factors, including the following: Was the witness able to see or hear or know of the things about which that witness testified? How well was the witness able to recall and describe those things? What was the witness’ manner while testifying? Did the witness have an interest in the outcome of this case, or any bias or prejudice concerning any party, or any matter involved in the case? How reasonable was the witness’ testimony when considered in light of all of the evidence in the case? And was the witness’ testimony contradicted by what that witness has said or done at another time, or by the testimony of other witnesses or by other evidence?
      “If you believe that a witness has deliberately testified falsely in some respect you should carefully consider whether you should rely upon any of his or her testimony. Whether you credit a witness’ testimony in whole, or in part, or not at all, is solely for you the jury to determine using your experience, knowledge of human nature, common sense, and awareness of the motives which influence and control human nature.
      “In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider therefore whether a contradiction is an innocent lapse of memory or an intentional falsehood that may depend on whether it has to do with an important fact or with only a small detail. You may consider testimony on both direct and cross-examination in deciding whom to believe in this case. These are some of the factors you may consider in deciding whether to believe testimony. You may consider all the evidence in the case. It is the quality of the evidence, not the quantity of the evidence, which you should consider.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    SHARON CAPEL v. PLYMOUTH ROCK ASSURANCE CORPORATION
    (AC 34524)
    Gruendel, Robinson and Alvord, Js.

      Argued January 15
    officially released April 2, 2013

      Donald C. McPartland, with whom, on the brief, was Thomas G. Parisot and Tara L. Shaw, for the appellant (plaintiff).

      Michael P. Mullins, with whom, was Joseph K. Scully, for the appellee (defendant).

      Charles T. Lee, Rachel L. Ginsburg, Amy Bach, pro hac vice, and Edward J. Stein filed a brief for United Policyholders as amicus curiae.

      Wystan M. Ackerman and Gerald P. Dwyer, Jr., filed a brief for the Insurance Association of Connecticut et al. as amici curiae.
   Opinion

GRUENDEL, J.

This appeal comes to us on a reservation of a legal issue pursuant to Practice Book § 73-1. Because it is not reasonably certain to enter into the decision of the case, we decline to answer the reserved question.

The facts relevant to this appeal are gleaned from the November 18, 2009 revised complaint, the March 9, 2012 answer and the stipulation of the parties approved by the trial court on March 15, 2012. The plaintiff, Sharon Capel, as mother and next friend of Donte Capel, brought this action against the defendant insurance company, Plymouth Rock Assurance Corporation (Plymouth Rock). On May 19, 2006, a motor vehicle owned and operated by Charles Ingala struck Donte Capel, causing severe bodily injuries. Approximately one week later, Ingala’s attorney provided written notice of a potential claim to Plymouth Rock. On June 7, 2006, Plymouth Rock responded that, at the time of the accident, Ingala did not have a valid insurance policy with it.

The plaintiff thereafter raised a claim with Plymouth Rock in January, 2008. On January 25, 2008, Plymouth Rock denied that claim on the ground that Ingala did not have a valid insurance policy with it at the time of the accident.

The plaintiff then commenced a civil action against Ingala, of which she provided notice to Plymouth Rock. Plymouth Rock did not defend Ingala in that proceeding and declined to indemnify him in any manner. Rather, Ingala appeared pro se in that proceeding and took no action to defend himself. Accordingly, the court rendered a default judgment against him. Following a hearing in damages, the court found that the plaintiff suffered $1,537,192 in compensatory damages. Pursuant to General Statutes § 14-295, the court awarded the plaintiff double damages, thereby rendering judgment against Ingala in the amount of $3,074,384.

The plaintiff subsequently brought the present action against Plymouth Rock. In count one, the plaintiff alleges that Plymouth Rock breached its duties to defend and indemnify Ingala pursuant to a policy of insurance issued on February 7,2006. Count two alleges that Plymouth Rock acted in bad faith and breached the covenant of good faith and fair dealing, while count three alleges estoppel. Counts four and five allege violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. Count six alleges negligent misrepresentation on the part of Plymouth Rock. Plymouth Rock’s answer denied liability under all counts. In particular, the answer denied the plaintiffs allegations that it issued a policy to Ingala and that “the policy issued by [Plymouth Rock] to . . . Ingala was in full force and effect on May 19, 2006, at the time that [Donte Capel] suffered his injuries . . . .”

On March 15, 2012, the parties filed with the trial court a stipulation pursuant to Practice Book § 73-1. That stipulation set forth one question for the advice of our Supreme Court: “In a claim against Plymouth Rock for breach of contract for failure to defend and indemnify Charles Ingala, brought by the Capéis as judgment creditors, are the damages limited to the limits of the putative liability policy, $300,000?” The court at that time reserved that question “for the consideration and advice of the Supreme Court.” The Supreme Court subsequently transferred the matter to this court pursuant to Practice Book § 65-1.

It is well established that “[a] trial court cannot, by a reservation, compel action by this court.” Barr v. First Taxing District, 147 Conn. 221, 223, 158 A.2d 740 (1960); accord United Technologies Corp. v. Groppo, 35 Conn. App. 72, 75, 644 A.2d 1309 (1994) (“[a] trial court cannot compel this court to render advisory type opinions by the simple expedient of reserving questions to this court that do not meet the criteria set forth in General Statutes § 52-235 and Practice Book § 4147 [now § 73-1]”). Neither our Supreme Court nor this court is “bound to entertain a reservation, and whether it will do so rests in its discretion. . . . The extent to which we will entertain a reservation also rests in the discretion of this court.” (Citation omitted.) Gianetti v. Norwalk Hospital, 211 Conn. 51, 56, 557 A.2d 1249 (1989).

“While a reservation of questions of law can, in an appropriate case, promote simplicity, directness and economy of judicial action, it does not necessarily follow that a case which appears to present an unusual factual situation or involve a number of legal issues should be reserved.” (Internal quotation marks omitted.) Barr v. First Taxing District, supra, 147 Conn. 223-24. As our Supreme Court observed more than a century ago: “[I]t is certain that [what is now General Statutes § 52-235] did not contemplate, and ought not to be construed to permit, that every question which a trial court may encounter in the progress of a cause, much less every one which it may anticipate that it may encounter, might be brought here at once upon its being either met or scented from afar, and its determination had for the guidance of the trial court. Such a practice would inevitably result in this court being called upon to formulate principles of law which would never enter into the determination of a cause, to formulate such principles in an abstract form suited to more or less general application and not as related to a concrete state of facts and narrowed and simplified by such relation, to create a mass of dicta embodying statements of abstract general principles which might some day rise up to harass judicial action, and to unnecessarily multiply the number of appearances in this court which an action might have before final disposition was made of it” Hart v. Roberts, 80 Conn. 71, 74, 66 A. 1026 (1907).

As a result, our appellate courts refuse to “entertain a reservation in an action which is not ready for final judgment unless the questions presented are such as are, in our opinion, reasonably certain to enter into the decision of the case and it appears that their determination would be in the interest of simplicity, directness and economy of judicial action.” Hoblitzelle v. Frechette, 156 Conn. 253, 255, 240 A.2d 864 (1968). The reserved question here plainly fails to meet those criteria.

The reserved question asks this court to determine “[i]n a claim against Plymouth Rock for breach of contract for failure to defend and indemnify Charles Ingala, brought by the Capéis as judgment creditors, are the damages limited to the limits of the putative liability policy . . . .” Our answer to that question is not reasonably certain to enter into the decision of the case because, as was the case in Duggins v. H.N.S. Management Co., 34 Conn. App. 863, 866, 644 A.2d 376 (1994), the stipulation does not provide a factual predicate for the question reserved. From the outset of this litigation, Plymouth Rock steadfastly has denied the plaintiffs allegation that it insured Ingala at the time of the accident. At oral argument before this court, counsel for Plymouth Rock stated that “there is definitely a hotly contested issue of whether the tortfeasor, Mr. Ingala, was insured.” Asked specifically if he was prepared to concede that Ingala was insured by Plymouth Rock, counsel responded, “Absolutely not.” Counsel for the plaintiff likewise represented at oral argument that the parties disagreed as to whether Ingala was insured, and, hence, whether a contractual relationship existed between him and Plymouth Rock.

As a result, even if we were to answer the reserved question, the trier of fact nevertheless will have to determine whether Ingala in fact was insured by Plymouth Rock prior to rendering its ultimate decision. If the trier of fact answers that query in the negative, then our answer to the reserved question “would never enter into the determination of the cause.” United Technologies Corp. v. Groppo, supra, 36 Conn. App. 80. We therefore conclude that the question presented by the reservation is not, in our opinion, “reasonably certain to enter into the decision of the case . . . Hoblitzelle v. Frechette, supra, 156 Conn. 266; Practice Book § 73-1 (e). Distilled to its essence, the reserved question requests an advisory opinion, which we cannot provide. See State v. Ross, 237 Conn. 332, 338, 677 A.2d 433 (1996); see also Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988) (“we do not render advisory opinions”); Peterson v. Robles, 134 Conn. App. 316, 321, 39 A.3d 763 (2012) (“we are not jurisdictionally competent to issue advisory opinions”).

We decline to answer the reserved question.

No costs will be taxed in this court to any party.

In this opinion the other judges concurred.

       Practice Book § 73-1 provides in relevant part: “(a) Any reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall be taken directly to the supreme court.
      “(b) All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “(c) Before any question shall be reserved by any court, counsel shall file in that court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the appellate court having jurisdiction would be in the interest of simplicity, directness and economy injudicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the appellate court having jurisdiction. The stipulation shall also designate the specific pleadings in the trial court case file which are necessary for the presentation of the question or questions sought to be reserved and shall state the undisputed facts which are essential for determination of the question or questions sought to be reserved. With the stipulation the parties shall file a joint docketing statement in the format specified in Section 63-4 (a) (4) for regular appeals. . . .
      “(e) The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .”

       The parties’ stipulation acknowledges that, on February 7, 2006, Plymouth Rock issued policy number ACT 810222300 to Ingala for the period of April 1, 2006, to April 1, 2007. The limit of liability contained therein was $300,000. On March 4, 2006, Plymouth Rock mailed a bill to Ingala at his home address that (1) set forth the Plymouth Rock policy number and policy period, (2) indicated that payment was due to Plymouth Rock by April 1, 2006, and (3) listed the minimum amount due as $370.66. On April 4, 2006, Plymouth Rock cancelled Ingala’s policy. Nevertheless, Plymouth Rock did not provide a statutory notice of cancellation to Ingala pursuant to General Statutes § 38a-341 and did not communicate with Ingala by any method the fact that it had cancelled the policy. On May 23, 2006, Plymouth Rock received and deposited a check from Ingala in the amount of $370.65, which was dated May 18, 2006 — the day before Ingala’s motor vehicle struck and injured Donte Capel. When Plymouth Rock could not match the check to an existing policy, it refunded that payment to Ingala by check dated June 8, 2006.

       General Statutes § 14-295 provides: “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner’s operation of the motor vehicle.”


author: ROBINSON, J.

text:
    MICHAEL J. NICHOLS v. THE MILFORD PEDIATRIC GROUP, P.C.
    (AC 34221)
    Lavine, Robinson and Borden, Js.
    Argued January 9
    officially released April 2, 2013

      John H. Harrington, for the appellant (plaintiff).

      Jessica D. Meerbergen, with whom, on the brief, was William J. Scully, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Michael J. Nichols, appeals from the judgment of the trial court dismissing his action against the defendant, The Milford Pediatric Group, P.C., on the ground that the plaintiff failed to file a certificate of good faith and a written opinion letter from a similar health care provider as required by General Statutes § 52-190a (a). The plaintiff claims that he was not required to comply with § 52-190a because the alleged negligence did not constitute a claim of medical malpractice. We conclude that the plaintiff was required to comply with § 52-190a and, thus, affirm the judgment of the court.

The following facts as alleged in the operative amended complaint and procedural history are relevant to our disposition of this appeal. At the time of the alleged injuries, the plaintiff was a patient of the defendant for the purpose of obtaining a physical examination. As part of that examination, a medical assistant employed by the defendant collected a blood sample from the plaintiff “employing a finger-stick device.” The medical assistant directed the plaintiff to sit upright on the edge of the examination table with his feet hanging down over the floor. While his blood was being collected, the plaintiff fainted and fell, face first, onto the floor of the examination room. The plaintiffs face struck the floor, damaging several teeth. A tooth also punctured his lip, and he suffered a severe facial laceration.

The plaintiff filed the underlying action against the defendant. The initial complaint consisted of a single count in which the plaintiff claimed that his injuries were foreseeable and caused by the defendant’s negligence. He alleged that the defendant was negligent in that it failed to insure his safety, directed him to sit upright on the examination table during the blood sampling process rather than to he supine on the table, failed to properly train and supervise the medical assistant who drew his blood, failed to warn the plaintiff and failed to fohow standard procedures used to safeguard patients during the blood sampling process. The defendant filed a motion to dismiss the complaint on the ground that the plaintiff had not attached to his complaint a certificate of good faith or a written letter from a similar health care provider in accordance with § 52-190a (a).

The plaintiff filed an objection to the motion to dismiss, arguing that he was not required to comply with § 52-190a (a) because his action sounded in ordinary negligence rather than medical malpractice. A few days later, the plaintiff filed a request for leave to amend his complaint attached to which was a copy of the proposed amended complaint. The defendant objected to the court allowing the plaintiff to amend his complaint, arguing, inter alia, that the plaintiff was attempting to alter the nature of his claims to avoid dismissal. The court granted the request to amend. The amended operative complaint contained two counts — one captioned “negligent supervision” and the other invoking the doctrine of res ipsa loquitur. The amended complaint restated the allegations detailing the manner in which the defendant was negligent, including, inter alia, that the defendant failed to prevent any injury while on the defendant’s premises, failed to properly train or supervise the employee who conducted the blood sampling and “failed to adequately train educate or instruct its staff to recognize a syncopic reaction to blood sampling and to prevent injury therefrom or provide an adequate response.”

After conducting a hearing on the motion to dismiss, the court issued a memorandum of decision granting the motion on the basis of the plaintiffs failure fully to comply with § 52-109a (a), concluding that “[b]ecause the alleged negligence was substantially related to a medical diagnosis or treatment and involved the exercise of medical judgment, the court is constrained to conclude that the allegations in the complaint are those of professional negligence, despite the labels the plaintiff has applied to his claims.” This appeal followed.

We begin by setting forth the standard of review we employ in considering the trial court’s decision to grant the defendant’s motion to dismiss. In reviewing a decision on a motion to dismiss, we “take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). Our Supreme Court has held that the failure of a plaintiff to comply with the statutory requirements of § 52-109a (a) results in a defect in process that implicates the personal jurisdiction of the court. See Morgan v. Hartford Hospital, 301 Conn. 388, 401-402, 29 A.3d 451 (2011). Thus, where such a failure is the stated basis for the granting of a motion to dismiss, our review is plenary. See Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010) (challenge to personal jurisdiction of court presents question of law over which our review is plenary). Further, to the extent that our review requires us to construe the nature of the cause of action alleged in the complaint, we note that “[t]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

The plaintiffs primary claim on appeal is that he was not obligated to comply with § 52-190a (a) because he was not alleging medical malpractice. He asserts that, rather than alleging medical malpractice, he sought to recover on a theory of ordinary negligence arising from the defendant’s failure adequately to hire, to train and to supervise the employee who collected his blood sample. After closely reviewing the circumstances surrounding the allegations of negligence in the present case, we are not persuaded by the plaintiffs arguments.

Section 52-190a (a) provides in relevant part: “No civil action . . . shall be filed to recover damages resulting from personal injury ... in which it is alleged that such injury . . . resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

In Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001) (certification improvidently granted), this court was presented with an issue similar to the one now before us. The plaintiff in Trimel, who had fallen when she had tried to move herself unassisted from a wheelchair to an exercise mat in order to participate in a physical therapy session, filed an action against the hospital rehabilitation center and the affiliated physical therapy clinic, alleging that her injuries were the result of their negligence in allowing her to act unassisted. Id., 354-55, 358. The plaintiff did not file a good faith certificate as required pursuant to the predecessor of the current § 52-190a (a) and claimed that one was not required because she was suing the defendants on a theory of ordinary negligence, not medical malpractice. Id., 355. The trial court concluded to the contrary that the claims sounded in medical malpractice and, thus, a certificate of good faith was required. Id.

In affirming the trial court’s decision in Trimel, this court established a three part test for determining whether allegations sound in medical malpractice, stating: “The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. [Professional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill .... From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 357-58; see also Boone v. William W. Backus Hospital, supra, 272 Conn. 562-63 (applying test as set forth in Trimel); Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 576, 966 A.2d 813 (same), cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

In the present case, the plaintiff concedes that the first prong of the test set forth in Trimel has been met because he sued the defendant in its capacity as a professional medical service provider. His challenges instead focus on the two remaining prongs. According to the plaintiff, prong two is not met because the blood collection by the medical assistant was not of a specialized medical nature arising out of the medical professional-patient relationship. The plaintiff also argues that the negligence alleged was not substantially related to the plaintiffs treatment and did not involve the exercise of medical judgment so that the “case may be tried without any medical testimony whatsoever,” and “a medical opinion is not only unnecessary, but would be superfluous.” We disagree with the plaintiffs arguments and conclude to the contrary that, on the basis of the facts alleged, both prongs are satisfied.

Regarding the second prong, the plaintiff argues that the blood collection at the heart of his negligence claim was not of a specialized medical nature that arose out of a medical professional-patient relationship. The plaintiff contends that the negligence occurred “in the absence of any professional relationship.” The plaintiff alleged in his complaint, however, that he was injured at the defendant’s offices while a patient of the defendant for the purpose of undergoing a physical examination. He specifically alleged that his injuries occurred during the course of that medical examination. A medical professional-patient relationship therefore existed at all relevant times.

The plaintiff nevertheless contends that the finger-stick method employed to collect his blood sample was a “wholly ministerial act” not performed by a medically trained professional, thereby suggesting that the action that ultimately led to injuries alleged was not of a specialized medical nature. His argument, however, overlooks the fact that the blood collection at issue admittedly was conducted as part of the overall medical examination by the defendant. A physical examination is care or treatment that requires compliance with established medical standards of care and, thus, necessarily is of a specialized medical nature. Allegations of negligence directed toward the defendant’s delegation of routine medical procedures performed as part of such an examination or the proper training of those agents who may be tasked with performing such procedures, such as the allegations raised by the plaintiff in the present action, directly relate to the medical treatment of the patient. On the basis of our review, we are left to conclude, as did the trial court, that the negligence alleged by the plaintiff was of a specialized medical nature arising out of a medical professional-patient relationship.

We next turn to the third prong of the test, which requires us to consider whether the negligence alleged was substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. The negligence alleged by the plaintiff is that the defendant improperly trained and supervised the agent who collected the plaintiffs blood. As a result of that negligence, the defendant’s agent allegedly failed to have the plaintiff lay supine on the examination table during the blood collection procedure and to recognize a “syn-copic reaction to blood sampling,” both of which failures allegedly resulted in the plaintiffs falling and injuring himself. The mere fact that the blood collection technique utilized in the present case may have been routine in nature and may or may not have been performed by a medically trained professional is of no matter to our analysis. We already have established that the blood collection at issue occurred as a part of a physical examination of the plaintiff by the defendant. A physical examination is related to medical diagnosis and treatment of a patient; therefore, any alleged negligence in the conducting of such an examination is “substantially related” to medical diagnosis or treatment. Further, whether the defendant acted unreasonably by allowing a medical assistant to collect blood samples unsupervised and in the manner utilized and whether it sufficiently trained its employee to ensure that any blood collection was completed in a safe manner, including imparting the knowledge necessary to recognize a “syncopic reaction to blood sampling,” clearly involves the exercise of medical knowledge and judgment. Accordingly, we disagree with the plaintiffs assertion that any medical opinion would be unnecessary or superfluous. We conclude that the third prong is also met.

On the basis of our consideration of the three prongs of the test to determine whether a claim sounds in medical malpractice, we conclude that the trial court properly characterized the plaintiffs complaint as a medical malpractice claim. We necessarily reach the additional conclusion that the plaintiff was required to satisfy the requirements of § 52-190a (a) by filing a good faith certificate and an opinion letter by a similar health care provider when he initiated this action. Because the plaintiff failed to comply fully with all of the requirements set forth in § 52-190a (a), we ultimately conclude that the court properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff included a certificate of good faith with his amended complaint, but not an opinion letter from a similar health care provider. Because § 52-190a (a) requires that both a good faith certificate and an opinion letter be included at the commencement of the action; Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 581, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009); the plaintiffs continued failure to provide an opinion letter obviates the need for us to decide whether the inclusion of the missing good faith certificate with the amended complaint cured that particular defect.

       As noted by the defendant in its brief, there are no allegations in the complaint regarding the medical training, or lack there of, of the employee who collected the plaintiffs blood sample. The complaint simply describes the employee as a “medical assistant.”

       To prevail in the present case, the plaintiff would need to present evidence to the jury that the defendant’s actions fell short of the professional standard of care. It follows, therefore, that we find no merit in the additional arguments raised by the plaintiff in his appellate brief that compliance with § 52-190a was not required in this case because applicable expert medical opinion evidence would not be necessary at trial to support his medical malpractice claim and because the doctrine of res ipsa loquitur applies. See Amsden v. Fischer, 62 Conn. App. 323, 331, 771 A.2d 233 (2001) (expert testimony generally required in medical malpractice actions to establish both standard of care and breach of that standard); see also Wilcox v. Schwartz, 303 Conn. 630, 649 n.11, 37 A.3d 133 (2012) (doctrine of res ipsa loquitur permits jury to infer negligence only when no direct evidence of negligence introduced and doctrine ordinarily does not apply to medical malpractice claims).


author: PER CURIAM.

text:
    RAYMOND GODAIRE v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 34652)
    Lavine, Bear and Sheldon, Js.

      Argued January 15
    officially released April 2, 2013

      Raymond Godaire, pro se, the appellant (plaintiff).

      Lisa Fein Siegel, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (named defendant).

      Daniel Shapiro, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant department of public health).
   Opinion

PER CURIAM.

The sole issue presented in this appeal is whether the trial court erred in dismissing the plaintiffs administrative appeal from a final decision of the defendant freedom of information commission (commission) for lack of subject matter jurisdiction. The ground for dismissal was the plaintiffs failure to serve the commission with a copy of his administrative appeal within forty-five days of the mailing of the final decision therein complained of, as required by General Statutes § 4-183 (c). Although the plaintiffs admittedly late service of his administrative appeal is claimed to have resulted from misinformation he had received from a court clerk in the judicial district of New London as to how he was required to serve his appeal, we conclude that his late appeal cannot be saved from dismissal under the doctrine of equitable tolling because the forty-five day service requirement established by § 4-183 (c) is jurisdictional in nature, and thus cannot be waived or circumvented for any reason. See Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854-56, 633 A.2d 305 (1993) (“The legislature intended the forty-five day time limitation for filing of an appeal under the [Uniform Administrative Procedure Act] to remain a prerequisite to subject matter jurisdiction. ... If there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4-183 (c) . . . .” [Citations omitted; internal quotation marks omitted.]).

Here, because it is conceded that the plaintiff failed to serve the commission with his administrative appeal until fifty-three days after the appealed from final decision was mailed to him, the trial court lacked subject matter jurisdiction over that appeal. Accordingly, the trial court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

       The plaintiff also named the department of public health and its commissioner as defendants.

       General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. . . .
      “(c) (1) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under sard section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4-181a, or (3) within forty-five days after mailing of the final decision made after reconsideration pursuant to subdivisions (3) and (4) of subsection (a) of section 4-181a or, if there is no mailing, within forty-five days after personal delivery of the final decision made after reconsideration pursuant to said subdivisions, or (4) within forty-five days after the expiration of the ninety-day period required under subdivision (3) of subsection (a) of section 4-181a if the agency decides to reconsider the final decision and fails to render a decision made after reconsideration within such period, whichever is applicable and is later, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of New Britain. . . .”

       The doctrine of equitable tolling does not apply to circumstances in which the time limitation implicates subject matter jurisdiction. Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 777 A.2d 645 (2001).


author: ESPINOSA, J.

text:
    STATE OF CONNECTICUT v. IRA ALSTON
    (AC 33244)
    Beach, Bear and Espinosa, Js

      Argued January 3
    officially released April 2, 2013

      David J. Reich, assigned counsel, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, was Matthew C. Gedansky, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The defendant, Ira Alston, appeals from the judgment of conviction rendered following his guilty plea to the crime of possessing a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a. The defendant claims that the court (1) improperly accepted his plea because it was not made voluntarily and (2) lacked subject matter jurisdiction because the information failed to state all of the essential elements of the crime with which he stood charged. We affirm the judgment of the trial court.

By substitute information dated November 20, 2008, the state charged the defendant with possessing a weapon or dangerous instrument in a correctional institution. On October 1, 2009, the defendant’s attorney, public defender Douglas Ovian, informed the court that the defendant wished to plead guilty in accordance with a plea bargain reached with the state. After the defendant entered a guilty plea, the prosecutor set forth the factual basis for the plea. The prosecutor stated that on June 30, 2008, while the defendant was an incarcerated prisoner at Northern Correctional Institution, he was found to possess an instrument consisting of a pen with a razor blade attached to it. The instrument was found on the defendant’s person, concealed in his boxer shorts. Days prior to this discovery, the defendant and his cellmate were given razors for shaving purposes, but later told prison staff that they had disposed of the razors by flushing them down the toilet. Following a canvass of the defendant, the court found that the plea was knowingly, voluntarily and intelligently entered with the effective assistance of counsel, and accepted the plea. Thereafter, the court imposed the agreed upon sentence of one year incarceration, consecutive to the defendant’s existing term of incarceration. This appeal followed.

I

First, the defendant claims that the court improperly accepted his plea because it was not made voluntarily. We disagree.

“[I]t is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20].” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006).

“Due process requires that every valid guilty plea be demonstrably voluntary, knowing and intelligent .... We . . . require the trial court affirmatively to clarify on the record that the defendant’s guilty plea was made intelligently and voluntarily. ... In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence. . . . The defendant must also be aware of the actual value of any commitments made to him by the court . . . because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. ... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances. . . . [W]e conduct a plenary review of the circumstances surrounding [a] plea to determine if it was knowing and voluntary.” (Internal quotation marks omitted.) Caez v. Commissioner of Correction, 107 Conn. App. 617, 619-20, 946 A.2d 279, cert. denied, 289 Conn. 903, 957 A.2d 868 (2008).

The defendant argues that his statements during the plea canvass reflect that his plea was coerced, rather than voluntary. The plea was coerced, he asserts, because it resulted from the denial of his right to the effective assistance of counsel. He states that “[the] plea was the result of force because it was based on his belief that his attorney failed to represent him.” He argues that his statements at the time of his plea did not reflect that the plea was voluntary, the court did not make a record to demonstrate the voluntariness of the plea and that this court cannot presume that the plea was voluntary. The defendant did not raise the present issue before the trial court, either by moving to withdraw the plea or otherwise. He affirmatively seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review and the claim implicates the defendant’s right to due process and, thus, is reviewable under Golding. See, e.g., State v. Gordon, 69 Conn. App. 691, 694, 796 A.2d 1238 (2002).

The following additional facts are relevant to our analysis. On October 1, 2010, before the court, Hon. Terence A. Sullivan, judge trial referee, the defendant withdrew his prior pleas and elections, and pleaded guilty to the crime of possessing a weapon or dangerous instrument in a correctional institution. The prosecutor set forth the factual basis for the plea and indicated that the plea agreement was for one year to serve, consecutive to any sentence imposed previously.

The court proceeded to canvass the defendant concerning his plea. The court asked the defendant if he had discussed with Ovian the decision to change his plea. The defendant replied affirmatively. The court asked the defendant if Ovian had explained the essential elements of the crime to him. The defendant replied that he did not understand the elements of the crime. After a colloquy between the court, Ovian and the defendant, the defendant stated: “I don’t understand it . . . what I do understand is regardless of . . . the representation that I’ve been given by Douglas Ovian, that it really doesn’t matter. So, weighing those options, [if] I go to trial with his representation, there’s no way I’m going to be successful whether I’m guilty or not guilty. So, I’m just going to take the one year instead of going to trial with him and getting [up to a twenty-five year term of incarceration].”

The court then asked if the defendant intended to make an Alford plea, at which time Ovian stated that he was unsure. The following colloquy occurred:

“[The Defendant]: I don’t even understand [the] Alford plea. This is new to me. I didn’t get [any] notice. I didn’t even know I had court today. I was pulled in, and he’s telling me all of this, that we’re starting a jury trial. He didn’t even discuss trial strategy with me. So, in light of all of that, I know I’m unprepared for a trial. With his representation, there ain’t no way I will be successful at a trial. It just came up today. Now, Alford came up today. All of this is new today. And I don’t understand — I never seen the Alford case. I don’t know what Alford requires, so in light of one year to what he says, twenty-five years, and the representation that I’m given, I’m stuck between a hard spot and a rock.

“The Court: So, tell me what you want to do?

“[The Defendant]: In light of everything I just said, I don’t have the necessary means to employ private counsel. I’m not saying that I’m guilty.”

Additional discussion between the court and the defendant occurred. Once more, the court discussed with the defendant the elements of the crime. The defendant questioned whether the state had to prove that he used a dangerous instrument. The court informed the defendant that this was not the case. The defendant represented that he understood that, by pleading guilty, he was forgoing his right to a trial, his right to remain silent, his right to confront adverse witnesses and present evidence on his behalf and his right to require the state to prove his guilt beyond a reasonable doubt. The defendant stated that he understood the state’s burden of proof with regard to the crime with which he stood charged. The following colloquy then occurred:

“The Court: Okay. Now, I hate to even ask this because it’s — you’re not thinking the way that I’m thinking — but I have to ask you, is anyone threatening or forcing you to enter this plea today?

“[The Defendant]: Forced by?

“The Court: By anybody? Is anybody threatening you that . . . you have to plead guilty today?

“[The Defendant]: Not in the sense that you’re presenting it. It means, like, physical harm?

“The Court: I’m talking about any kind of coercion, threats—

“[The Defendant]: I feel pressured, yes.

“The Court: If you don’t plead guilty, we’re going to do something to your family. If you don’t do something, we’re going to take you out and beat you up — that type of thing.

“[The Defendant]: Not in that context, no.”

The court questioned the defendant about the plea agreement with the state, the sentence to which he was exposed if he did not plead guilty and other consequences of his plea. The defendant stated that he understood these facts and consequences. The following colloquy ensued:

“[The Court]: You’ve indicated to me that you understand what the plea agreement is, and I’m going to ask you once more, are you sure that this is what you want to do today, because it has to be decided now. I need to know whether or not you — I’m asking you for a final time, is this what you’ve decided to do, not that you like it, but this is what you’ve decided to do and it’s your decision. It’s your decision right now, but if I find you guilty, then the decision is gone.

“[The Defendant]: In light of the circumstances, yes, I did decide.

“The Court: Okay. And this is what you want to do today?

“[The Defendant]: In light of the circumstances, yes.”

The court found that the plea was entered knowingly, voluntarily and intelligently, with the effective assistance of counsel. The court found that there was a factual basis for the plea. The court accepted the plea and found the defendant guilty of possessing a weapon or a dangerous instrument in a correctional institution. The court asked the defendant if he wished to have a presentence investigation, to which the defendant replied, “I accept the plea offer.”

The court invited the defendant to address the court prior to imposing sentence. The defendant questioned whether he had the right to appeal, and then stated: “What I’m going to say is that the only reason why I’m taking the plea is because I feel under these circumstances there has been nothing done on my behalf that would even give me the remotest possibility of being successful at a jury trial. Weighing that against the state’s resources, I have no other choice but to accept one year or go to trial under the circumstances and possibly to be exposed to twenty-five years.” The court replied: “I think you can appeal. I think anybody can appeal.” Thereafter, the court imposed his sentence.

We carefully have reviewed the court’s canvass of the defendant. The transcript of the proceeding reflects, and the defendant does not challenge, that the court’s canvass complied with the requirements of Practice Book §§ 39-19 and 39-20. The narrow issue is whether the defendant’s statements reflected that the plea was not voluntary. We reject the defendant’s argument that his statements reflected coercion. The defendant expressed his belief that, with Ovian’s representation, his chances for success at trial were low. Before this court, the defendant alleges that “he indicated that he was pressured [into entering a guilty plea] in the sense that if he did not enter a plea, he would have to proceed to trial with an attorney with whom he had a conflict and whom he did not believe would properly represent him.”

The defendant’s argument fails, however, because the defendant’s statements reflect that he personally considered the options available to him on October 1, 2010, and decided that entering a guilty plea was the best option available to him. The decision of whether to plead guilty or proceed to trial is a customary part of the criminal process. The defendant unambiguously explained that his decision was based on his own careful assessment of the options available to him as well as his chances for success at trial. In this sense, the plea was demonstrably voluntary. Nothing in the defendant’s statements suggests that he lacked the freedom to choose between pleading guilty or proceeding to trial.

The defendant’s expression of his subjective beliefs that Ovian’s representation was deficient and that he would not prevail at trial with Ovian’s assistance was not evidence that the defendant’s decision to plead guilty was not voluntary but merely provided a rational explanation for the defendant’s plea. “Because every valid guilty plea must be demonstrably voluntary, knowing and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea.” State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986).

For the foregoing reasons, we conclude that the defendant’s statements during his canvass reflect that his plea was entered voluntarily. Accordingly, we conclude that the defendant cannot prevail under Golding because he has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 240.

II

Next, the defendant claims that the court lacked subject matter jurisdiction because the information failed to state all of the essential elements of the crime with which he stood charged. We disagree.

By way of a short form information, the state charged the defendant with “POSS OF WEAPON/DANGEROUS INST IN CORRECTIONAL FAC ... AT Somers ON OR ABOUT . . . 6/30/2008 IN VIOLATION OF GENERAL STATUTE NO. 53A-174A.” The substitute information, dated November 20, 2008, provides in relevant part: “Matthew C. Gedansky, State’s Attorney for the Judicial District of Tolland accuses IRA ALSTON of POSSESSION OF WEAPON OR DANGEROUS INSTRUMENT IN A CORRECTIONAL INSTITUTION, and charges that in the area of Northern Correctional Institution, 287 Bilton Road, in the town of Somers on or about the 30th day of June, 2008, at approximately 6:00 p.m., the said Ira Alston, being an inmate of such institution, knowingly made, conveyed from place to place, or had in his possession or under his control any firearm, weapon, dangerous instrument, explosive or any other substance or thing designed to kill, injure or disable, in violation of Connecticut General Statutes § 53a-174a.”

Section 53a-174a (a) provides: “A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable.”

The defendant argues that the information did not allege that he committed a crime because it failed to allege the manner in which he used the object found in his possession. The defendant argues that both the statutory definition of “dangerous instrument” and the dictionary definition of “weapon” require a certain type of use with regard to the object that is the subject of the offense. Here, the defendant argues, there was no allegation that he used or intended to use the object in any manner. Citing United States v. Foley, 73 F.3d 484, 487-88 (2d Cir. 1996), the defendant argues that the failure of the information to charge an offense deprived the trial court of subject matter jurisdiction. The defendant’s claim is limited to the jurisdictional issue; he does not argue that the alleged defect in the information caused unfair surprise or any other type of prejudice to the defense. The claim that the information failed to charge an offense is reviewable at any time during the pendency of the proceedings. See Practice Book §§ 41-4 and 41-5.

“When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. . . . Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” (Citations omitted; internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 250, 585 A.2d 677 (1991).

“When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. . . . We have held that [u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.” (Citation omitted; internal quotation marks omitted.) State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984).

Here, the short form information set forth, among other information, the name of the offense, the exact section and subsection of the statute under which the defendant was charged, the date on or about which the crime was committed as well as the location in which the crime was committed. The long form substitute information set forth this same information about the crime with which the defendant was charged as well as a specific description of the elements of the offense.

Previously, we set forth the language of § 53a-174a (a). To sustain a conviction under § 53a-174a, the state bears the burden of proving beyond a reasonable doubt three essential elements, namely, that (1) while the accused was an inmate of a correctional institution (2) he made, conveyed from place to place, possessed or had under his control (3) any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable. The substitute information articulated each of these three essential elements, alleging that the defendant was an inmate at “Northern Correctional Institution” at 6 p.m. on June 30, 2008, at which time he “knowingly made, conveyed from place to place, or had in his possession or under his control” one of the things listed in the statute, specifically, “any firearm, weapon, dangerous instrument, explosive or any other substance or thing designed to kill, injure or disable . . . .”

This court has held that an information that states the exact section and subsection of the statute under which a defendant is charged, as well as the time and place of the alleged unlawful event, is sufficient to charge a defendant with such offense. See, e.g., State v. Vlahos, 138 Conn. App. 379, 385, 51 A.3d 1173 (2012); State v. Reed, 55 Conn. App. 170, 176-77, 740 A.2d 383, cert. denied, 251 Conn. 921, 742 A.2d 361 (1999). Here, the charging instrument at issue surpassed such minimum requirements, articulating each of the essential elements set forth in the statute. The defendant argues that the information failed to state an offense because it was not articulated in accordance with the definition of certain words and phrases that appear in the statutory provision under which he was charged. There is no support in the law for the defendant’s argument that this more detailed type of information was required or that the state’s practice in the present case was constitutionally deficient. Accordingly, we reject the defendant’s jurisdictional challenge.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state also charged the defendant in a part B information as a persistent serious felony offender. The state alleged that the defendant, at the time of trial, was serving a thirty-five year term of imprisonment related to his convictions, in 2002, of manslaughter in the first degree and carrying a pistol without a permit, as well as his conviction, in 2003, of larceny in the third degree. The defendant was not sentenced under that information and it is not germane to this appeal.

       We note that, during the course of the proceedings, the defendant had a history of expressing dissatisfaction with his attorney, Ovian. At his first court appearance related to the present charge on October 15, 2008, the defendant indicated to the court that he wished to proceed as a self-represented party. The court canvassed the defendant and permitted him to exercise his right of self-representation. On November 4, 2008, the court granted the defendant’s request to appoint Ovian as standby counsel. At another court appearance on December 16, 2008, the court granted the defendant’s request to appoint Ovian to represent him fully in this matter. At a court appearance on July 10, 2009, the defendant informed the court that he did not want Ovian to represent him and that he wanted a ninety day continuance for the purpose of hiring an attorney to represent him. After Ovian addressed the court, stating that he had interacted well with the defendant, the court denied the defendant’s request.
      Thereafter, on August 5, 2009, the defendant personally filed a “motion for replacement of court appointed counsel.” Among other things, he represented that Ovian had acted contraiy to his legal interests, conspired with the state’s attorney and failed to pursue matters related to his case. On September 4, 2009, at a hearing on the motion, the defendant withdrew the motion.
      Atahearing on October 1,2010, at which time jury selection was scheduled to commence, the defendant addressed the court, Mullarkey, J., indicating that he did not believe that Ovian was acting in his best interest and that he would like Ovian “to withdraw” from representing him. The defendant stated that Ovian had not pursued certain motions that he believed were worthwhile and that, contrary to Ovian, he was not interested in negotiating a plea bargain with the state. Also, the defendant stated that Ovian failed to challenge the sufficiency of the arrest warrant in this case. The court denied the defendant’s request to remove Ovian as his attorney.
      Thereafter, the defendant invoked his right of self-representation. Once again, the defendant stated that Ovian was not acting in his best interest in that, among other things, he failed to challenge the sufficiency of the arrest warrant, did not file a motion for a bill of particulars, did not provide documents to him, did not perform sufficient legal research and did not communicate with him concerning the case. The court discussed with the defendant the disadvantages of self-representation and afforded the defendant a recess to consider his request. When court was back in session, Ovian stated that the defendant intended to enter a guilty plea. At that point, Judge Mullarkey called a brief recess, and the matter continued before Judge Sullivan.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       For clarity, we observe that the narrow issue before us, relating to the voluntariness of the defendant’s plea, does not require that we assess Ovian’s representation in this matter.

       General Statutes § 53a-3 (7) defines “dangerous instrument,” as that term is used in § 53a-174a, as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .”

       The defendant draws our attention to the definition of weapon appearing at http://www.merriam-webster.com/dictionary/weapon (last visited March 19, 2013), which provides in relevant part: “1. : something (as a club, knife, or gun) used to injure, defeat, or destroy 2. : a means of contending against another.”
      “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” General Statutes § 1-1 (a). “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 826, 14 A.3d 982 (2011).

       The record does not reflect that the defendant requested a bill of particulars. As stated previously, prior to the defendant’s canvass, the prosecutor set forth in detail the factual basis for the plea. At no point did the defendant state that he did not understand this factual basis.


text:
    SANDRA LYNN BUGGY v. GLENN MILLS BUGGY
    (AC 32898)
    DiPentima, C. J., and Lavine and Bear, Js.

      Argued November 29, 2012
    officially released April 2, 2013

      Sandra MacVicar, pro se, the appellant-cross appel-lee (plaintiff).

      Christine D. Salmon, with whom, on the brief, was Mark H. Henderson, for the appellee-cross appellant (defendant).
   Opinion

PER CURIAM.

This appeal and cross appeal arise out of various orders entered by the trial court within a judgment converting a decree of legal separation to a judgment of dissolution. On appeal, the plaintiff, Sandra Lynn Buggy, raises claims primarily addressing the custody order of the parties’ two minor children. On cross appeal, the defendant, Glenn Mills Buggy, challenges certain financial orders relating to child support and alimony. Because neither party has filed a transcript of the proceedings in the trial court, we decline to reach the merits of either party’s claims. We therefore affirm the trial court’s judgment as to both the plaintiffs appeal and the defendant’s cross appeal.

The following facts and procedural history were set out in the court’s October 22, 2010 memorandum of decision. The plaintiff and the defendant were married in October, 1991. The plaintiff filed a complaint seeking a dissolution of marriage on July 1, 2005. On August 3, 2006, the plaintiff filed an amended complaint requesting a legal separation; the separation was granted on August 11, 2006. The parties’ separation agreement was incorporated into the judgment of legal separation. In that agreement, the parties agreed that they would have joint legal custody of their two minor children and that the children’s primary residence would be with the plaintiff.

In November, 2007, the plaintiff filed a motion for contempt relating to financial issues. In April, 2008, the defendant filed a motion for modification of visitation and financial orders. Thereafter, the parties filed various other motions, including a motion for the appointment of a guardian ad litem for the parties’ two minor children, a motion for a psychological evaluation of the parties and a motion for modification of visitation and financial orders.

The court held a hearing on the motion for modification in June, 2010. During the course of the hearing, the court considered the defendant’s amended motion to modify visitation and financial orders. At the conclusion of the hearing, the court entered an order dissolving the parties’ marriage and converted the decree of legal separation to a decree of dissolution. The court determined that a change in custody in favor of the defendant was in the best interests of the minor children and further that there had been a substantial change in the defendant’s financial circumstances. The plaintiff filed this appeal on November 15, 2010; the defendant filed his cross appeal on November 23, 2010.

On appeal, the plaintiff argues that the court erred by (1) using a custody study that was more than six months old, (2) granting a motion in limine but not enforcing it, (3) allowing the defendant to support his girlfriend financially while failing to pay child support and alimony and (4) allowing the guardian ad litem to rely on the custody evaluation for her opinion. On cross appeal, the defendant claims that the trial court erred by (1) failing to make its orders retroactive to the date of service of the motion for modification, (2) failing to terminate the defendant’s payments for work-related day care and to order that any such day care payments be paid by the plaintiff, (3) failing to order a nonmodifiable term of alimony and (4) ordering the defendant to rent a residence in Darien for eight months.

To address these claims adequately, it is necessary for us to review the transcripts of the hearing before the court. Neither party, however, filed with their briefs either the written or electronic versions of the trial transcripts. On February 4, 2013, this court sua sponte ordered the parties to file the necessary transcripts no later than February 20, 2013. No transcripts have been filed.

Where a transcript is required for review of a party’s claims, this court cannot proceed without one. See Rice v. Housing Authority, 129 Conn. App. 614, 619, 20 A.3d 1270 (2011) (transcript of trial was necessary to determine merits of plaintiff’s claim); see also Taylor v. American Thread Co., 200 Conn. 108, 111-12, 609 A.2d 512 (1986) (lack of appropriate transcripts precludes finding of error); DeMilo v. West Haven, 189 Conn. 671, 680-81, 458 A.2d 362 (1983) (lack of transcript of certain testimony precludes review of claim that trial court improperly failed to set aside verdict).

After thoroughly reviewing the briefs, arguments and the record properly before us, we conclude that we are unable to determine the merits of the plaintiffs or the defendant’s claims without the transcripts of the proceedings in the trial corut. In their absence, we are unable to examine all of the relevant evidence that was before the trial court.

The judgment is affirmed.

       Sandra Lynn Buggy is now known as Sandra MacVicar.

       Practice Book § 63-8 states in relevant part: “(a) [T]he appellant shall . . . order . . . from the official reporter a transcript and an electronic version of a transcript of the parts of the proceedings not already on file which the appellant deems necessary for the proper presentation of the appeal. . . . If any other party deems other parts of the transcript necessary, that party shall, within twenty days from the filing of the appellant’s transcript papers, similarly order those parts, and an electronic version of those parts, in writing from the official reporter. . . .
      “(e) (1) The appellant is required, either before or simultaneously with the filing of the appellant’s brief, to file with the appellate clerk one unmarked, nonretumable copy of the transcript, including a copy of the court reporter’s certification page, ordered pursuant to subsection (a).
      “(2) All other parties are likewise required, either before or simultaneously with the filing of their briefs, to file those additional portions ordered pursuant to subsection (a) but shall not include the portions already filed by the appellant. . . .” See Practice Book § 60-6 (“[i]t is the responsibility of the appellant to provide an adequate record for review”).

       The order stated: “No transcripts and no electronic version of the transcripts are on file for this appeal and cross appeal. See Practice Book Sections 63-8, 63-8A. The parties are sua sponte ordered to file with the Appellate Clerk those portions of the transcript deemed necessary for the resolution of the plaintiffs appeal and the defendant’s cross appeal on or before February 20, 2013. Failure to file said transcripts by February 20, 2013, may result in the summary affirmance of the plaintiffs appeal and the defendant’s cross appeal.”