source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    MARY BROOKS v. SCOTT BROOKS
    (AC 30140)
    Bishop, Gruendel and Schaller, Js.

      Argued April 13
    officially released June 1, 2010

      Steven D. Ecker, with whom, on the brief, was Alinor C. Sterling, for the appellant (defendant).

      Kenneth J. Bartschi, with whom were Wesley W. Horton and, on the brief, David Eric Ross, for the appel-lee (plaintiff).

       June 1, 2010, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BISHOP, J.

This marital dissolution appeal requires us to consider the correctness of the trial court’s lump sum alimony order where it was expressly based on an asset valuation determined by the court through a flawed process. Because the court expressly premised its valuation of the defendant’s minority stock holdings in six limited liability companies solely on the basis of the market value of real estate and cash held by those entities, less attendant mortgages, without regard to his minority shareholder status and the limitations of applicable shareholder buy and sell agreements, the lump sum alimony order cannot withstand appellate scrutiny. Accordingly, we reverse the judgment of the trial court only with respect to the financial orders.

The following procedural histoiy and facts are relevant to our discussion of the issues at hand. The plaintiff, Mary Brooks, and the defendant, Scott Brooks, were married in 1993 and have one child who was twelve years old at the time of dissolution. The dissolution trial took place over five days in January and February, 2008. The court heard evidence from both parties, a real estate appraiser and an accountant on behalf of the plaintiff, and several medical professionals regarding the plaintiffs health status and her employability.

The court heard evidence that the forty-eight year old plaintiff, who does not have a college degree, did not hold employment outside of the household during the course of the marriage. Although the court was not persuaded by her testimony that she suffered from Lyme disease, chronic fibromyalgia and chronic fatigue syndrome, the court found that due to her limited education and lack of work experience outside of the home, she was unlikely to ever generate substantial income. As to the claims regarding her medical condition and attendant impairments, the court concluded in sparse terms that “she is simply tired of the marriage.”

The court also heard testimony that the fifty year old defendant, a college graduate, is engaged in the real estate business with his father and his brother. As to the defendant’s financial condition, and in regard to the defendant’s income, the plaintiff adduced evidence that the defendant receives an annual gross salary of $165,000 and, in addition, he has periodically received quarterly dividends of $29,000 and an annual bonus in the range of $3000 to $4000. These payments are in addition to periodic distributions he has received on the occasion of the sale or refinancing of an asset by one or more of the limited liability corporations in which he has an interest.

Much of the evidence adduced at trial concerned the defendant’s interests in various family businesses. The defendant holds noncontrolling interests in six closely held entities: Westfair, Inc.; Westbrook, Inc.; Brooks, Torrey & Scott, Inc.; Milford Realty Corporation; Liberty Rock Realty, LLC; and Granite National Realty, LLC. The companies are engaged in either leasing, or in the case of Brooks, Torrey & Scott, Inc., leasing and managing, commercial real estate. As its principal asset, each business holds a piece of commercial real estate that is leased to various business tenants.

As to the defendant’s interests in these parcels of real estate, the plaintiff offered the testimony of Patrick J. Wellspeak, a commercial real estate appraiser to value the properties owned by corporations in which the defendant had shareholdings but, significantly, not to value the defendant’s interest in these entities. Wells-peak testified that he utilized the market value approach in formulating his appraisal of the real estate held by the limited liability corporations in which the defendant had an interest. Doing so, he concluded that the aggregate fair market value of the properties, as of August 23,2006, was $61,100,000. The report prepared by Well-speak and admitted into evidence indicated that his report was confined to real estate values and that “[i]t is likely that this is only the first issue to be addressed as there are issues relating to outstanding debt and the valuation of the stock which is beyond my expertise.” In response to questioning by the defendant, Wellspeak reiterated that his expertise did not extend to the valuation of stock in a closely held corporation or the value of a person’s interest in such a corporation. In short, the record is plain that Wellspeak testified only as to the real estate values of the properties held by the limited liability corporations in which the defendant had minority interests and he disclaimed any ability to value the defendant’s shareholdings in the companies that owned the real estate he had appraised.

Also testifying at the behest of the plaintiff was David Gallagher, a certified public accountant who had provided accounting services to the parties and to the businesses in which the defendant had interests. Through Gallagher, the plaintiff introduced into evidence the parties’ federal tax returns for several years and federal tax returns and financial statements for several years for the six limited liability corporations in which the defendant had shareholdings. Additionally, the plaintiff introduced a personal financial statement prepared by the Gallagher firm for the defendant as of March 1, 2005. Although none of the documents presented by the plaintiff states a fair market value for the defendant’s stock in any of the businesses in which he has an interest, his financial statement posits $449,000 as the net book value of his investments in these closely held businesses as of December 31, 2004.

On the defendant’s financial affidavit dated January 21, 2008, he reflects the aggregate value of his investments in closely held businesses to be $408,000, part of his total gross assets valued at $1,026,947.74. In addition to his financial affidavit, the defendant produced evidence bearing on the fair market value of his stock in Brooks, Torrey & Scott, Inc., Westfair, Inc., and West-brook, Inc., consisting of stock buyback agreements, each one of which requires any shareholder who wishes to convey his stock to first offer it to the coiporation for repurchase at book value. Each agreement includes a statement expressing a mutual desire to maintain family ownership of the stock in the corporation and a shared concern that the “introduction of non-family stockholders would tend to disrupt the harmonious relationships which have traditionally existed . . . .” Although these agreements, dating back to 1993, had recently been renewed, there was no evidence that then-ongoing existence and effect had any connection to the pending marital dissolution action or that they were based on any factor other than the shareholders’ mutual business judgments regarding the best interests of the involved corporations and their desire that the Brooks family continue to own and operate them.

In formulating its financial orders, the court determined that, based on its consideration of all of the statutory factors, “neither lifetime nor any very extended alimony is warranted.” The court awarded the plaintiff, as unallocated alimony and child support, the sum of $6000 per month for a period of time not to exceed eight years, with the amount and duration not subject to modification except upon remarriage or pursuant to General Statutes § 46b-82 (b). The court also awarded the plaintiff, as lump sum alimony, the sum of $1,730,446, due and payable within sixty days from the date of judgment. The court’s lump sum alimony order was based on the court’s finding of the value of real estate and cash held by the six limited liability corporations in which the defendant had minority stock interests and the percentage of his interest in each entity. The court then ordered that the husband pay to the wife an amount equal to 15 percent of that aggregate amount. Both the plaintiff and the defendant sought reconsideration of the court’s decision, which was denied, and the defendant timely filed this appeal challenging only the court’s lump sum alimony award.

As a threshold matter, we set forth our standard of review. “An appellate court will not disturb a trial . court’s orders in domestic relations cases unless the court has abused its discretion or it is found, that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. ... In reviewing the trial court’s decision under [the abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 843-44, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

“In distributing the assets of the marital estate, the court is required by [General Statutes] § 46b-81 to consider the estate of each of the parties. Implicit in this requirement is the need to consider the economic value of the parties’ estates. The court need not, however, assign specific values to the parties’ assets. ... In assessing the value of the assets that comprise the marital estate, the trial court functions as the trier of fact. The trial court has the right to accept so much of the testimony ... as [it] finds applicable .... [It] arrives at [its] own conclusions by weighing the opinions of the appraisers, the claims of the parties, and [its] own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. ... In selecting and applying an appropriate valuation method, the trial court has considerable discretion. . . . The trial corut’s findings will be overturned only if it misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was [its] duty to regard.” (Citations omitted; internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 531-32, 752 A.2d 978 (1998).

At the outset of our analysis, we note that, as a general proposition, “the trial court need not necessarily specify a valuation method used. Nor is the court required to set forth specific factors that were considered in arriving at that determination.” South Farms Associates Ltd. Partnership v. Burns, 35 Conn. App. 9, 18, 644 A.2d 940, cert. denied, 231 Conn. 912, 648 A.2d 157 (1994). Here, however, the court indicated that it was employing the fair market approach to valuation, an approach with which the defendant took no issue. The question, therefore, is not whether the court utilized a correct approach to valuation, but whether the court’s analysis in using the fair market approach was clearly erroneous. In this regard, the defendant contends that the court improperly equated the value of his interests in the companies with the fair market value of the real estate held by those companies. The defendant claims, as well, that, in determining the value of his interests in the corporations, the court ignored three critical factors, namely: the lack of a ready market for closely held interests; his lack of control of the business entities; and the restrictions on his ability to transfer his shares as evidenced by the buyback agreements pertaining to three of the businesses. We agree.

An assessment of fair market value requires the fact finder to determine “the price that would probably result from fair negotiations between a willing seller and a willing buyer, taking into account all the factors, including the highest and best or most advantageous use, weighing and evaluating the circumstances, the evidence, the opinions expressed by the witnesses and considering the use to which the premises have been devoted and which may have enhanced its value.” (Internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 556-57, 767 A.2d 1169 (2001). Our case law instructs us to be broadly inclusive when considering the admissibility of factors that reasonably might influence a property’s fair market value. See Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 32, 861 A.2d 473 (2004). “Fair market value . . . involves a question of fact. ... As with other questions of fact, unless the determination by the trial court is clearly erroneous, it must stand.” (Citations omitted.) Turgeon v. Turgeon, 190 Conn. 269, 275-76, 460 A.2d 1260 (1983).

Here, the record reflects that the court made no assessment of the marketability of the defendant’s interest in any of the corporations in which he has a minority interest. Rather, the court expressly arrived at its determination simply by multiplying the value of each corporation by the percentage of the defendant’s interest and positing the result as the fair market value of his shareholdings. Although the court has leeway in determining the value of assets in a marital dissolution, a market value approach to valuation, nevertheless, necessarily requires an examination of the marketability of the asset being appraised. Accordingly, in determining the fair market value of the defendant’s stock interests, the court was required to examine and draw some conclusions regarding the amount a willing buyer would and could pay for the defendant’s shares in the various family companies. The record in this instance reflects that the court made no attempt to conduct such an analysis and rejected the notion that the defendant’s interests were limited to book value simply on the basis that to do so would “simply not do justice.” Nevertheless, evidence adduced at trial shows that the defendant had only minority interests in each of the six entities and the buyback agreements of three of those entities restrict the owner of the stock from selling, assigning or in any way transferring that stock without first offering it to the company to be bought back at book value. In its decision, the court made no mention of the marketability of the defendant’s shares or the degree of control he maintains by virtue of his minority interests in the companies. Nor did the court note the restrictions on the defendant’s ability to transfer his interests. Thus, although the court was within its discretion to apply the market value approach in valuing the defendant’s interest in the various companies, the court’s flawed analysis resulted in clearly erroneous valuations.

In reaching our conclusion, we recognize that when a party neglects to provide to the court information regarding the value of his or her assets, that person cannot later complain about the court’s valuation. See Bornemann v. Bornemann, supra, 245 Conn. 535-36. But that teaching is not implicated in this case. Here, the defendant provided the court with three shareholder agreements that require him to sell his stock back to the respective corporations at book value. Importantly, there was no evidence that those agreements were executed for purposes of the divorce proceedings or that they were otherwise the product of collusion or fraud on the plaintiff. Rather, the evidence regarding these agreements showed that they were simply long-standing business arrangements meant to keep the businesses in family hands. Additionally, throughout the plaintiffs presentation of evidence, the defendant vigorously objected to the plaintiffs introduction of the appraisals of the real estate as evidence of the value of his shares in the businesses pointing out to the court that the value of real estate held by the corporations could not simply be equated with the value of each corporation and that the defendant’s interest in each corporation could not be determined simply by employing a mathematical formula. Indeed, at the outset of his testimony, Wells-peak, the plaintiffs real estate appraiser, stated that he was not attempting to value the defendant’s stock interest, commenting instead that he was performing merely the initial step in the valuation and that there would have to be more analysis to determine the value of the defendant’s minority share interest. Before the close of the plaintiffs case, the defendant again brought to the court’s attention his view that the plaintiff had not established evidence of the value of his shareholdings and indicated that he was not going to present his expert on valuation because, he believed, the plaintiff had presented no valuation testimony for him to rebut. Upon hearing this, and in response to the plaintiffs concerns that the defendant was not going to present valuation testimony beyond the terms of the buyback agreements, the court offered the plaintiff a reasonable opportunity to call the defendant’s rebuttal witness herself at a later date in order to put on evidence of the value of the defendant’s minority interests. From the record, it is plain that the plaintiff never took that opportunity.

Although the court has a broad latitude in determining both the method of asset evaluation to employ and the manner in which the court conducts its evaluation, the court is, nevertheless, required to follow some reasonable path in arriving at its asset value determination. Where, as here, the court employs a patently erroneous methodology, its results cannot stand. On the basis of the foregoing, we conclude that the court’s asset valuation was clearly erroneous and therefore, its lump sum alimony award was an abuse of discretion. As noted previously, financial orders in dissolution proceedings have been characterized as “resembling a mosaic, in which all the various financial components are carefully interwoven with one another.” (Internal quotation marks omitted.) Finan v. Finan, 287 Conn. 491, 509, 949 A.2d 468 (2008). Because it is uncertain whether the court’s financial awards will remain intact after reconsidering the issue of its lump sum alimony award consistent with this opinion today, the entirety of the mosaic must be refashioned. See Gershman v. Gershman, 286 Conn. 341, 351-52, 943 A.2d 1091 (2008). Accordingly, a new trial on all financial issues is required. See id., 352.

The judgment is reversed only as to the financial orders and the case is remanded for a new trial on the financial issues.

In this opinion the other judges concurred.

       During the course of the hearing, the parties presented a detailed shared parenting plan that the court adopted. The parenting plan is not at issue on appeal.

       The defendant’s tax returns, which take into account the defendant’s income from his employment as a property manager, in addition to taxable interest, dividends and capital gains, reflect the defendant’s annual income as follows: 2003, $383,954; 2004, $496,350; 2005, $270,423; and 2006, $268,119.

       The defendant also has a one-third vested remainder interest in a testamentary trust in which his father is the lifetime income beneficiary. As to the trust, there was undisputed evidence that the defendant had received an advance of $750,000 against his expectancy in this trust and that the distribution of these funds had been utilized to purchase the family home that the parties agreed would be assigned to the plaintiff.

       At the time of trial, the defendant had a 23.33 percent interest in Westfair, Inc.; a 24.17 percent interest in Westbrook, Inc.; a 23.68 percent interest in Brooks, Torrey & Scott, Inc.; a 33.33 percent interest in Milford Realty Corporation; a 25.5 percent interest in Granite National Realty, LLC; and a 25 percent interest in Liberty Rock Realty, LLC.

       As of August 23, 2006, Wellspeak determined the fair market value of the various real estate holdings as follows: by Westfair, Inc., $20.5 million; by Westbrook, Inc., $20 million; by Brooks, Torrey & Scott, Inc., $1.6 million; by Liberty Rock Realty, LLC, $12 million; by Milford Realty Corporation, $2 million; and by Granite National Realty, LLC, $5 million.

       Although the buyback agreements of only three of the entities were introduced into evidence, it is noteworthy that the aggregate value of the real estate of those three properties is in excess of $40 million.

       In formulating its order, the court credited Wellspeak’s testimony as to the value of the real estate as of January 1, 2008, and the cash and other assets and debts of each corporation as of December 31, 2006. Prom this information, and aware of the percentage of stock owned by the defendant in each corporation, the court made a calculation of the value of the defendant’s ownership interests by multiplying his percentage interest in each corporation by the value of each corporation. Through this process, the court calculated the fair market value of Westfair, Inc., to be $19,497,610, and then multiplied that value by the defendant’s share in the corporation, 23.33 percent, to come up with $4,548,792.41 as the value of the defendant’s interest in that company. In the same manner, the court determined the defendant’s Interests in the remaining entities as follows: Westbrook, Inc., $5,013,330.52; Brooks, Torrey & Scott, Inc., $717,977.60; Liberty Rock Realty, LLC, $680,400; Milford Realty Corporation, $70,907.24; and Granite National Realty, LLC, $504,900.

       In its memorandum of decision, the court stated: “The division shall be based on the appraisal and six schedules set forth by the wife.” Later, pursuant to a motion for articulation, the court issued a “supplement” to its judgment, in which it stated: “The above captioned judgment dated May 27, 2008 (page 5, line 11) is supplemented by including a list of the schedules referenced therein by the attached list marked ‘Exhibit B.’ ” Exhibit B is comprised of a listing of the entities in which the defendant has an interest. Next to each entity is a valuation that is based on Wellspeak’s real estate appraisal of each property, less the mortgage indebtedness regarding each property plus the value of the cash in each corporation. Although the dates of valuation of real estate, cash in the corporations and mortgage indebtedness are different, the defendant makes no distinct claim that combining them for puiposes of ascertaining the value of each corporation was erroneous. Rather, the defendant claims that the court erroneously determined that the value of his stock interest in each corporation could reasonably be determined by this method.

       Internal Revenue Service ruling 59-60, which was cited by the Turgeon court, provides guidelines for ascertaining the fair market value of closely held corporations. Under Revenue Ruling 59-60, “[t]he following factors, although not all-inclusive are fundamental and require careful analysis in each case [in determining fair market value of a closely held corporation]:
      “(a) The nature of the business and the history of the enterprise from its inception.
      “(b) The economic outlook in general and the condition and outlook of the specific industry in particular.
      “(c) The book value of the stock and the financial condition of the business.
      “(d) The earning capacity of the company.
      “(e) The dividend-paying capacity.
      “(f) Whether or not the enterprise has goodwill or other intangible value.
      “(g) Sales of the stock and the size of the block of stock to be valued.
      “(h) The market price of stocks of corporations engaged in the same or a similar line of business having their stocks actively traded in a free and open market, either on an exchange or over-the-counter.” Revenue Ruling 59-60 § 4 (26 C.F.R. § 20.2031-2).

       We recognize that, in a marital dissolution action, the court is not required to value every asset. See Bornemann v. Bornemann, supra, 245 Conn. 531. Our Supreme Corut, however, has noted that “although not expressly required by statute, a trial court, when utilizing a method to ascertain the value of a [deferred benefit], should reach that value on the record. Casting the judgment in specific amounts will make the result more comprehensible for the litigants and will facilitate appellate review as often as such review may become necessary.” (Internal quotation marks omitted.) Krafick v. Krafick, 234 Conn. 783, 804, 663 A.2d 365 (1995). Here, the court did reach conclusions regarding the value of the defendant’s business interests. Because the court did ascribe values to the defendant’s shares in each of the six entities, decisional law suggesting that the court need not posit such values is not an aid to our review.
      We note, as well, that the court could have fashioned its orders on many other relevant factors such as the evidence that the defendant had received past disbursements from his business interests, that there was some history of loans from corporation to corporation or the defendant’s residuary interest in a trust in which he had already received an advance and about which the court heard valuation testimony. But, because the court expressly based its order on its evaluation of the market value of the defendant’s shareholdings, we cannot rely on any of these alternate routes to an alimony order to uphold the order entered in this instance. In short, where the court has expressly stated the manner in which it arrived at its orders and the record reflects that the court’s analysis was flawed, the judgment may not be saved by reference to alternate analyses the court could have employed, but clearly did not.

       Indeed, the record reflects the court’s awareness of this deficiency in the plaintiffs proof.

       In fact, the plaintiff did not contend that she had established valuation of the defendant’s interests. She introduced real estate values, then financial statements to show mortgages and extra cash and then multiplied by the defendant’s percentage interest. The plaintiff never claimed this was a proper valuation but invited the court to make a just award. The plaintiff never said the court could arrive at a value by this mathematic formula but the court patently did so.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. SHARIEF T. NASHEED
    (AC 29661)
    Flynn, C. X, and Lavine and Foti, Js.

      Argued December 3, 2009
    officially released June 15, 2010

      Alice Osedach, assistant public defender, the appellant (defendant).

      David J. Smith, assistant state’s attorney, with whom, on the brief, was Michael L. Regan, 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

LAVINE, J.

The defendant, Sharief T. Nasheed, appeals from the judgment of conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and of being a persistent dangerous felony offender in violation of General Statutes (Rev. to 2007) § 53a-40 (a) (l). On appeal, the defendant claims that (1) the trial court improperly admitted testimonial evidence in violation of his state and federal constitutional rights, (2) there was insufficient evidence to support his conviction of being a persistent dangerous felony offender, (3) General Statutes (Rev. to 2007) § 53a-40 (h) is unconstitutionally vague and (4) the prosecutor committed reversible impropriety during the state’s closing argument to the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On November 13, 2007, the state, by way of a substitute information, charged the defendant with robbery in the first degree in violation of § 53a-134 (a) (4), larceny in the second degree in violation of § 53a-123 (a) (2) and assault in the third degree in violation of § 53a-61 (a) (1). The charges stemmed from the defendant’s alleged assault and robbery of the victim, Vinod Patel, as he left the grocery and convenience store he owned in Voluntown. The state subsequently filed apart B information, on December 10, 2007, which charged the defendant with being a persistent dangerous felony offender pursuant to § 53a-40 (a) (1).

Following the jury’s finding that he was guilty of the underlying robbery, larceny and assault charges, the defendant waived his right to a jury trial on the part B information and instead was tried before the court. The court found the defendant guilty of being a persistent dangerous felony offender. The court thereafter sentenced the defendant to a total effective term of forty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim on appeal is that the court improperly admitted testimonial evidence in violation of the defendant’s state and federal constitutional rights to confrontation. Specifically, he argues that testimony of Cochetta Thomas, his former probation officer, offered at the part B trial was testimonial hearsay that was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Because we conclude that the admission of this evidence was harmless beyond a reasonable doubt, we do not reach the question of whether the evidence was testimonial hearsay that was inadmissible under Crawford.

The following additional facts are necessary for the resolution of the defendant’s claim. At the part B trial, the state presented the testimony of Thomas. Thomas supervised the defendant’s probation that stemmed from his 1996 robbery convictions. The defendant was determined to be in need of “level one” probation supervision, which Thomas testified is a high level of supervision, as a result of some of his criminal behavior. Specifically, the defendant used a gun in his prior robberies, threatened one of the victims and pointed the gun at another victim, who heard the gun make a clicking noise as if it were going to be fired. While incarcerated, the defendant accumulated thirty-three disciplinary tickets for offenses including assault on an officer, fighting and affiliating with a security risk group. The defendant had tested positive for drugs four times between August, 2003, and October, 2004, and was later discharged from an alternative incarceration center after he tested positive in two additional drug screenings and refused to attend group meetings. The defendant cross-examined Thomas about the source of her information. Thomas stated that she obtained much of her information from a presentence investigation report, police reports and department of correction records.

The defendant also testified at his part B trial. He admitted that he had six prior convictions, including three robbery convictions, and that a gun had been used in each of the robberies. The defendant confirmed that certain photographs, which were entered into evidence as exhibits, pictured him pointing a gun at a person during the commission of one of the robberies. The defendant also acknowledged that he had been in a gang. Furthermore, he admitted that he had received at least thirty disciplinary tickets while he was incarcerated. During his most recent period of incarceration, in 2007, the defendant received a class A disciplinary ticket, the highest level, for throwing books from his cell toward the officers’ station. He also conceded that he had used and been arrested for possessing marijuana, in addition to using cocaine. The defendant further testified that while on probation, he had tested positive for marijuana and cocaine, and that opiates also were found in his urine. He also confirmed that he had been discharged from the drug counseling he received on probation because he failed to follow protocol.

The defendant contends that because Thomas’ testimony was based on police reports, a presentence investigation report from his prior convictions, as well as department of correction records, the testimony was testimonial hearsay, which violated his constitutional rights to confrontation. The defendant did not object to the admission of such testimony at trial, however, and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Under Golding, “a. defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). The record in this case is adequate for review, and the alleged violation is of a constitutional magnitude. We now consider whether the defendant may prevail on the merits of his claim.

Even if we were to assume, without deciding, that Thomas’ testimony, which was based on police reports, a presentence investigation report and department of correction records, rather than firsthand knowledge, violated the defendant’s constitutional right to confrontation, we conclude that any error was harmless beyond a reasonable doubt. “It is well established that a violation of the defendant’s right to confront witnesses is subject to harmless error analysis . . . and only if the error was not harmless may the defendant prevail on his Golding claim. . . . The state bears the burden of proving that the error is harmless beyond a reasonable doubt. . . . Whether such error is harmless in a particular case depends [on] a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 289 Conn. 598, 628, 960 A.2d 993 (2008).

Although Thomas was an important witness for the prosecution, nearly every detail to which she testified was corroborated by the defendant. He admitted to his past robbery convictions, use of a gun during those crimes, receipt of over thirty disciplinary tickets, use of and positive tests for marijuana and cocaine while on probation and his discharge from drug counseling. Furthermore, the defendant cross-examined Thomas, and the court was fully aware that much of her testimony was not based on firsthand knowledge.

Most importantly, in rendering its decision, the court stated that it found the defendant’s testimony to be most relevant to its determination of whether he was a persistent dangerous felony offender. The court proceeded to review the defendant’s testimony before concluding: “[T]here is more than enough evidence, even through [the defendant’s] own mouth, meaning testimony, that he had these three prior robbery convictions . . . and it is the court’s determination to make, which is the second essential element: has the state proven beyond a reasonable doubt that [the defendant’s] criminal conduct—I’m sorry, that [the defendant’s] personal history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration is necessary in this case in lieu of the sentence for robbery in the second degree that is provided for in General Statutes § 53a-35? It is the opinion of the court based upon all of the testimony heard here, the exhibits, [and] reasonable inferences [drawn] therefrom that [the defendant’s] criminal conduct indicates that extended incarceration will best serve the public interest, and that is based upon what I find that the state has proven beyond a reasonable doubt as I have just outlined concerning [the defendant’s] history and character and the nature and circumstances of his criminal conduct. And, therefore, the court finds [the defendant] guilty of the part B information of being a persistent dangerous felony offender.”

It cannot be said that Thomas’ testimony influenced the judgment of the court because the court clearly stated that the defendant’s testimony alone was sufficient to find him guilty beyond a reasonable doubt of being a persistent dangerous felony offender under § 53a-40. Because the state has proven that any constitutional error was harmless beyond a reasonable doubt, the defendant cannot prevail under Golding.

II

The defendant next claims that there was insufficient evidence to support his conviction of being a persistent dangerous felony offender. We disagree.

Prior to sentencing, the defendant made an oral motion for a judgment of acquittal as to his conviction of being a persistent dangerous felony offender. The defendant contended that there was insufficient evidence to prove that it would best serve the public interest for him to be incarcerated for an extended period of time. The court denied the defendant’s motion. He now renews this claim on appeal.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [finder of fact] if there is sufficient evidence to support [its] verdict. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .

“[F]or the purposes of sufficiency review ... we review the sufficiency of the evidence as the case was tried; in other words, we review the evidence in its improperly restricted state, impropriety notwithstanding. Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error. ... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Coccomo, 115 Conn. App. 384, 395, 972 A.2d 757, cert. granted on other grounds, 293 Conn. 909, 978 A.2d 1111 (2009).

Before a defendant can be sentenced under § 53a-40 (h), the defendant must first satisfy § 53a-40 (a) (1), which provides that a persistent dangerous felony offender is someone who has been “convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, or assault in the first degree, and . . . has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death . . . for any of the following crimes: [manslaughter, arson, kidnapping, robbery in the first or second degree or assault in the first degree] or an attempt to commit any of said crimes . . . .” General Statutes (Rev. to 2007) § 53a-40 (a) (1). There is no dispute that prior to the part B proceeding, the jury had found the defendant guilty of robbery in the first degree. The court also found that the defendant previously had been convicted of robbery in the second degree and sentenced to ten years imprisonment. These two findings satisfied the first requirement of the statute, which is that the defendant was a persistent dangerous felony offender. The evidence was sufficient to find that the defendant was a persistent dangerous felony offender in violation of § 53a-40 (a) (1).

There was also sufficient evidence to find that the defendant’s “history and character and the nature and circumstances of [his] criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest . . . .” General Statutes (Rev. to 2007) § 53a-40 (h). The defendant’s prior robbery conviction stemmed from the simultaneous robberies of two separate individuals. The court found that the defendant possessed a gun during the commission of those robberies and that there was evidence that he threatened at least one of the victims with his weapon. The court further found that the defendant had received numerous disciplinary tickets while he was incarcerated, for offenses including assaulting a correction officer, and that he had a long history of drug abuse, failed drug tests and other noncompliance with the terms of his probation. The evidence presented was sufficient to conclude, beyond a reasonable doubt, that the public interest would be best served by the defendant’s extended incarceration and lifetime supervision.

in

The defendant’s third claim on appeal is that § 53a-40 (h) is unconstitutionally vague, both as applied to him and on its face, and that his conviction under the statute violated his state and federal constitutional rights. Specifically, the defendant argues that.(l) § 53a-40 (h) failed to give him fair warning that the statute applied to him and (2) the statute permits arbitrary and discriminatory enforcement. We disagree.

The defendant failed to raisé his claim at trial and seeks to prevail pursuant to State v. Golding, supra, 213 Conn. 239-40. We will review his claim under Golding because the record is adequate, and a claim that a statute is unconstitutionally vague implicates the defendant’s fundamental due process right to fair warning. See State v. Coleman, 83 Conn. App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). We conclude, however, that there was no constitutional violation because the statute is not vague as applied to the circumstances of the present case.

The defendant first argues that § 53a-40 (h) failed to give him fair warning that the statute applied to him. He contends that a reasonable person in his position would not have anticipated that the statute would apply to his conduct. Based on the facts of this case, we disagree.

We begin by setting forth the relevant legal principles. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. ... A defendant whose conduct clearly comes within a statute’s unmistakable core of prohibited conduct may not raise a facial vagueness challenge to the statute. . . .

“[T]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute .... [0]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .” (Citations omitted; internal quotation marks omitted.) State v. Thomas W., 115 Conn. App. 467, 472-73, 974 A.2d 19, cert. granted on other grounds, 294 Conn. 911, 983 A.2d 276 (2009).

As discussed previously; see part II of this opinion; the defendant was a persistent dangerous felony offender in violation of § 53a-40 (a) (1). There can be no dispute that a person of ordinary intelligence would understand that someone in the defendant’s position would thus be subject to § 53a-40 (h).

The central question, then, is whether a person of ordinary intelligence would conclude that the defendant’s “history and character and the nature and circumstances of [his] criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest . . . .” General Statutes (Rev. to 2007) § 53a-40 (h). The defendant’s prior robbery conviction stemmed from the simultaneous robberies of two separate individuals. The defendant acknowledged that he possessed a gun during the commission of those robberies. There was evidence that pictured the defendant pointing a weapon at one of the victims. Both Thomas and the defendant testified that he had received numerous disciplinary tickets while he was incarcerated for offenses including assaulting a correction officer. Thomas also testified as to the defendant’s long history of drug abuse, failed drug tests and other noncompliance with the terms of his probation. The crime underlying that testimony was a violent assault and robbery. Although the defendant presented evidence of his employment history, gang renunciation and responsibility in raising his daughter, a person of ordinary intelligence would have little difficulty in concluding that the public interest would be best served by his extended incarceration and lifetime supervision.

In his second argument, the defendant challenges § 53a-40 (h) on its face, arguing that it permits arbitrary and discriminatory enforcement because “the plain language of the statute does not provide the trier of fact with any standards or guidance as to what history or type of character or as to what nature and circumstances of criminal conduct would give rise to an extended period of incarceration that would best serve the public interest.” “[I]n order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Bloom, 86 Conn. App. 463, 468, 861 A.2d 568 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1081 (2005). The defendant’s convictions bring him within the statute’s core of prohibited conduct, and the application of the statute to the defendant is constitutional. He may not prevail on a vagueness challenge to the facial validity of the statute. Based on the merits of the case, the constitutional violation does not clearly exist, and, thus, the defendant cannot succeed under Golding.

IV

The defendant’s final claim is that the prosecutor committed impropriety during rebuttal closing argument to the jury that is a ground for reversal. We disagree. But even if we assume that the claimed impropriety occurred, it did not deprive the defendant of his right to a fair trial.

The following facts, which the jury reasonably could have found, are relevant to the resolution of the defendant’s claim. On April 16, 2004, the victim was leaving the store he owned and operated in Voluntown. The victim had approximately $6000 in cash and $7000 worth of checks from his check cashing business on his person when he left the store. After he got into his car, someone came from behind the car and prevented him from closing his car door. The robber was wearing a black hat, which covered his entire face except for his eyes. The robber pointed a gun at the victim, demanded that the victim give him money and, when the victim said he did not have any money, hit the victim in his nose with the gun. The victim testified that the gun was silver but could not identify what type of gun it was. The robber found the bags with the money, took them and ran toward the church that was next to the convenience store. After dialing 911, the victim drove toward the church and saw a white car occupied by two people, no license plate and tinted windows leave the church. The victim pursued the car while still on the telephone with a state police trooper, but stopped following it at the trooper’s instruction.

Mark Stalder testified that he met the defendant when the defendant began dating Stalder’s cousin. In April, 2004, the defendant asked Stalder to take a ride with him in his white Plymouth with tinted windows. The defendant drove to the convenience store in Voluntown and told Stalder that he was going to rob it. The defendant told Stalder to park the car on the side of the church and wait for him. Approximately one hour later, the defendant returned to the car and told Stalder to drive away. As they were driving away, the defendant told Stalder that he had robbed the store.

Although he did not see the defendant with a silver revolver on the night of the robbery, Stalder testified that he had seen the defendant in possession of a silver revolver several times. At a later date, the defendant and Stalder’s cousin told Stalder that they needed to get rid of the gun. Stalder took the gun and threw it into Lake Brandegee, which borders New London and Waterford.

In June, 2004, the police obtained information about a weapon that was thrown into Lake Brandegee. Divers retrieved a silver revolver from the lake. After speaking with a witness who observed the gun being thrown into the lake, detectives determined that Stalder had discarded the gun. After talking to the detectives about the gun, Stalder provided the detectives with information regarding the robbery of the convenience store in Voluntown. On the basis of the information Stalder provided the detectives, they arrested Stalder and the defendant in connection with the Voluntown robbery.

During rebuttal closing argument, the prosecutor indicated that the victim had testified that “there was a revolver involved, and there was a black man involved”; “that he was struck by this person, a black male, who was carrying a silver revolver,” and that the victim had indicated that the perpetrator “was a black man with a silver revolver . . . .” The prosecutor also said that “Stalder indicates that the defendant had [the silver revolver] at some point during the incident.”

After the conclusion of closing arguments, the defendant objected to the state’s recitation of those facts, contending that the evidence did not support the facts as they were characterized. In overruling the objection, the court stated: “As both of you indicated, as I indicated before each of you spoke, and as I will obviously tell the jury during my instructions of law, again, it is for the jury to determine what are the facts. Any comments of counsel, as I have already indicated, are not evidence.

“I’ve told them that already, and again, I think and know and expect, based upon my instructions and my statements to the jury, that they understand and will understand, and I have told them on numerous occasions they will solely decide what are the facts. I don’t propose to give any corrective instructions.”

The court then instructed the jury as it told counsel it would. The court stated: “You are the sole judges of the facts. It is your responsibility and duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what the ultimate facts are. . . .

“I will remind you again that dining the course of the summations by counsel, each side presented to you what they believed to be certain evidence in the case. There, at least from what I heard, was certainly a dispute as to what certain witnesses said or didn’t say.

“What the lawyers said is not evidence and, again, I remind you, it is solely for you and you alone to decide the facts as to what witnesses said or did not say for you to decide ultimately from the evidence properly presented what are the facts in this case.” (Emphasis added.)

“The governing legal principles on prosecutorial impropriety are well established. [A] claim of prosecu-torial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). . . . [T]he touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in . . . Williams. ... In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. . . .

“If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in State v. Williams, supra, 204 Conn. 540, whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case. ... We address the alleged improprieties in turn.” (Citations omitted; internal quotation marks omitted.) State v. Jordan, 117 Conn. App. 160, 162-64, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009).

We are aware of case law that holds that “the prosecutor must confine the arguments to the evidence in the record.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 263, 780 A.2d 53 (2001), overruled in part on other grounds by State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004); see State v. Santiago, 103 Conn. App. 406, 424, 931 A.2d 298 (prosecutor may not comment unfairly on evidence in record), cert. denied, 284 Conn. 937, 937 A.2d 695 (2007). Assuming, but without concluding, that an impropriety in fact occurred, we will examine the effect that such an impropriety might have had on the defendant’s due process right to a fair trial. The first Williams factor considers the extent to which the impropriety was invited by defense conduct. In this case, although the claimed impropriety occurred during the state’s rebuttal closing argument, the improper comments were not invited by defense conduct.

With regard to the second, third and fourth Williams factors, the defendant concedes that the claimed improprieties were not frequent but argues that they were severe because they go to the heart of the trial—the identity of the perpetrator—and occurred during a critical part of the trial. The state contends that the comments were not severe because the central issue of the case was not the identity of the robber but, rather, the credibility of the witnesses. Although we accept the defendant’s characterization of the critical issue to be decided, we believe it is important to note that the credibility of Staider, who put the defendant at the scene of the crime with the silver revolver, was nearly as critical. Therefore, this factor does not weigh heavily in favor of the defendant.

The fifth Williams factor contemplates the effectiveness of the curative measures adopted by the court. Here, after the court denied the defendant’s objection tb the state’s cemments, it did not issue any curative instructions. The court’s instructions clearly reminded the jury that it is the sole finder of fact and that arguments made during summation are not facts. Understanding the significant concerns that arise when arguments improperly reference facts purportedly in the record, we cbnclude that this measure was sufficient to cure any alleged impropriety.

The final Williams factor, the strength of the state’s case, also favors the state. As discussed previously, although Staider testified that he had not seen the defendant with the gun on the night of the robbery, he said that he accompanied the defendant to the convenience store in the defendant’s white car with tinted windows, assisted in the defendant’s getaway and later threw the defendant’s silver revolver into Lake Brandegee. This testimony echoes the victim’s testimony that the robber had a silver gun and left the incident in a white car with tinted windows, which was occupied by two people. Even without the allegedly improper statements, the state’s case was strong enough that a jury could have found the defendant guilty beyond a reasonable doubt. We conclude that any impropriety that may have occurred did not “so [infect] the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 539.

The judgment is affirmed.

In this opinion the other judges concurred.

      The defendant’s birth name was Nestor Torruella, Jr. The substitute information charged him as “Sharief Nasheed [AKA. Nestor ToraeUa] . . . .” He legally changed his name to Sharief Talib Nasheed in 1999.

       General Statutes (Rev. to 2007) § 53a-40 provides in relevant part: “(a) A persistent dangerous felony offender is a person who: (1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, or assault in the first degree, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death . . . for any of the following crimes: (i) The crimes enumerated in subparagraph (A) of this subdivision or an attempt to commit any of said crimes . . . .”

       To the extent that the defendant also asserts a claim that his due process rights were violated under the Connecticut constitution, he has failed to provide an independent analysis of this issue under the state constitution. See State v. Banks, 117 Conn. App. 102, 106 n.1, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009); see also State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (providing analytical tools for state constitutional claims). Consequently, we deem the defendant to have abandoned any state constitutional claim.

       Several other witnesses testified at the part B trial, including a detective with the Stonington police department, a prior employer of the defendant, a state correctional counselor, the defendant’s fiancee, the mother of one of the defendant’s childhood Mends, a pastor at the church the defendant attended as a child, the mother of one of the defendant’s children and the defendant’s mother.

       To the extent that a part B trial embodies aspects of a “sentencing proceeding,” we note the existence of case law concluding that the principles underlying Crawford are not applicable. See Williams v. Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959) (“once the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court”); United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (“[b]oth the [United States] Supreme Court and [the United States Court of Appeals for the Second Circuit], however, have consistently held that the right of confrontation does not apply to the sentencing context and does not prohibit the consideration of hearsay testimony in sentencing proceedings”), cert. denied, 546 U.S. 1117, 126 S. Ct. 1086, 163 L. Ed. 2d 902 (2006); State v. Eric M., 79 Conn. App. 91, 111, 829 A.2d 439 (2003) (“As a general proposition, the court at sentencing is permitted to consider information not circumscribed by the rules of evidence. Specifically, the court is permitted to consider hearsay.”), aff'd, 271 Conn. 641, 858 A.2d 767 (2004).

       General Statutes (Rev. to 2007) § 53a-40 (h) provides in relevant part: “When any person has been found to be a persistent dangerous felony offender, and . . . such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, shall sentence such person to a term of imprisonment of not more than forty years and, if such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subdivision (2) of subsection (a) of this section, sentence such person to a term of imprisonment of not more than life.”

       The defendant cites State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), for the proposition that a defendant is entitled to a jury determination of whether the defendant’s “history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest . . . .” General Statutes (Rev. to 2007) § 53a-40 (h). Bell held that the previous construction of § 53a-40 (h) was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. When Bell was decided, § 53a-40 (h) provided in relevant part: “When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest . . . .” (Emphasis added.) General Statutes (Rev. to 2007) § 53a-40 (h). Bell does not support the defendant’s claim. As an initial matter, the Supreme Court excised that language, “the court is of the opinion that,” from the statute. State v. Bell, supra, 812-13. Second, Bell also clearly enunciates that “in those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite finding.” Id., 812. As noted, the defendant here waived his right to a jury trial under § 53a-40.


author: SULLIVAN, J.

text:
    RICHARD LEWIS v. COMMISSIONER OF CORRECTION
    (AC 29415)
    Flynn, C. J., and Robinson and Sullivan, Js.

    Argued October 26, 2009
    officially released June 15, 2010

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).

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

   Opinion

SULLIVAN, J.

The petitioner, Richard Lewis, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims on appeal that the court (1) improperly dismissed his petition when he failed to appear personally on the date scheduled for trial and (2) abused its discretion in denying his motion to open the judgment. We affirm the judgment of the habeas court.

I

The record contains the following relevant facts and procedural history. On February 24, 2005, in the Superior Court in the judicial district of New Haven, the petitioner pleaded guilty under the Alford doctrine to robbery in the second degree in violation of General Statutes § 53a-135. The petitioner was sentenced to seven years of incarceration, suspended after two and one-half years, and one year of probation, which would run concurrently with his probation for a prior conviction. On February 26, 2007, the petitioner filed his first amended petition for a writ of habeas corpus, claiming that his counsel had provided ineffective assistance in that he failed to assure that the petitioner’s guilty plea was knowing, intelligent and voluntary.

Trial was scheduled for ten o’clock in the morning on September 11, 2007, in the Superior Court in the judicial district of Tolland at Rockville. The petitioner, who had completed the incarceration portion of his sentence, appeared through counsel but did not appear personally at the scheduled date and time. The court recessed the proceedings to give the petitioner’s counsel the opportunity to contact the petitioner. The record reveals that the petitioner’s counsel was unable to reach the petitioner. The respondent, the commissioner of correction, then moved to dismiss with prejudice. The petitioner’s counsel did not object, did not request the opportunity to proceed with the case and did not request a continuance. Instead, he requested that the dismissal be without prejudice and that the petitioner be given the opportunity to move to open the judgment. The court ordered that the dismissal be with prejudice but allowed the petitioner to move to open the judgment for good cause shown for his absence at trial, as requested by counsel.

On October 26, 2007, the petitioner filed a motion to open the judgment, arguing that, due to being indigent, he had been unable to obtain transportation from New Haven to Rockville on the day of the scheduled trial and requesting that he be granted a hearing on the merits. No accompanying affidavits were submitted. On October 29, 2007, the court denied the motion to open and, on November 9, 2007, granted the petitioner’s petition for certification to appeal. The petitioner instituted the present appeal.

I

The petitioner challenges the court’s judgment dismissing his habeas petition, claiming that such dismissal is reversible error, violated his constitutional rights and requires the exercise of this court’s supervisory authority to reverse the habeas court’s judgment. The petitioner argues that because no rule of practice provides for a dismissal and there was no court order requiring him to appear at the habeas trial, the dismissal was improper and requires reversal. The petitioner has requested plain error review of his unpreserved claims pursuant to Practice Book § 60-5. We disagree with the petitioner’s claims.

The following additional facts are relevant to our resolution of the petitioner’s appeal. On the date scheduled for trial, counsel for the petitioner represented to the court that he could not proceed with all parts of the petition at that time. Counsel also stated that his client knew the time, date and location of the scheduled trial. He stipulated that he did not know if a valid reason existed for the petitioner’s absence.

The petitioner admits in his appellate brief that the arguments made on appeal were not presented to the habeas court. As we long have held, “[t]he . . . failure to raise [an] issue at trial deprive [s] the trial court of the opportunity to address it. [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Rosenblit v. Laschever, 115 Conn. App. 282, 287 n.4, 972 A.2d 736 (2009).

Despite our reluctance to review unpreserved claims, the plain error doctrine exists as “an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons ofpolicy.” (Internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 521, 535 n.13, 980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). “Success on such a claim is rare. Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Ortiz, 71 Conn. App. 865, 871, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002).

We cannot conclude that under the facts and circumstances of the present case, the court committed plain error in dismissing the habeas petition. Even if the petitioner is correct in asserting the general rule in civil cases that litigants may appear through counsel, the dismissal under the circumstances here, in which counsel did not request a continuance and indicated that he could not proceed on all parts of the petition, does not constitute plain error. Although the petitioner asks us to decide the question in his favor as an exercise of our supervisory authority, due to what in his view amounts to the regular practice of the habeas court to dismiss petitions when the petitioner fails to appear for trial, we decline to do so.

n

The petitioner also claims that the court improperly denied his motion to open the judgment dismissing his petition for a writ of habeas corpus. It is the burden of the appellant to provide a record from which we can review the court’s decision. No memorandum of decision was filed by the court, and the petitioner has not provided us with any transcript. We therefore are unable to review the petitioner’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       On March 28, 2007, the court sent notice to the petitioner, informing him of the date and time of the habeas trial and that “[p]arties must be prepared to go forward. Failure to appear may result in judgment of dismissal or default. Motions for continuance must be filed in writing at least [three] business days before the scheduled event and will only be granted under exceptional circumstances.”

       At the time this habeas petition was filed, the commissioner of correction was Theresa C. Lantz.

       The petition for certification to appeal stated that the appeal was from the October 29, 2007 denial of the motion to open. The petitioner’s appeal form referenced the “denial of [the] petition for [a] writ of habeas corpus” and indicated a judgment date of September 11,2007. The petitioner’s preliminary statement of issues referred to the denial of the motion to open. In James L. v. Commissioner of Correction, 245 Conn. 132, 138, 712 A.2d 947 (1998), our Supreme Court concluded that “at least in the absence of demonstrable prejudice, the legislature did not intend the terms of the habeas court’s grant of certification to be a limitation on the specific issues subject to appellate review.” In this case, the respondent has not argued that she suffered any prejudice due to the discrepancy between the petition for certification to appeal and the issues raised in the petitioner’s appeal.
      We further note that the appeal from the dismissal was filed late but that the respondent acknowledges that she waived any objection to the late appeal by failing to move to dismiss within the prescribed time frame under Practice Book § 66-8.

       We do not endorse the procedure followed by the parties. The proper procedure would have been to request certification to appeal to challenge both the dismissal of the petition and the denial of the motion to open, and subsequently indicate both decisions on the appeal form.

       The respondent argues that the denial of the motion to open is not properly before this court because the petitioner’s appeal form indicates that the decision appealed from is the habeas court’s decision of September 11,2007, which was the date of the dismissal. See footnote 4 of this opinion. In Rocque v. DeMilo & Co., 85 Conn. App. 512, 526, 857 A.2d 976 (2004), we held that we do not have jurisdiction when a party, citing one decision on its appeal form, seeks review of another decision that could have otherwise been challenged on appeal and such decision is not indicated on the appeal form. We have also long held that technical defects in the appeal form do not constitute jurisdictional defects. Pritchard v. Pritchard, 281 Conn. 262, 275, 914 A.2d 1025 (2007). In the present case, the petitioner, although citing the dismissal on the appeal form, did indicate the motion to open in both the petition for certification to appeal and his preliminary statement of issues. We need not decide, however, whether the defect is technical or substantive because the claim is unreviewable due to the inadequate record.