author: GRUENDEL, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE v. ELIZABETH TORRES ET AL.
    (AC 35838)
    Gruendel, Beach and Alvord, Js.
    Argued January 21
    officially released March 25, 2014

      Laura Pascóle Zaino, with whom were Brian D. Rich, and, on the brief, Peter R. Meggers, for the appellant (plaintiff).
   Opinion

GRUENDEL, J.

The plaintiff, Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-1, appeals from the judgment of the trial court granting the motion to dismiss of the self-represented defendant, Elizabeth Torres. On appeal, the plaintiff claims that the court improperly found that the plaintiff failed to demonstrate that it had standing, and subsequently erred in granting the defendant’s motion to dismiss. We agree, and therefore, reverse the judgment of the trial court.

“The procedural posture of this case governs our recitation of the facts underlying the appeal. When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a maimer most favorable to the pleader. . . . Further, in addition to admitting all facts well pleaded, the motion to dismiss invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Citation omitted; internal quotation marks omitted.) CitiMortgage, Inc. v. Gaudiano, 142 Conn. App. 440, 441-42, 68 A.3d 101, cert. denied, 310 Conn. 902, 75 A.3d 29 (2013).

This appeal concerns real property owned by the defendant and known as 60 Whiting Road in East Hartford (property). On October 25, 2005, the defendant executed a promissory note (note) in favor of Long Beach Mortgage Company in the principal amount of $144,000. That note was secured by a mortgage deed on the property that the defendant also executed on. October 25, 2005, to Long Beach Mortgage Company.

The mortgage and the note were later assigned to the plaintiff, who initiated a foreclosure action on January 5, 2009, alleging that it was the holder of such note and mortgage, which were both in default by virtue of nonpayment. The plaintiff also filed a motion for judgment of strict foreclosure in June, 2010, but the motion was continued and never adjudicated. On November 19, 2012, the defendant moved to dismiss the plaintiffs complaint, arguing, inter alia: “Remove for the following: pursuant to federal question, subject matter, diversity of citizenship, lack of standing, lack of jurisdiction, failure to produce allonge instrument, deed, note, mortgage, original contract without material alteration.” The plaintiff thereafter filed a substantive objection to the defendant’s motion, arguing that she failed to set forth a sufficient legal argument as to why the court should grant her motion to dismiss.

The parties appeared before the court on April 1, 2013, for argument on the defendant’s motion to dismiss. The court first addressed whether the plaintiff had standing to bring a foreclosure action against the defendant. Although the plaintiff presented a copy of the note and mortgage, it did not produce the original documents to the court. The court then continued the case until April 29, 2013, to allow the plaintiff to bring such documents in order to “prove that it was . . . the owner of the debt and holder of the note prior to the commencement of the suit.”

On April 29, 2013, the parties again appeared before the court and the plaintiffs counsel provided the original note and mortgage to the court. The defendant objected, arguing that the party on the note was Long Beach Mortgage Company, not the plaintiff bank, to which the plaintiff responded that the mortgage was ■assigned to it as trustee, and provided the supporting assignment document as proof. The court then stated: “The record I have in front of me says Long Beach has it, so I need some evidence . . . [of] how it got to the plaintiff in this case . . . .” The plaintiffs counsel explained that “the last time we were in court about a month ago for this very same motion to dismiss, Your Honor requested that I show [the defendant] a copy of the note, mortgage and any relative assignments. I brought that with me today in original form. I did not prepare to bring any agreements between the banks. I’m willing to . . . obtain them if I could have a week . . . .’’At that time, the court granted the defendant’s motion to dismiss, stating: “I need to see how [the plaintiff] has standing to pursue this and I do have the note, but the note is made out to a different party. I need to see the chain . . . the documents that show how it got into the hands of the plaintiff . ...” In May, 2013, the plaintiff filed a motion to reargue the granting of the motion to dismiss. That motion was denied by the court, and this appeal followed.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [plaintiff] cannot as a matter of law and fact state a cause of action that should be heard by the court .... [It] tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) In re Riana M., 134 Conn. App. 382, 387-88, 38 A.3d 130 (2012). “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § [10-30] (a).” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 63, 946 A.2d 862 (2008).

Our standard of review is well established. “[W]here legal conclusions of the [trial] court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. . . . Thus, our review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” (Citation omitted; internal quotation marks omitted.) Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 405, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).

The plaintiff claims that the court improperly granted the defendant’s motion to dismiss. It argues that it has standing to bring this foreclosure action because it alleged in its complaint that it is the holder of the note and the mortgage. The plaintiff therefore concludes that, because the trial court must take the facts to be those alleged in the complaint, it should have denied the defendant’s motion to dismiss. We agree.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Citation omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 310 Conn. 119, 125, 74 A.3d 1225 (2013).

“Several general principles concerning mortgage foreclosure procedure also guide our analysis. ‘[Standing to enforce [a] promissory note is [established] by the provisions of the Uniform Commercial Code .... [See] General Statutes § 42a-1-101 et seq. Under [the Uniform Commercial Code], only a “holder” of an instrument or someone who has the rights of a holder is entitled to enforce the instrument. General Statutes § 42a-3-301. The “holder” is the person or entity in possession of the instrument if the instrument is payable to bearer. General Statutes § 42a-l-201 (b) (21) (A). When an instrument is endorsed in blank, it “becomes payable to bearer and may be negotiated by transfer of possession alone . . . .” General Statutes § 42a-3-205 (b).’ ” (Footnotes omitted.) Equity One, Inc. v. Shivers, supra, 310 Conn. 126. “In addition, General Statutes § 49-17 allows the holder of a note to foreclose on real property even if the mortgage has not been assigned to him. See, e.g., RMS Residential Properties, LLC v. Miller, [303 Conn. 224, 230, 32 A.3d 307 (2011)] ([o]ur legislature, by adopting § 49-17, created a statutory right for the rightful owner of a note to foreclose on real property regardless of whether the mortgage has been assigned to him); Chase Home Finance, LLC v. Fequiere, [119 Conn. App. 570, 576, 989 A.2d 606] (§ 49-17 codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage . . .), [cert. denied, 295 Conn. 922, 991 A.2d 564 (2010)]. This court also has recently determined that a loan servicer for the owner of legal title to a note has standing in its own right to foreclose on the real property securing the note. J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 311, 317, 71 A.3d 492 (2013).” (Footnote omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, supra, 127. Furthermore, there is a rebuttable presumption that the holder of a note is the owner of the debt. RMS Residential Properties, LLC v. Miller, supra, 231-32.

Based on the standard with which a trial court must rule on a motion to dismiss and our Supreme Court’s delineation of the standing requirements in a foreclosure action, it is clear that the court erroneously granted the defendant’s motion to dismiss for the plaintiffs failure to demonstrate standing. In the complaint, the plaintiff alleged that it was the holder of the note and the mortgage that were assigned to it from Long Beach Mortgage Company. As the plaintiff explained in its memorandum in support of its motion to reargue the granting of the motion to dismiss, “Long Beach Mortgage Company endorsed the note in blank. . . . Thus, the note is payable to bearer and the plaintiff is the lawful holder. . . . This note was presented to and reviewed by the court and defendant. . . . Despite the plaintiffs statements that as holder of the note it has standing to bring the instant action, and absent any facts or evidence set forth by the defendant at argument or in the defendant’s motion to dismiss, the court dismissed the action for lack of standing.” (Citations omitted.) Because the defendant did not offer any evidence to call the plaintiffs allegations into question, she failed to rebut the presumption that the plaintiff, as the holder of the note, is the owner of the debt. See RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 231-32. Based on the facts alleged in the plaintiffs complaint and the documents presented to the court, we conclude that the plaintiff has raised the presumption of standing sufficient to overcome a motion to dismiss. The court, therefore, erred in granting the defendant’s motion to dismiss.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to dismiss and for further proceedings according to law.

In this opinion the other judges concurred.

       The defendant EMC Mortgage Corporation did not appear before the trial court and is not a party to this appeal. In this opinion, we refer to Elizabeth Torres as the defendant.

       The plaintiff also claims that the court erred in (1) granting aprocedurally deficient motion to dismiss, (2) failing to hold an evidentiary hearing before dismissing its action for lack of standing, (3) denying its request for a brief continuance to allow the plaintiff to produce the chain of agreements by which it acquired the note and mortgage, and (4) denying the plaintiffs motion to reargue the judgment of dismissal. Our conclusion that the court erred in finding that the plaintiff failed to demonstrate standing makes it unnecessary to address these other claims. Accordingly, we set forth only those facts that are necessary to the resolution of the plaintiffs standing claim.

       The court did not hold an evidentiary hearing, but rather permitted the self-represented defendant to argue on her motion.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICARDO MONTANEZ
    (AC 35264)
    Gruendel, Sheldon and Pellegrino, Js.

      Argued January 16
    officially released March 25, 2014

      Darcy McGraw, assistant public defender, for the appellant (defendant).

      Adam E. Mattel, deputy assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Ricardo Montanez, appeals from the judgment of the trial court dismissing his motion to revise a judgment mittimus. On appeal, the defendant claims that the court erred in finding that it lacked subject matter jurisdiction over the motion. We affirm the judgment of the trial court.

The facts and procedural history are not in dispute. The defendant was charged with the sale of a narcotic substance in violation of General Statutes § 21a-277 (a) (drug case). In July, 1986, the defendant pleaded guilty to that charge. He posted bond and, as a result, he was not incarcerated prior to sentencing. Thereafter, in August, 1986, when the defendant failed to appear for sentencing on his drug case, he was ordered rearrested on the drug charge and was further charged with failure to appear in the first degree in violation of General Statutes § 53a-172 (a).

In November, 1986, before the defendant was rearrested and returned to custody, a second unrelated warrant was issued for his arrest on the charge of murder in violation of General Statutes § 53a-54a (a). The defendant initially fled to Puerto Rico, but in January, 1987, he was finally recaptured, extradited to the United States, and returned to state custody.

In September, 1987, the defendant pleaded guilty to the charge of failure to appear in the first degree. Thereafter, in October, 1987, he was sentenced by the court to consecutive terms of four years incarceration on the drug charge and one year incarceration on the failure to appear charge, for a total effective sentence of five years to serve. Subsequently, in May, 1988, a jury found the defendant guilty of murder, for which he was later sentenced, in July, 1988, to a term of forty years incarceration. The court ordered the defendant’s murder sentence to run concurrently with his previously imposed sentences on the drug charge and the failure to appear charge, but the court was silent as to whether it intended him to receive presentence jail credit for the time he spent in pretrial custody on the murder charge.

The Department of Correction (department) initially deducted 526 days from the defendant’s murder sentence to account for the time he had spent in pretrial custody from January 29, 1987, the date he returned to state custody, and July 8, 1988, the date on which he was sentenced for murder. Twenty-two years later, however, in a letter dated July 15, 2010, the department wrote to the defendant to inform him: “In December, 2004 [our] Supreme Court ruled on three court cases; Harris v. Commissioner of Correction, [271 Conn. 808, 860 A.2d 715 (2004)]; Hunter v. Commissioner of Correction, [271 Conn. 856, 860 A.2d 700 (2004)]; and Cox v. Commissioner of [Correction, 271 Conn. 844, 860 A.2d 708 (2004)]. In these cases the defendants wanted presentence credits to apply to concurrent sentences imposed on different days. There is language in the Cox decision that the statute that governs presentence credit, [General Statutes §] 18-98d, does not permit the [department] to transfer credits from one sentence to another. . . . For those inmates that had their presen-tence credits transferred to another sentence received on a different day, the presentence credits had to be removed and put back on the first sentence they were earned.” The department then recalculated the defendant’s murder sentence and added back the 526 days previously credited to him as presentence jail credit.

In August, 2012, the defendant filed a motion to revise his judgment mittimus. He claimed that his minder sentence was improper because it had been recalculated to require him to serve an extra 526 days in jail “due to the way in which the [department] applies the credit to the defendant’s two cases.” The state filed an objection to the motion, arguing that the criminal trial court no longer possessed jurisdiction. A hearing followed and, in August, 2013, the court dismissed the motion for lack of jurisdiction over the defendant’s case for the purpose of modifying his sentence. In its memorandum of decision, the court stated in relevant part: “Absent some express authority that supplies continued jurisdiction, a trial court loses jurisdiction over a case when the defendant is committed to the custody of the [department] and begins serving the sentence. State v. Luzietti, 230 Conn. 427, 431-32, [646 A.2d 85] (1994); see also State v. Das, 291 Conn. 356, 361-62, [968 A. 2d 367] (2009).

“The [defendant] cites to no authority that would provide the court with jurisdiction. . . . [Cjounsel for the defendant suggested that the motion should be construed as a motion to correct [an] illegal sentence filed pursuant to Practice Book § 43-22. In support of this position, the defense relies on Orcutt v. Commissioner of Correction, 284 Conn. 724, [937 A.2d 656] (2007). In Orcutt, however, the defendant was claiming that his sentence violated his right to be sentenced in accordance with the term of his plea agreement as mandated by Santobello v. New York, 404 U.S. 257, [92 S. Ct. 495, 30 L. Ed. 2d 427] (1971). Specifically, [he claimed] that the sentence as calculated by the [department] differed substantially from the sentence agreed to by the defendant, the prosecutor and the court. Orcutt v. Commissioner of Correction, supra, 729.

“Unlike Orcutt, the present motion is based not on a claimed violation of a plea agreement but rather on notions of fairness and justice. Stated differently, it is an equitable appeal rather than a legal one. The court lacks any general equitable authority to open a criminal judgment after the defendant has begun serving the sentence. State v. Alegrand, 130 Conn. App. 652, [23 A.3d 1250] (2011).”

The defendant then filed a motion to reconsider the court’s ruling on his motion to revise the judgment mittimus, relying on the trial court decision in State v. Torres, Superior Court, judicial district of Hartford, Docket No. CR-94-0148154 (April 12, 2011) (Gold, J.). The court granted the motion for reconsideration, but denied the relief requested, reasoning as follows: “This court has considered the applicability of State v. Torres, [supra, Superior Court, Docket No. CR-94-0148154] to the defendant’s motion. Although both cases involve claims for jail credit, this court finds Torres distinguishable for both legal and factual reasons. Legally, the basis of the court’s assertion of jurisdiction in Torres was a claimed violation of a plea agreement. Judge Gold correctly found that such a claim may be raised in a motion to correct [an] illegal sentence filed pursuant to Practice Book § 43-22. State v. McNellis, 15 Conn. App. 416, 444, [546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441] (1988). Factually, the defendant in Torres first went to trial and later worked out a plea agreement for concurrent time. In the present case, the defendant first pled to the drug case for a five year agreed sentence and thereafter went to trial on the murder case. There was never a plea agreement on the murder case nor (as was the situation in Torres') a global plea agreement covering both cases.” This appeal followed.

“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007). “If it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003). “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, supra, 802.

Our Supreme Court “has held that the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act.” Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). Practice Book § 43-22 is a narrow exception to this general rule. It provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” Practice Book § 43-22.

“Connecticut has recognized two types of circumstances in which the [sentencing] court has jurisdiction to review a claimed illegal sentence. The first of those is when the sentence itself is illegal, namely, when the sentence either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . The other circumstance in which a claimed illegal sentence may be reviewed is that in which the sentence is within the relevant statutory limits . . . but [is] imposed in a way which violates [the] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Internal quotation marks omitted.) State v. Casiano, 282 Conn. 614, 624 n.14, 922 A.2d 1065 (2007).

The United States Supreme Court in Santobello v. New York, supra, 404 U.S. 257, first described when a defendant may invoke a provision such as Practice Book § 43-22 to challenge a sentence imposed in an illegal manner for an alleged violation of his right that the government keep its plea agreement promises. The court in Santobello held that “the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, supra, 262.

The defendant claims that the court erred in finding that it lacked subject matter jurisdiction over his motion to revise the judgment mittimus because that motion properly raised a claim that his sentence had been imposed upon him in violation of the principles enunciated in Santobello. He argues that, at the time his murder sentence was imposed, he expected, and the sentencing judge understood and intended, that he would be given presentence jail credit on that sentence. He thus concludes that the court has subject matter jurisdiction to consider whether his sentence had been imposed upon him in an illegal manner. The state, in contrast, argues that Santobello does not apply to the present case because the prosecution did not promise the defendant anything during or after his murder trial on which it has failed to deliver. We agree with the state.

A Santobello claim provides a remedy when the terms of a valid and enforceable plea agreement have not been upheld. Santobello, and the principles derived from it, are thus inapplicable to the present case. The defendant did not enter into a plea agreement on his murder charge but decided, instead, to go to trial. Rather, he pleaded guilty only on the drug and failure to appear charges, which occurred prior to his murder trial and sentencing. In addition, the record does not reveal that the state made any promises to the defendant regarding the department’s application of presentence confinement credit to his murder sentence. Furthermore, unlike the defendant in the present case, who filed a motion to revise a judgment mittimus after the trilogy of Supreme Court cases changing the way presentence credits may be administered, the defendant in Santobello objected to his sentence at his sentencing hearing and later appealed from his conviction. Id., 259. Because the circumstances in Santobello stand in stark contrast to the present circumstances, we conclude, as did the trial court, that Santobello does not apply. We also agree with the reasoned analysis of the trial court in finding Orcutt and Torres similarly distinguishable and inapplicable to the present case.

The defendant’s motion is therefore not reviewable because it does not make a colorable claim under the rule of Santobello. Furthermore, because the defendant did not set forth any alternative basis to invoke the court’s subject matter jurisdiction over his sentence, the present motion cannot be considered as the correction of an illegal sentence or a sentence imposed in an illegal manner. See Crawford v. Commissioner of Correction, 294 Conn. 165, 199 n.21, 982 A.2d 620 (2009) (“[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence [under Practice Book § 43-22] after the sentence has been executed, the sentencing proceeding . . . must be the subject of the attack” [internal quotation marks omitted]). Our general rule that the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, then, is dispositive. Cobham v. Commissioner of Correction, supra, 258 Conn. 37. The court, therefore, properly dismissed the case due to a lack of subject matter jurisdiction over the defendant’s motion to, revise the judgment mittimus.

The judgment is affirmed.

In this opinion the other judges concurred.

       As our Supreme Court has explained, a judgment mittimus is “merely ... a clerical document by virtue of which a person is transported to and rightly held in prison.” Commissioner of Correction v. Gordon, 228 Conn. 384, 392, 636 A.2d 799 (1994).

       The defendant also claims that the court should reach the merits of his motion to revise the judgment mittimus and correct his sentence to reflect what he claims to have been the original agreement of the parties and the clear intent of the sentencing judge. Our resolution of the first claim makes it unnecessary for us to reach the second claim.

       The defendant also makes the same arguments that he made to the trial court, namely, that Orcutt v. Commissioner of Correction, supra, 284 Conn. 724, and State v. Torres, supra, Superior Court, Docket No. CR-94-0148154, are applicable and controlling in this matter.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. WINSTON LEEBERT GRANT
    (AC 35982)
    Beach, Bear and West, Js.

      Argued November 19, 2013—
    officially released March 25, 2014

      Richard W. Callahan, assigned counsel, for the appellant (defendant).

      Adam E. Mattei, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Winston Leebert Grant, appeals from the judgment of conviction rendered after a jury trial of one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), and one count of murder, both as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a (a), and as a coconspirator pursuant to the Pinkerton doctrine. On appeal, the defendant claims that (1) there was insufficient evidence to support the jury’s verdict for the charges of conspiracy to commit murder and murder as an accessory; (2) the court improperly instructed the jury on the charge of conspiracy to commit murder; and (3) the court abused its discretion when it denied his motion for a mistrial predicated on jury misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Maurice Johnson, was a drug dealer who sold marijuana. On the evening of January 31,2008, the victim was with his girlfriend, Michelle Rose, at his apartment in Bridgeport when he received a cell phone call regarding a drug deal with the defendant. At approximately 10 p.m., Rose accompanied the victim to the Legend’s Social Club in Bridgeport, where the victim intended to sell marijuana to the defendant.

When he arrived in the club parking lot, the victim handed the defendant a bag of marijuana and drove away without being paid. Later that evening, after receiving a telephone call from the defendant, the victim and Rose returned to the club parking lot to accept payment. The defendant backed into a parking space adjacent to the front passenger’s side of the victim’s truck, where Rose was seated. Rose informed the victim that the defendant was beckoning him to the defendant’s car. The victim entered the passenger’s seat of the defendant’s car, whereupon Rose saw a dark figure rise up from the defendant’s backseat and grab the victim around his neck. The hidden assailant was holding a gun next to the victim’s neck. During the attack, the defendant was staring at Rose and rocking back and forth in effort to obscure her view of the victim. Rose could see the victim struggling, and when she heard him scream, she got into the driver’s seat of the victim’s truck and drove off to get help. She found a police officer a few streets away and informed him that the victim was being strangled in the club parking lot. The officer reported the incident to dispatch at 11:33 p.m.

When the police arrived at the club parking lot at 11:36 p.m., they found the victim lying in apool of blood with a gunshot wound to his right eye and another gunshot wound to his right cheek. Two emergency medical technicians arrived on the scene and determined that the victim was dead. Rose gave a statement to the police, and a warrant was issued for the defendant’s arrest. The defendant was arrested in New York on February 5, 2008. He told the arresting officer that he went to New York because he heard that the police were looking for him in connection with the victim’s murder. Following his arrest, Rose identified the defendant in a police photographic array.

The defendant was charged by way of a substitute information with one count of conspiracy to commit murder and one count of murder. The jury found the defendant guilty of conspiracy to commit murder, and of murder as an accessory and as a coconspirator pursuant to the Pinkerton doctrine. The court accepted the verdict and sentenced the defendant to twenty years incarceration for conspiracy to commit murder and forty-five years incarceration for murder. The court further ordered that the sentences run concurrently, for a total effective sentence of forty-five years incarceration. This appeal followed. Additional facts will be set forth as they pertain to each claim.

I

The defendant first claims that there was insufficient evidence to support the jury’s verdict on the charges of conspiracy to commit murder and murder as an accessory. We disagree.

“In reviewing a sufficiency of the evidence claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . .

“Additionally, the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, [t]he trier of fact may credit part of a witness’ testimony and reject other parts. . . . [W]e must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude .... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 646-48, 11 A.3d 663 (2011).

A

First, we determine whether the jury’s guilty verdict on the charge of conspiracy to commit murder was supported by sufficient evidence. We conclude that the evidence was sufficient to support a finding beyond a reasonable doubt that the defendant was guilty of conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a).

“To establish the crime of conspiracy [to commit murder, the state must show] that an agreement was made between two or more persons to engage in conduct constituting [the crime of murder] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement [to commit murder], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspira-tors and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Citation omitted; internal quotation marks omitted.) State v. Green, 62 Conn. App. 217, 223-24, 774 A.2d 167 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002); see also State v. Perez, 147 Conn. App. 53, 80-81, 80 A.3d 103 (2013).

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found by inference that the defendant committed the crime of conspiracy to commit murder. The evidence demonstrates that he transported the hidden, gun-wielding assailant to a scheduled meeting with the victim and beckoned the victim into the car where the assailant lay in wait. This evidence of luring the victim to an armed ambush was sufficient to establish that the defendant agreed to cause the death of the victim and that he took an overt act in furtherance thereof. See State v. Rosado, 134 Conn. App. 505, 511-12, 39 A.3d 1156 (evidence that defendant planned victim’s murder and acted as lookout while he watched murder occur was sufficient to support conviction of conspiracy to commit murder), cert. denied, 305 Conn. 905, 44 A.3d 181 (2012); State v. Lopez, 52 Conn. App. 176, 186, 726 A.2d 620 (luring victim into building where assault took place constitutes overt act in furtherance of conspiracy), cert. denied, 248 Conn. 917, 734 A.2d 568 (1999).

Additionally, the state presented evidence that, when the assailant began to strangle the victim, the defendant stared at Rose and moved from side to side in an effort to obscure her view. The defendant’s failure to intervene to assist the victim during the assault further supports the jury’s finding of conspiracy to commit murder. See State v. Rosado, supra, 134 Conn. App. 511 (“conspiracy . . . may be inferred from [the defendant’s] presence at critical stages of the conspiracy that could not be explained by happenstance” [internal quotation marks omitted]).

Accordingly, we conclude that there was sufficient evidence to support the jury’s finding beyond a reasonable doubt that the defendant was guilty of conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a).

B

We next consider the defendant’s claim that there was insufficient evidence to support his conviction of the crime of murder as an accessory. We do not agree.

“The statutory provision governing accessory liability, General Statutes § 53a-8, provides in relevant part that [a] person, acting with the mental state required for the commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender. We have previously stated that a conviction under § 53a-8 requires [the state to prove the defendant’s] dual intent . . . [first] that the accessory have the intent to aid the principal and [second] that in so aiding he intend to commit the offense with which he is charged. . . .

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [B]ecause intent to cause the death of a person is an element of the crime . . . that intent must be proven beyond a reasonable doubt. .... Furthermore, [i]ntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . Thus, to convict the defendant of murder as an accessory, the jury had to conclude that the defendant had the intent to aid [the principal] in the crime and that he had the intent to commit the crime itself.” (Citations omitted; internal quotation marks omitted.) State v. Green, supra, 62 Conn. App. 225-26.

There is a plethora of evidence from which the jury reasonably could have inferred the defendant’s intent to murder the victim. First, the evidence cited in part IA of this opinion with respect to the defendant’s conviction of conspiracy to commit murder supports the jury’s determination that the defendant intended to aid the principal in murdering the victim. Namely, the defendant transported an armed assailant to his meeting with the victim, lured the victim into his car, and failed to intervene when the assailant began to strangle the victim while holding a gun to his neck. See State v. Grant, 219 Conn. 596, 603-604, 594 A.2d 459 (1991) (evidence that defendant helped transport two assailants to crime scene and remained calm after murder of victim was sufficient to support jury’s inference that defendant intended to murder victim). Second, the evidence in this case also supports the jury’s determination that the defendant intended to murder the victim, in light of the axiom that an individual intends the natural consequences of his or her voluntary conduct. See State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991). Here, the jury reasonably could have concluded that the defendant intended to kill the victim because death is a natural consequence of luring an individual into an armed ambush.

Furthermore, the jury reasonably could have inferred the defendant’s intent to commit murder from evidence of the defendant’s consciousness of guilt. The defendant admitted that he fled to New York when he learned that the police were looking for him in connection with the victim’s murder. “[F]light, when unexplained, tends to prove a consciousness of guilt . . . .” State v. Scott, 270 Conn. 92, 104-105, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005). In turn, “consciousness of guilt evidence [is] part of the evidence from which a jury may draw an inference of an intent to kill.” (Internal quotation marks omitted.) State v. Otto, 305 Conn. 51, 73, 43 A.3d 629 (2012).

Therefore, we conclude that there was sufficient evidence supporting a finding beyond a reasonable doubt that the defendant was guilty of murder as an accessory in violation of §§ 53a-8 and 53a-54a (a).

II

Next, the defendant claims that he is entitled to a new trial because the court improperly instructed the jury on the “agreement” element of the charge of conspiracy to commit murder, thereby violating his constitutional right to a fair trial. In particular, he argues that the court’s isolated instruction that “[i]t is sufficient to show that the parties knowingly engaged in a mutual planto do a criminal act”; (emphasis added); improperly led the jury to believe that evidence of the defendant’s mere knowledge that he was participating in a plan to commit a crime satisfies the agreement element of conspiracy, rather than evidence of the defendant’s specific intent to commit murder and to participate in an agreement in furtherance thereof. We are not persuaded.

As a threshold matter, the defendant concedes that he failed to preserve this claim on appeal, but nevertheless seeks reversal pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate and the claim is of constitutional magnitude, we will afford it review.

The following additional facts and procedural history are relevant to our disposition of this claim. Prior to charging the jury on the crimes set forth in the information, the court instructed it on the concept of specific intent, stating: “A person acts intentionally with respect to a result when his conscious objective is to cause such result. This definition is used with specific intent crimes. With a specific intent crime, the state must prove beyond a reasonable doubt that the defendant intended the result.”

Thereafter, the court read aloud the statutory definition of conspiracy and farther stated that “[t]o constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt: One, that there was an agreement between the defendant and one or more persons to engage in conduct constituting the crime of murder. Two, that there was an overt act in furtherance of the subject of the agreement by any one of those persons. And, three, the defendant specifically intended to commit the crime of murder. . . . The state must prove beyond a reasonable doubt that the defendant caused the death of the victim with a specific intent to cause the death. ” (Emphasis added.)

Subsequently, the court instructed the jury on the agreement element of the conspiracy charge, stating, in pertinent part, that u[i]t is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act. . . . The mere knowledge, acquiescence, or approval of the object of the agreement without cooperation or agreement to cooperate, however, is not sufficient to make someone a party to a conspiracy to commit a criminal act. Mere presence at the scene of a crime, even when coupled with knowledge of the crime, is insufficient to establish [guilt] of the conspiracy to commit the crime.” (Emphasis added.)

In instructing the jury on the third element of conspiracy, the court once again referred the jury to its earlier instruction on specific intent and stated: “The defendant may not be found guilty unless the state has proved beyond a reasonable doubt that he specifically intended to commit the crime of murder when he entered into the agreement.” (Emphasis added.) The jury ultimately found the defendant guilty of the crimes charged.

“The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation . . . but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . .

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.” (Citation omitted; internal quotation marks omitted.) State v. Taylor, 132 Conn. App. 357, 366-67, 31 A.3d 872 (2011), appeal dismissed, 309 Conn. 83, 71 A.3d 464 (2013).

On the basis of our review of the court’s entire charge to the jury, we conclude that there is no reasonable possibility that the jury was misled with respect to the “agreement” element of the crime of conspiracy. Our analysis is controlled by this court’s decision in State v. Taylor, supra, 132 Conn. App. 357. Like the trial court in Taylor, the court in the present case repeatedly articulated that, in order to be found guilty of conspiring to commit murder, the jury must find that the defendant specifically intended both to enter into an agreement to commit murder and to commit the agreed upon murder. Additionally, the defendant’s contention that the jury reasonably could have believed that mere knowing participation in a plan to commit an unlawful act was sufficient to satisfy the agreement element of conspiracy is undermined by the court’s express instruction that “[t]he mere knowledge ... of the object of the agreement without cooperation or agreement to cooperate ... is not sufficient to make someone a party to a conspiracy to commit a criminal act. Mere presence at the scene of a crime, even when coupled with knowledge of the crime, is insufficient to establish [guilt] of the conspiracy to commit the crime.”

Moreover, as in Taylor, the defendant in the present case concedes that the contested jury charge was consistent with our Supreme Court precedent, but nevertheless contends that “the decades of [our] Supreme Court precedent itself misstates the law.” “The defendant’s argument seeks our involvement into the realm of the rectitude of Supreme Court precedent. As an intermediate appellate court, it is axiomatic that we are bound by the latest precedent of our Supreme Court and cannot reconsider its decisions. . . . We decline the defendant’s invitation because we are not at liberty to discard, modify or reevaluate the decisions he challenges.” (Citations omitted.) State v. Taylor, supra, 132 Conn. App. 369. Our Supreme Court, which is empowered to revise precedent on this issue, declined to do so when it determined that Taylor was improvidently granted certiorari, and therefore dismissed the defendant’s appeal. See State v. Taylor, 309 Conn. 83, 71 A.3d 464 (2013). We thus conclude that the court properly instructed the jury on the “agreement” element of the charge of conspiracy to commit murder. Consequently, the defendant failed to establish a clear constitutional violation pursuant to the third prong of Golding.

Ill

Finally, the defendant claims that he is entitled to a new trial because the court improperly denied his motion for a mistrial, predicated on jury misconduct. Specifically, he contends that “[t]he trial court erred by not inquiring of each juror as to the effect of the juror misconduct on their ability to remain impartial and by denying the defendant’s motion for a mistrial for jury misconduct.” We disagree.

The following additional procedural history is relevant to our resolution of this claim. After the jury commenced its deliberations, the foreperson submitted a note to the court stating that one of the jurors, S, had a potential conflict of interest with respect to a “personal relationship.” S also submitted a note to the court specifically inquiring as to whether the defendant was being held at a certain correctional center where her husband was employed. She expressed concern for her husband’s safety, in the event that the defendant was being held there and discovered that her husband was married to a juror on his case. Consequently, the court held an in-chambers conference with S and all counsel to determine whether she would be able to render an impartial verdict. S stated that she did not know whether the defendant was incarcerated at the specified correctional center, or whether he was incarcerated at all. She further stated that the other jurors saw the note that she submitted to the court and knew that her husband was employed at the specified correctional center. Counsel for both the state and the defendant questioned S regarding the nature of her concerns, and the court ultimately concluded that she would not be able to render an impartial verdict. Accordingly, it decided to excuse her from the jury and to replace her with an alternate juror.

Thereafter, the court contemplated whether it should question individually the remaining eleven jurors to determine whether S’s concerns affected their impartiality. The state expressed concern that such individual questioning might reinforce the issue of whether the defendant was incarcerated, thereby causing the jury to speculate impermissibly as to matters not in evidence. Instead, the state suggested that the court deliver a curative instruction admonishing the jurors not to infer from its decision to excuse S that the defendant was being held at the specified correctional center, or that he was incarcerated at all. The defendant agreed that individually questioning the jurors might reinforce the issue of whether the defendant was incarcerated, and further stated that such an inquiry would give “each juror that individual opportunity to say the magic words and get out of here if they . . . want to.” With the agreement of both parties, the court recessed to draft a curative instruction.

When the court reconvened, it excused S. Thereafter, the defendant moved for a mistrial, claiming that the jury was poisoned by S’s inquiries as to whether he was incarcerated and, therefore, the jury no longer presumed that he was innocent. The state opposed the defendant’s motion and instead moved for the court to seat an alternate juror and to issue a curative instruction. The court denied the defendant’s motion for a mistrial and granted the state’s motion. After selecting an alternate juror, the court delivered to the jury a curative instruction. After the jury was excused to deliberate, the defendant took exception to the court’s denial of his motion for a mistrial.

We decline to review the defendant’s claim because he induced the purported error. “This court routinely has held that it will not afford review of claims of error when they have been induced. [T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. ... It is well established that a party who induces an error cannot be heard to later complain about that error. . . . This principle bars appellate review of induced nonconstitu-tional and induced constitutional error. . . . The invited error doctrine rests [on principles] of fairness, both to the trial court and to the opposing party.” (Internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., 141 Conn. App. 738, 765 n.17, 62 A.3d 599, cert. granted on other grounds, 309 Conn. 910, 69 A.3d 307 (2013). The defendant induced the claimed error when he agreed to the curative instruction and, more specifically, when he agreed with the prosecutor that individual questioning of the remaining jurors could, in fact, harm the defendant’s right to an impartial jury, and further, that it could encourage some of them to feign bias in order to be excused from the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       “In Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), the United States Supreme Court held that a conspirator may be held hable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” (Internal quotation marks omitted.) State v. Martinez, 278 Conn. 598, 604 n.14, 900 A.2d 485 (2006).

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original; footnote omitted.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       The state contends that this claim is not reviewable because the defendant waived it. See State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). Because the record does not disclose whether the court provided counsel with a meaningful opportunity to review the proposed jury instructions, we decline to address the state’s waiver claim.

       “Aperson is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a).

       The court summarized its instructions on the crime of conspiracy to commit murder, stating, ‘The state must prove beyond a reasonable doubt that, one, the defendant had an agreement with one or more persons to commit the crime of murder, two, that at least one of the coconspirators did an overt act in furtherance of the conspiracy; and, three, the defendant specifically intended to cause the death of [the victim}.” (Emphasis added.)

       As this court noted in Taylor with respect to that defendant’s analogous claim, “the court’s instruction to the jury on the crime of conspiracy was in accord with Connecticut’s model jury instructions. See Connecticut Criminal Jury Instructions (4th Ed. 2007) § 3.3, available on the Connecticut Judicial Branch website, http://www.jud.ct.gOv/ji/criminal/part3/3.3-l.htm. The model instructions contain, verbatim, the words contested by the defendant, namely: ‘It is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act.’” (Emphasis in original.) State v. Taylor, supra, 132 Conn. App. 367-68 n.8.

       In moving for a mistrial, the defendant did not inform the court that he had changed his position with respect to questioning the jurors individually.


author: PER CURIAM.

text:
    RUSSELL PERILLO v. COMMISSIONER OF CORRECTION
    (AC 34604)
    DiPentima, C. J., and Beach and Keller, Js.
    Submitted on briefs January 22
    officially released March 25, 2014

      Matthew D. Dyer, assigned counsel, filed a brief for the appellant (petitioner).

      David S. Shepack, state’s attorney, Timothy F. Costello, assistant state’s attorney, and Marcia A. Pillsbury, deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Russell Perillo, appeals from the denial of certification to appeal from the denial of his petition for a writ of habeas corpus. In an unusual approach, the petitioner forgoes any challenge to the actions of the criminal trial counsel and instead makes the claim that his habeas counsel provided ineffective assistance of counsel during the proceedings underlying this appeal. We dismiss the appeal.

On February 11, 2008, the petitioner pleaded guilty pursuant to the Alford doctrine to manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and escape from custody in violation of General Statutes § 53a-171 (a) (1). The court sentenced the petitioner in accordance with a plea deal to thirty years incarceration, suspended after twenty years, and five years probation. The petitioner did not file a direct appeal from this conviction, but instead commenced the present habeas action acting as aself-representedparty.

On August 25, 2011, Attorney Michael D. Day filed a second amended petition for a writ of habeas corpus on behalf of the petitioner. The petition alleged that the petitioner’s criminal trial counsel, Attorney Christopher M. Cosgrove, had provided constitutionally deficient representation in a variety of ways, including the failure to investigate, the failure to advance a claim of self-defense pursuant to General Statutes § 53a-19, and the failure to assist the petitioner with his mental health issues. The petition also alleged that the petitioner’s right to due process was violated because his plea was not knowing, intelligent and voluntary.

On February 28, 2012, after trial, the court issued an oral decision denying the petition for a writ of habeas corpus. On February 29, 2012, the petitioner filed a petition for certification to appeal the denial of his petition for a writ of habeas corpus. Specifically, he sought certification for the following issues: “(1) Whether the [petitioner's constitutional right to the effective assistance of counsel . . . was violated; and (2) [w]hether the petitioner’s due process rights were violated because his plea was not knowing, intelligent and voluntary.” The court denied the petition for certification to appeal on March 2,2012. This appeal followed.

The Office of the Chief Public Defender filed an appearance in lieu of Day and appealed from the denial of certification to appeal and the judgment of the habeas court. Attorney Matthew D. Dyer subsequently appeared as assigned counsel in place of the public defender’s office and submitted an appellate brief challenging the actions of Day, the petitioner’s habeas trial counsel, and not Cosgrove, his criminal trial counsel.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s .first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court.” (Citation omitted; internal quotation marks omitted.) Spyke v. Commissioner of Correction, 145 Conn. App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn. 932, 78 A.3d 858 (2013); see also Crespo v. Commissioner of Correction, 292 Conn. 804, 811, 975 A.2d 42 (2009); Stepney v. Commissioner of Correction, 129 Conn. App. 364, 366, 19 A.3d 1262 (2011).

The petition for certification to appeal contained claims of alleged deficiencies by Cosgrove, the petitioner’s criminal trial counsel. On appeal, however, the petitioner challenges the actions of Day during the habeas trial. Specifically, he argues that Day should have presented evidence, including expert testimony, to set forth the standard of care to measure the actions of Cosgrove, and that Day should have presented evidence regarding the terms of the plea deal offered by the state.

The fatal flaw in the petitioner’s appeal is that these claims were not presented to the habeas court for a determination of whether certification to appeal should have been granted. “This court has determined that a petitioner cannot demonstrate that a habeas court abused its discretion in denying a petition for certification to appeal on the basis of issues that were not actually raised in the petition for certification to appeal. . . . Under such circumstances, the petition for certification to appeal could not have apprised the habeas court that the petitioner was seeking certification to appeal based on such issues. ... A review of such claims would amount to an ambuscade of the [habeas] judge.” (Citations omitted; internal quotation marks omitted.) Campbell v. Commissioner of Correction, 132 Conn. App. 263, 267, 31 A.3d 1182 (2011); see also Perry v. Commissioner of Correction, 131 Conn. App. 792, 796, 28 A.3d 1015 (Appellate Court declined to review claim not included in petition for certification to appeal), cert. denied, 303 Conn. 913, 32 A.3d 966 (2011); Logan v. Commissioner of Correction, 126 Conn. App. 744, 752, 9 A.3d 776 (2010) (same), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011); see generally Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 6-7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002). Our habeas jurisprudence does not permit the approach taken by the petitioner in this case. We conclude that the petitioner has failed to satisfy the threshold requirement that the habeas court abused its discretion in denying certification to appeal.

The appeal is dismissed.

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

       The court signed the transcript of its oral decision in compliance with Practice Book § 64-1.

       The court noted that it found Cosgrove to be a credible witness and that the petitioner’s testimony “lacked any real credibility.”