text:
    STATE OF CONNECTICUT v. CHARLES COLEMAN
    (12812)
    Schaller, Spear and Hennessy, Js.

      Submitted on briefs February 13

    officially released May 7, 1996

      Temmy Ann Pieszak, assistant public defender, filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, Harry Weller, assistant state’s attorney, and John Waddock, assistant state’s attorney, filed a brief for the appellee (state).

       This appeal was originally argued on May 23,1995. The amended appeal now before this court was submitted on briefs.

   SCHALLER, J.

This case is before us following proceedings in the trial court pursuant to our earlier remand of the case. State v. Coleman, 38 Conn. App. 531, 662 A.2d 150, cert. denied, 235 Conn. 906, 665 A.2d 903 (1995). The defendant appeals from the judgment of conviction, rendered after a trial by the court, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), and robbery in the third degree in violation of General Statutes §§ 53a-136 (a) and 53a-133.

In State v. Coleman, supra, 38 Conn. App. 531, we addressed the defendant’s claim that the destruction of a sex crime kit had deprived the defendant of his right to due process of law under article first, § 8, of the Connecticut constitution. In deciding the defendant’s motion to dismiss following discovery of the destruction of the evidence, the trial court had applied the bad faith test. After the trial court’s decision to deny the motion to dismiss, however, our Supreme Court decided that the Asherman balancing test must be used in cases involving a claim of violation of due process because of the loss or destruction of physical evidence. State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). We remanded the case to the trial court to reconsider the defendant’s motion to dismiss. State v. Coleman, supra, 536. On remand, the trial court determined that the defendant’s due process rights had not been violated.

On the basis of the proceedings on remand, the defendant now claims that the trial court (1) improperly violated his right to due process of law by refusing to permit him to introduce evidence in an evidentiary hearing and improperly applied the Asherman balancing test. We disagree. Because we disagree, we also address the defendant’s remaining claims on appeal. The defendant claims that the trial court improperly (2) denied him a one day continuance, (3) refused to remove the shackles and to state any reason for the use of the shackles, (4) deprived him of due process by convicting him of burglary in the second degree, (5) concluded that the evidence was sufficient to support his conviction of burglary in the first degree, (6) violated his right not to be placed in double jeopardy, (7) concluded that the evidence was sufficient to support his conviction of unlawful restraint in the first degree, (8) deprived him of due process when it vindictively sentenced him to 110 years in prison, and (9) violated his right not to be subject to cruel and unusual punishment. We affirm the judgment of the trial court.

In State v. Coleman, supra, 38 Conn. App. 533-34, we set forth the following facts. “On August 12, 1986, the defendant was arraigned on seven charges stemming from a burglary, robbery and repeated sexual assaults that occurred in the early morning of March 4, 1986. An agreement was reached in which the defendant pleaded guilty under the Alford doctrine to the charges, as well as to charges from eight other files. Prior to sentencing, the defendant sought to withdraw all of his pleas. The trial court allowed the defendant to withdraw his plea on one count from another file, but denied his motion to withdraw his pleas in this case. The defendant was sentenced to thirty-five years in prison on all charges from all nine files.

“On appeal, we affirmed the trial court’s refusal to allow the defendant to withdraw his plea. State v. Coleman, 17 Conn. App. 307, 552 A.2d 442 (1989). Subsequently, the defendant filed a petition for habeas corpus relief in federal court claiming that his plea canvass was defective. The United States District Court for the District of Connecticut vacated the defendant’s pleas and remanded the matter for trial. After that decision, on February 19,1992, the New Haven police department destroyed several pieces of evidence from the case. The destruction of that evidence was carried out pursuant to a court order dated June 6, 1990. A sex crime kit, which was not included on the list was erroneously destroyed. The kit contained physical evidence pertinent to the sexual assault. The United States Court of Appeals for the Second Circuit subsequently affirmed the decision of the District Court.

“After pleading not guilty to all counts, the defendant elected to be tried by the court. The defendant requested that the sex crime kit be made available for [deoxyribonucleic acid] DNA testing. When the state revealed that the kit had been erroneously destroyed, the defendant moved to suppress any test results and information regarding the testing of items in the kit, and to dismiss the charges on the basis of the state’s destruction of potentially exculpatory physical evidence. The motions were denied. The trial court found the defendant guilty on seven of the eight counts as charged. On the other count, the court found the defendant guilty of the lesser included offense of burglary in the second degree. The defendant received an effective sentence of 110 years in prison.” State v. Coleman, supra, 38 Conn. App. 533-34.

The trial court found the following additional facts. The victim resided alone in a New Haven apartment. During the early morning of March 4, 1986, she was asleep with her glasses on and wearing a nightgown. Between 3:30 and 4 a.m., the defendant used a sharp cutting tool to remove a pane of glass from one of the victim’s bedroom windows and entered her apartment. The victim awoke with the defendant straddling her. The defendant held his hand over the victim’s mouth and told her not to move if she did not want to get hurt. The defendant told her to take off her glasses and she did so. The defendant forced her to commit fellatio as he stood next to her bed and also forced her to engage in vaginal intercourse.

The defendant then demanded the victim’s money. She had cashed her paycheck the previous day and had separated the money into envelopes, each marked for the purpose of paying various bills. The defendant ordered the victim to take the money from the envelopes and she did so. The victim estimated that she had between $500 and $600. The defendant went through the envelopes and moved them about on the bed. The defendant asked the victim if she had any jewels or furs, and she replied in the negative. The defendant also asked her if she had a car, and she replied that she had a Datsun; he said he did not want the car.

The defendant then ordered the victim to get on her hands and knees on the bed, and he engaged in anal intercourse. He also forced her to engage again in fellatio. Before leaving, the defendant forced the victim onto her stomach and tied her up with shoelaces that he had brought with him. The defendant cut the victim’s telephone wires inside the apartment and left through a window and down a fire escape.

After waiting a short time to be certain that the defendant was gone, the victim freed herself. After discovering that her telephone wires had been cut, she called the police from a neighbor’s telephone. When the police arrived they took the victim to the police station where she gave a statement. The police then took the victim to a hospital for a physical examination. The police later identified the defendant through a partial palm print that he had left on one of the envelopes in the apartment that had contained the victim’s money.

I

The defendant claims that the trial court violated his right to due process by refusing to hold an evidentiary hearing with respect to the balancing test adopted in State v. Morales, supra, 232 Conn. 707. In our earlier decision in this case, we “remanded for further proceedings to reconsider the defendant’s motion to dismiss by applying the appropriate balancing test in light of State v. Morales, supra [707].” State v. Coleman, supra, 38 Conn. App. 536. The defendant argues that by refusing to consider his proffered evidence the trial court did not afford him an opportunity to address adequately the factors of the Asherman balancing test. The defendant also argues that the trial court improperly applied the Asherman balancing test. We find no merit in the defendant’s claims.

“Inquiry into whether particular procedures are constitutionally mandated in a given instance requires adherence to the principle that due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). There is no per se rule that an evidentiary hearing is required whenever a liberty interest may be affected. Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . Ingraham v. Wright, 430 U.S. 651, 675, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977). Rather, the [s]pecific dictates of due process generally require consideration of three distinct factors: [f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state’s] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

“When determining what procedures are constitutionally required, we must bear in mind that [t]he essence of due process is the requirement that a person in jeopardy of a serious loss [be given] notice of the case against him and [an] opportunity to meet it. . . . Id., 348-49.” (Internal quotation marks omitted.) State v. Lopez, 235 Conn. 487, 492-93, 668 A.2d 360 (1995). In other words, due process requires “notice and proceedings . . . adequate to safeguard the right for which the constitutional protection is invoked.” (Internal quotation marks omitted.) Douglas v. Warden, 218 Conn. 778, 785, 591 A.2d 399 (1991).

Our Supreme Court stated in Morales that to decide whether the defendant was deprived of a fair trial by reason of the state’s failure to preserve potentially exculpatory evidence “the trial court must employ the Asherman balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ ” State v. Morales, supra, 232 Conn. 726-27, quoting State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). We must analyze, therefore, whether the proceedings on remand were adequate to safeguard against the violation of the defendant’s due process rights by the state’s destruction of potentially exculpatory evidence.

In this case, the defendant argues that, because Morales was decided while his appeal to this court was pending, not all of the information that is relevant to the Asherman balancing test had been presented when the trial court initially considered, pursuant to the bad faith test, whether the state’s destruction of evidence violated his due process rights. At the hearing on remand, the defendant proffered the following evidence in support of his motion to dismiss. The defendant first proffered the transcript of the testimony from another trial given by Carl Ladd, a geneticist from the state forensics laboratory who is an expert in deoxyribonu-cleic acid (DNA). Ladd’s testimony was that in 1993 he had been able to perform DNA tests on samples from a sex crime kit taken in 1986. The defendant also proffered for judicial notice records from the defendant’s federal habeas case to establish the chronology of the entry of certain orders. The defendant finally proffered the testimony of Thomas Farver, the trial attorney in this case, to clarify whether Farver knew that the evidence was not available when he filed a motion for a DNA test. The trial court refused to consider the defendant’s proffered evidence and proceeded on the basis of the evidence that had been presented at trial and in the first hearing on the motion to dismiss.

The defendant further argues that the trial court improperly applied the Asherman balancing test by (1) requiring proof of the evidentiary value of the particular evidence that was destroyed rather than evaluating the type of evidence that was destroyed, (2) determining that there was no likelihood that the evidence was mistakenly interpreted, and (3) determining whether there was bad faith rather than considering the reasons for the unavailability of the evidence. We are unpersuaded. The trial court neither improperly applied the Asher-man balancing test nor violated the defendant’s due process right to an adequate proceeding by refusing to allow the defendant to introduce his proffered evidence in a full evidentiary hearing.

The trial court concluded that “the missing evidence is not material, that the analysis of the missing evidence . . . was not wrongly interpreted, and there is no prejudice caused to the defendant by the unavailability of said evidence. The defendant’s due process rights have not been violated.” In reviewing the trial court’s application of the Asherman balancing test, we are guided by our previous decisions and those of our Supreme Court. Because the question of the defendant’s due process right to have the state preserve potentially exculpatory evidence is a mixed determination of fact and law that requires the application of legal principles, our review is plenary. State v. Morales, 39 Conn. App. 617, 623, 667 A.2d 68 (1995).

The crucial question in addressing the materiality of the potentially exculpatoiy evidence is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Id. In cases such as this, a critical issue has been whether scientific tests could have been effectively performed on the destroyed evidence and produced useful evidence. Id., 624; citing State v. Asherman, supra, 193 Conn. 726; State v. Leroux, 18 Conn. App. 223, 234-35, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). In this case, the trial court noted, and our review of the record confirms, that “[t]here was no evidence offered upon which it would be determined whether it could have been scientifically possible for the defendant to conduct tests of the anal smear or anal swab for DNA matter. It is nothing but speculation to think that the specific smear or swab in this case could have been tested for DNA matter.”

The defendant argues that his failure to show the value of the specific piece of destroyed evidence is not fatal to his claim. The defendant points out that he attempted to introduce evidence through the testimony of Ladd that scientifically useful evidence has been obtained from the type of evidence at issue. The defendant refers to Ladd’s testimony in a separate trial that in 1993 he had been able to perform DNA tests on samples from a sex crime kit that had been taken in 1986.

In State v. Asherman, supra, 193 Conn. 726, our Supreme Court noted that “[t]he defendant offered no evidence nor made any offer of proof that the amounts of blood on the key ring and the hair were sufficient, if properly tested, to establish blood type.” Likewise, in State v. Morales, supra, 39 Conn. App. 624, we noted that “[e]ven if we assume that the perpetrator wiped his penis on the victim’s jacket after he assaulted her, we are left to speculate as to whether the jacket became stained, whether the stain would have indicated semen or some other substance, whether the substance would have been uncontaminated and sufficient in amount to conduct scientific testing, and whether the testing would have been effective to demonstrate that the defendant could not have been the perpetrator.” These decisions make it clear that, in analyzing the materiality of the destroyed evidence, the trial court properly focused on the specific evidence at issue. See also State v. Leroux, supra, 18 Conn. App. 234—35. We conclude that because the proffered testimony of Ladd had no bearing on whether scientific tests could have been effectively performed on the destroyed evidence and produced useful evidence in this case, the trial court did not improperly refuse to consider the testimony.

Another critical factor in examining the materiality of the destroyed evidence pursuant to the Asherman balancing test “is the defendant’s lack of interest in the evidence. State v. Baldwin, [224 Conn. 347, 365, 618 A.2d 513 (1993)]; see also State v. Harden, 175 Conn. 315, 327, 398 A.2d 1169 (1978). ‘The fact that a defendant failed to request the evidence goes to the issue of materiality and whether the defendant deemed it significant.’ State v. Morales, supra, 232 Conn. 712 n.7.” State v. Morales, supra, 39 Conn. App. 625. The defendant sought to demonstrate his interest in the evidence by offering Farver’s testimony and records from the defendant’s federal habeas case to establish the chronology of the entry of certain orders.

The defendant’s proffered evidence would demonstrate that on December 30, 1991, the United States District Court for the District of Connecticut vacated the defendant’s pleas and remanded the matter for trial. On May 8, 1992, the Court of Appeals for the Second Circuit affirmed the decision of the District Court. The defendant intended to elicit from Farver the date of his appointment to this case, the date he filed an appearance, that on June 8, 1993, he filed a motion for disclosure of evidence and to compel DNA testing, and that he learned of the destruction of the evidence on June 11, 1993. Because the defendant’s proffered evidence would show that he did not consider the evidence material enough to request it prior to June 8, 1993, the trial court did not deny the defendant’s due process right to an adequate proceeding by refusing to consider it.

The defendant next argues that the trial court improperly applied the second Asherman factor. The defendant posits that because the trial court improperly considered the evidence as tested rather than untested, it misinterpreted the missing evidence. State v. Asher-man, supra, 193 Conn. 724. The trial court noted that the anal swab and smear samples from the sex crime kit had been tested and spermatozoa and seminal acid phosphatase found. The samples demonstrated, therefore, that some kind of sexual activity had occurred. The samples had not, however, been tested for DNA. The defendant has offered nothing to indicate that the trial court incorrectly interpreted the evidence or lack of evidence. In this respect, it weighs heavily against the defendant that his case was tried to the court as opposed to a jury. State v. Morales, supra, 39 Conn. App. 626.

The defendant argues finally that the trial court improperly limited its analysis of the third factor of the Asherman balancing test to a consideration of the issue of bad faith and refused to consider the defendant’s assertion that the state intentionally destroyed the evidence. The defendant ignores, however, that at the original hearing on the defendant’s motion to dismiss the court considered the circumstances surrounding the destruction of the evidence. The court found that although the New Haven police department incorrectly thought that the June 6, 1990 destruction order included the sex crime kit, it was reasonable for the police to have believed that the kit was included. At the hearing on remand, the trial court held: “As the court has already found, the police did not act in bad faith.” We conclude that the trial court properly “ ‘focused on the motives behind the destruction of the evidence’ State v. Morales, supra, 39 Conn. App. 626, quoting State v. Leroux, supra, 18 Conn. App. 231; in balancing the third Asherman factor.

We conclude that the trial court properly applied the Asherman balancing test. In addition, the defendant was given an opportunity to be heard on his motion to dismiss and to make an offer of proof with respect to supporting his claim pursuant to our remand. See State v. Lopez, supra, 235 Conn. 497. The defendant offered no such supporting evidence, and we cannot conclude that the trial court abused its discretion by not allowing the defendant to introduce his proffered evidence before denying his motion to dismiss. We must now address the defendant’s remaining claims from his original appeal to this court.

II

The defendant claims that the trial court improperly denied his request for a one day continuance to obtain the testimony of an alibi witness. On the last day of trial, the defendant told his counsel that a woman with whom he had lived in 1986 would testify that they were together during the early morning hours of March 4, 1986. The defendant’s counsel informed the court of the defendant’s assertion that a potential alibi witness existed and requested a one day continuance. The trial court denied the request, noting the age of the case and that the request was nothing more than a “dilatory” tactic by the defendant. We conclude that the trial court did not abuse its discretion in denying the request for a continuance. See State v. Prutting, 40 Conn. App. 151, 168-69, 669 A.2d 1228, cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996).

III

The defendant next claims that he was deprived of his right to a fair trial because the trial court refused, over the defendant’s objections, to unshackle him on the first and fourth days of his trial. “ ‘The negative connotations of restraints . . . are without significance unless the fact of the restraints comes to the attention of the jury.’ ” Id., 167, quoting State v. Tweedy, 219 Conn. 489, 508, 594 A.2d 906 (1991). Because the defendant was tried by the court, we conclude that the defendant was not deprived of a fair trial by being shackled during his trial.

IV

The defendant next claims that his conviction of burglary in the second degree violated his constitutional right to notice. U.S. Const., amend. VI; Conn. Const., art. I, § 8. In count one of its long form information, the state charged the defendant with first degree burglary, alleging that on March 4, 1986, prior to 4 a.m., the defendant entered or remained unlawfully in a building with the intent to commit a crime therein while armed with a dangerous instrument. See General Statutes § 53a-101 (a) (1). The trial court dismissed count one, but on the state’s request considered a “lesser included offense” and convicted the defendant of burglary in the second degree. We find no merit in the defendant’s claim.

“[T]he defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.” State v. Jacobowitz, 182 Conn. 585, 590-93, 438 A.2d 792 (1981), overruled in part on other grounds, State v. Welch, 224 Conn. 1, 4, 615 A.2d 505 (1992). A defendant has adequate notice “[if] the state’s pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise .... State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).” (Internal quotation marks omitted.) State v. Ballas, 180 Conn. 662, 664, 433 A.2d 989 (1980); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). The defendant argues that he did not have adequate notice of the charge of burglary in the second degree because it is not a lesser included offense of burglary in the first degree. The state contends that because the information alleged that the crime occurred prior to 4 a.m., the defendant was notified that the crime occurred at night.

“There are [separate] tests comparing one crime with another to determine if one is a lesser included offense of the other or if the two are separate crimes. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). ‘The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.’ State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986); State v. Whistnant, supra, 584. The lesser included offense doctrine implicates notice requirements of due process. State v. Hudson, 14 Conn. App. 472, 476-77, 541 A.2d 539 (1988).” (Emphasis added.) State v. Falcon, 26 Conn. App. 259, 264, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992).

“On the other hand, ‘[u]nder the Blockburger test, “a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.” ’ State v. Tweedy, [supra, 219 Conn. 495]. The separate offense doctrine implicates double jeopardy concerns.” State v. Falcon, supra, 26 Conn. App. 264; see also State v. Guess, 39 Conn. App. 224, 238-39, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

The defendant incorrectly relies on the separate offense doctrine. The defendant asserts that burglary in the second degree requires proof that the offense occurred at night while burglary in the first degree does not. Moreover, the defendant asserts, burglary in the first degree requires proof that the defendant was armed with a dangerous instrument while burglary in the second degree does not. We do not undertake a comparison of the elements of one crime to another when the notice requirement of due process is at issue.

Instead, “we must determine whether it was possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. State v. Hodge, supra, [201 Conn. 385].” State v. Falcon, supra, 26 Conn. App. 264-65. While the crime of burglary in the first degree did not require the state to allege that the defendant committed the crime at night, it is clear that the state did allege that fact in the information by stating that the crime occurred on March 4, 1986, prior to 4 a.m. We conclude, therefore, that it was not possible for the defendant to commit burglary in the first degree, in the manner described in the information, without first having committed burglary in the second degree. See State v. Jacobowitz, supra, 182 Conn. 593.

Under these circumstances, the defendant cannot complain that he was not aware of the state’s nighttime burglary theory. State v. Roque, supra, 190 Conn. 156. “ ‘As the state’s pleadings here informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise . . . they have performed their constitutional duty.’ ” Id.; see State v. Williams, 205 Conn. 456, 465-66, 534 A.2d 230 (1987) (defendant’s waiver of right to jury trial for burglary in first degree constituted waiver for burglary in second degree charged in substitute information “because a defendant is deemed to be on notice that a charge of the more serious offense encompasses the lesser offenses”); see also State v. Martin, 187 Conn. 216, 219, 445 A.2d 585 (1982); State v. Jacobowitz, supra, 182 Conn. 591.

V

The defendant next claims that the evidence was insufficient to support his conviction of burglary in the first degree. Burglary in the first degree as charged in this case requires proof that the defendant entered or unlawfully remained in a building with the intent to commit a crime therein and, in the course of committing that offense, he intentionally, knowingly or recklessly inflicted bodily injury on another person. The defendant argues that his conviction should be vacated because there is no evidence that he inflicted “bodily injury” on the victim. We disagree.

Neither § 53a-101 (a) nor Connecticut case law defines “bodily injury.” In State v. Havican, 213 Conn. 593, 569 A.2d 1089 (1990), nevertheless, we find support for concluding that a sexual assault causes bodily injury. In State v. Havican, supra, 603, our Supreme Court held that the trial court improperly failed to instruct the jury that the defendant could use deadly physical force if necessary to repel a forcible sexual assault. Pursuant to General Statutes § 53a-19 a person is justified in using deadly physical force if the person reasonably believes that another person was (1) using or about to use deadly physical force or (2) inflicting or about to inflict great bodily harm. Our Supreme Court concluded that the common law provided that a person could justifiably use deadly force in self-defense of sodomy and rape because those offenses cause great bodily harm, and that § 53a-19 codified the common law rule. State v. Havican, supra, 599.

The injuries caused by sexual assaults “often far exceed physical injuries in duration and in their impact 'on the victim’s life.1 “Short of homicide, [sexual assault] is the ‘ultimate violation of self.’ It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. [Sexual assault] is very often accompanied by physical injury to the [victim] and can also inflict mental and psychological damage.” Coker v. Georgia, 433 U.S. 584, 597-98, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).’ . . . State v. Havican, [supra, 213 Conn. 599 n.3].” (Emphasis in original.) State v. Horne, 215 Conn. 538, 550, 577 A.2d 694 (1990).

In this case, the trial court found that “[i]n the course of committing the offense [the defendant] intentionally and knowingly inflicted bodily injury on the victim in that he compelled her to submit to anal intercourse.” The defendant does not challenge the sufficiency of the sexual assault evidence. We conclude that the defendant inflicted bodily injury on the victim by forcing the victim to engage in anal intercourse.

VI

The trial court sentenced the defendant to twenty years for his conviction of burglary in the first degree. The trial court also sentenced the defendant to ten years for his conviction of burglary in the second degree, which was to run concurrent with his sentences on all other counts. The defendant claims that sentencing on multiple convictions for a single burglary constitutes double jeopardy. We disagree.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause protects a defendant from multiple punishments for the same offense. State v. Ives, 37 Conn. App. 40, 49, 654 A.2d 789, cert. denied, 234 Conn. 906, 659 A.2d 1209 (1995), citing State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). “To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two prong test. . . . First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Ives, supra, 49; see also State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994).

In determining whether the crimes arose out of the same act or transaction, we refer to the language of the information. State v. Roy, 34 Conn. App. 751, 768, 643 A.2d 289 (1994), rev’d on other grounds, 233 Conn. 211, 658 A.2d 566 (1995); State v. Raymond, 30 Conn. App. 606, 611, 621 A.2d 755 (1993); State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992). The information alleged that “prior to 4:00 a.m., in the area of 625 Orange Street, the said Charles Coleman entered or remained unlawfully in a building with the intent to a crime therein (to wit: a sexual assault and/or theft), and he was armed with a dangerous instrument ... in violation of section 53a-101 (a) (1) . . . .” The information further alleged that “prior to 4:00 a.m., in the area of625 Orange Street, the said Charles Coleman entered or remained unlawfully in a building with the intent to commit a crime therein (to wit: a sexual assault and/or theft) and, in the course of committing that offense, he intentionally, knowingly or recklessly inflicted or attempted to inflict bodily injury on another person, in violation of section 53a-101 (a) (2) . . . .” Both charges could fairly be construed as resulting from a single burglary in which the defendant committed either a sexual assault or a theft. Because the information charges the defendant with two counts of burglary by performing acts at the same place at the same time, “but fails to state the nature of the alleged acts with sufficient particularity to determine whether they are in fact the same act or transaction, we construe the ambiguity in favor of the defendant and conclude that the charges arise out of the same act or transaction for double jeopardy purposes. See State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979); State v. Flynn, [14 Conn. App. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988)].” State v. Nita, supra, 114.

Our next inquiry is whether the two offenses are the same for double jeopardy purposes. Id. “ ‘The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).’ State v. Chicano, 216 Conn. 699, 706-707, 584 A.2d 425 (1990) [cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991)]. Under the Blockburger test, ‘a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.’ State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983); see State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990).” State v. Tweedy, supra, 219 Conn. 495. “The term ‘element’ as used in the Blockburger analysis . . . means any fact that the legislature has deemed essential to the commission of the crime.” State v. Woodson, 227 Conn. 1, 10, 629 A.2d 386 (1993).

The crimes of burglary in the first degree in violation of § 53a-101 (a) (2) and burglary in the second degree in violation of § 53a-102 each contain an element that the other does not. In order to convict the defendant of burglary in the first degree, the state had to prove that the defendant “inflict[ed] or attempted] to inflict bodily injury” on another person. General Statutes § 53a-101 (a) (2); see State v. Maxwell, 29 Conn. App. 704, 711-12, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509 U.S. 930, 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993). In order to convict the defendant of burglary in the second degree, the state had to prove that the defendant committed the crime at “night.” General Statutes § 53a-102; State v. Zayas, 195 Conn. 611, 613, 490 A.2d 68 (1985). “ ‘[T]he focus must be on the offenses and whether each offense requires proof of a fact that the other does not.’ ” State v. Walton, 227 Conn. 32, 53-54, 630 A.2d 990 (1993). Because each statute requires proof of an element that the other does not, we conclude that the offenses are not the same for double jeopardy purposes.

“The Blockburger test is a rule of statutory construction and its application does not result in a conclusive presumption.” (Internal quotation marks omitted.) State v. Nixon, 32 Conn. App. 224, 238, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). “[A] presumption under Blockburger that there are two crimes which may warrant two punishments may be rebutted by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes. State v. Russell, 25 Conn. App. 243, 251, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Roy, supra, 34 Conn. App. 771. The defendant has made no effort to rebut the presumption created by the application of the Blockburger test. See State v. Ford, 33 Conn. App. 143, 147-48, 634 A.2d 1188 (1993), rev’d in part on other grounds, 230 Conn. 686, 646 A.2d 147 (1994) (no double jeopardy violation when defendant sentenced on robbery in first degree and robbery in second degree); see also State v. Delgado, 19 Conn. App. 245, 255, 562 A.2d 539 (1989) (burglary in first degree and criminal trespass in first degree). We conclude that there was no double jeopardy violation.

VII

The defendant next claims that the evidence was insufficient to support his conviction of unlawful restraint in the first degree. The defendant claims that the state failed to prove beyond a reasonable doubt that the defendant restrained the victim “under circumstances which expose [d her] to a substantial risk of physical injury.” General Statutes § 53a-95 (a). We find no merit in the defendant’s claim.

In reviewing a sufficiency claim, we employ a two part analysis. State v. Finley, 34 Conn. App. 823, 826, 644 A.2d 371, cert. denied, 231 Conn. 927, 648 A.2d 880 (1994) . “The court must construe the evidence in a light most favorable to sustaining the verdict, and then determine from that evidence, and all the reasonable inferences that flow from it, whether the trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. . . . Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing.” (Citations omitted; internal quotation marks omitted.) State v. Martin, 38 Conn. App. 731, 743-44, 663 A.2d 1078 (1995) .

The trial court found that “the defendant did restrict the victim’s movement intentionally and unlawfully in such a manner as to interfere substantially with her liberty, confining her on the bed by tying her without her consent with shoelaces which he had brought with him. The restraining took place under circumstances that exposed the victim to a substantial risk of physical injury as that term is defined under our statutes, that is physical injury means impairment of physical condition or pain.”

The defendant argues that because the defendant restrained the victim for only a short period of time on her own bed while he made his escape, the circumstances did not pose a substantial risk of physical injury. A review of the evidence reveals that the defendant exited the victim’s apartment through a window and went down a fire escape. The victim did not immediately untie herself because she was not sure that the defendant had gone. The defendant had told the victim, when he first woke her up, not to move if she did not want to get hurt. Only after the victim was confident that the defendant had gone did she untie herself and call the police.

Where the evidence demonstrates that had the victim struggled and resisted, she might have been seriously injured, the trier of fact could find that the defendant restrained the victim under circumstances that posed a substantial risk of physical injury. State v. Monk, 198 Conn. 430, 434, 503 A.2d 591 (1986); State v. Fields, 31 Conn. App. 312, 331, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993); see also State v. Parham, 174 Conn. 500, 506-507, 391 A.2d 148 (1978) (victim tied to post in her garage and left there until able to free herself). The defendant had caused the victim to fear that if she moved she would be hurt. The defendant had sexually assaulted the victim four times, and the victim was restrained while the defendant left through a window and down the fire escape. Our review of the record reveals that the trier of fact had ample evidence to conclude reasonably that the defendant exposed the victim to a substantial risk of physical injury.

VIII

The defendant next claims that the trial court acted vindictively when it sentenced the defendant to 110 years in prison in violation of his rights to due process as guaranteed by the fourteenth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The trial court originally sentenced the defendant to thirty-five years in prison on the charges in this case. The United States District Court for the District of Connecticut vacated the defendant’s pleas and remanded the matter for trial. The defendant pleaded not guilty to all counts and elected to be tried by the court. The trial court found the defendant guilty on seven of the eight counts as charged and on one lesser included offense. The trial court sentenced the defendant to 110 years in prison.

In North Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the United States Supreme Court declared: “Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” “In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for him doing so must affirmatively appear.” Id., 726. “Otherwise, a presumption arises that a greater sentence has been imposed for a vindictive purpose — a presumption that must be rebutted by ‘ “objective information . . . justifying the increased sentence.” ’ Texas v. McCullough, 475 U.S. 134, 142, [106 S. Ct. 976, 89 L. Ed. 2d 104] (1986) (quoting United States v. Goodwin, 457 U.S. 368, 374 [102 S. Ct. 2485, 73 L. Ed. 2d 74] (1982).” Alabama v. Smith, 490 U.S. 794, 798-99, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); see also State v. Taylor, 207 Conn. 109, 113-14, 540 A.2d 64 (1988).

The situations in which the prophylactic Pearce presumption has been held to apply, however, have been limited by subsequent case law. See State v. Taylor, supra, 207 Conn. 114-15, and cases cited therein. “The decision in North Carolina v. Pearce, supra [395 U.S. 711], was only premised on the apparent need to guard against vindictiveness in the resentencing process. . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Taylor, supra, 115. The presumption applies, therefore, “only in cases in which a reasonable likelihood of vindictiveness exists. . . .” (Citations omitted; internal quotation marks omitted.) Id.

In Alabama v. Smith, supra, 490 U.S. 801, the United States Supreme Court held that “when a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge.” The court reasoned that “[e]ven when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.” Id. In other words, “in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. . . . Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present.” Id. The Pearce presumption, therefore, does not apply to the defendant’s situation in this case under federal law.

Nevertheless, the defendant claims that the Pearce presumption, or at least a modified form of the presumption, should be recognized under the Connecticut constitution. The defendant argues that we should examine the circumstances of each case to determine whether the presumption should apply, and that the 110 year sentence imposed in this case raises a presumption of vindictiveness. The defendant further argues that it is not unreasonable to require a judge imposing a higher sentence to state on the record the reasons for the higher sentence.

For support, the defendant relies on case law from other jurisdictions. First, the defendant points out that in San Roman v. State, 815 S.W.2d 785, 789 (Tex. Crim. App. 1991), the Court of Appeals of Texas reversed the defendant’s seventy-five year sentence because the defendant had twice before been sentenced to only fifty years. In San Roman, however, the defendant had first been sentenced following a jury trial and then pursuant to a plea agreement. Id., 787. The requirements articulated in Pearce that the trial court state on the record the reasons for the increased sentence, therefore, applied in San Roman only because the defendant received a greater sentence after his second trial than he did after his first trial. Id., 789.

The defendant next points to Johnson v. United States, 628 A.2d 1009, 1013-14 (D.C. 1993), in which the District of Columbia Court of Appeals stated that “a case by case determination is required to determine whether the presumption of vindictiveness is appropriate. The determination rests on an evaluation of whether there is concern about ‘institutional interests that might occasion higher sentences by a judge desirous of discouraging what he [or she] regards as mer-itless appeals.’ Texas v. McCullough, [supra, 475 U.S. 138-39] . . . .” (Citation omitted.) We note that that case was “the exact opposite of Alabama v. Smith, supra, 490 U.S. 794 . . . since the trial preceded the plea.” Johnson v. United States, supra, 1014. The Johnson court, therefore, considered different institutional concerns than those before us in this appeal. We conclude that the defendant has not provided us with any support for his claim that the Pearce presumption should apply to this case under the Connecticut constitution.

Moreover, our Supreme Court’s decision in State v. Taylor, supra, 207 Conn. 109, persuades us that the Connecticut constitution does not require the Pearce presumption to apply to the situation in this case. In Taylor, the court held that the presumption did not apply where a sentencing court imposed a greater sentence after a habeas court found that the defendant’s “rights had been prejudiced by the imposition of an effective sentence greater than that agreed to, and ordered the court to vacate the sentences and either impose an effective sentence [in accordance with the agreement], or allow the defendant to withdraw his pleas.” Id., 112. The court stated that there was no realistic motive for vindictive sentencing in the sentencing court’s action. Id., 117. In addition, the court stated: “We decline to expand upon the doctrine established in North Carolina v. Pearce, [supra, 395 U.S. 711].” State v. Taylor, supra, 113 n.9. Because the defendant has failed to provide any authority, and we have not located any, that institutional interests dictate that we should presume a trial court acted vindictively where a defendant is tried and given a greater sentence than the defendant received following an earlier defective plea canvass, we decline so to conclude under the Connecticut constitution.

“Where the Pearce presumption does not apply, the defendant must prove that vindictiveness actually occurred in the resentencing procedure, in order to obtain relief.” Id., 117. The defendant argues that “the tremendous increase in the sentence, and the fact that it is so disproportionate to the sentences imposed in similar cases . . . demonstrate actual vindictiveness.” We conclude, however, that the defendant must show more than that the trial court increased his sentence in order to demonstrate actual vindictiveness. “ ‘[T]he evil the [Pearce] Court sought to prevent’ was not the imposition of ‘enlarged sentences after a new trial’ but ‘vindictiveness of a sentencing judge.’ [Texas v. McCullough, supra, 475 U.S. 138]. See also Chaffin v. Stynch- combe, 412 U.S. 17, 25 [93 S. Ct. 1977, 36 L. Ed. 2d 714] (1973) (the Pearce presumption was not designed to prevent the imposition of an increased sentence on retrial ‘for some valid reason associated with the need for flexibility and discretion in the sentencing process,’ but was ‘premised on the apparent need to guard against vindictiveness in the resentencing process’).” Alabama v. Smith, supra, 490 U.S. 799.

IX

The defendant claims finally that he was given a disproportionate sentence in violation of his right not to be subjected to cruel and unusual punishment under the eighth and fourteenth amendments to the United States constitution and his right to due process under article first, § § 8 and 9, of the Connecticut constitution. The defendant argues that he has a right to have this court compare his sentence to the sentences of other prisoners with multiple sexual assault convictions. We disagree.

The United States Supreme Court has clearly stated that the sort of proportionality review that the defendant seeks is not required by the federal constitution. Pulley v. Harris, 465 U.S. 37, 43-44, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984). The defendant’s claim based on the Connecticut constitution has also been addressed. “It is well established that when the sentence imposed is within the limits fixed by statute for the offenses charged, an appellate claim that the sentence is excessive is nothing more than an appeal for clemency and a request that this court exercise discretionary authority it did not possess. State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982). ... A petition for sentence review ... is the appropriate vehicle by which to have this claim evaluated. See General Statutes [§§ 51-194 through 51-197].” State v. Baldwin, supra, 224 Conn. 370-71.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-136 (a) provides: “A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.”

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny."

       See Arizona v. Youngblood, 488 U.S. 51, 56-57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988); State v. Leroux, 18 Conn. App. 223, 227, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989).

        State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

       The defendant amended his appeal to add these claims pursuant to Practice Book § 4006. We granted the defendant permission to file a supplemental brief in relation to the claims.

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

       The samples referred to were part of the sex crime kit.

       The destruction order provided: “Sneaker laces, telephone wire cut, telephone cord cut, jar of Vaseline, plastic bag in a plastic bag, that should all be ordered destroyed.”

       The defendant does not argue that the trial court improperly applied the fourth factor in the Asherman balancing test, “the prejudice to the defendant caused by the unavailability of the evidence.” State v. Asherman, supra, 193 Conn. 724.

       Our Supreme Court has identified a list of factors that courts have considered in appellate review of matters of continuances. While not an exhaustive list, “courts have considered matters such as: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request,-, the likelihood that the denial would substantially impair the defendant’s ability to defend himself; the availability of other, adequately equipped and prepared counsel to try the case; and the adequacy of the representation already being afforded to the defendant.” (Emphasis added.) State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994).

       “As a general proposition, a criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant’s innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtroom. . . . State v. Williams, 195 Conn. 1, 5-6, 485 A.2d 570 (1985). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976). Sekou v. Warden, 216 Conn. 678, 691, 583 A.2d 1277 (1990).” (Internal quotation marks omitted.) State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991).

       See footnote 2.

       The trial court further found that the sexual assault “caused pain, and that is sufficient to meet the requirements of bodily injury under that section of the statute.” The defendant argues that the record is bereft of any evidence of pain, and the trial court improperly inferred that the act of anal intercourse caused pain. The defendant also argues that even if the trial court reasonably inferred pain, pain does not satisfy the definition of bodily injury. In view of our conclusion that sexual assault causes bodily injury, we do not need to reach these aspects of the defendant’s claim.

       Although the state has agreed with the defendant that the defendant’s sentencing violates his right not to be placed in double jeopardy, we are not bound by the state’s concession.

       On the basis of this charge, the defendant was convicted of burglary in the second degree. See part IV of this opinion.

       The defendant cites State v. Chicano, supra, 216 Conn. 699, in support of his claim. We note that Chicano stands for, inter alia, the proposition that a defendant’s rights under the double jeopardy clause are violated by convictions and sentencing for both felony murder and manslaughter in the first degree. Id., 710. Our Supreme Court held that “the legislature intended that manslaughter in the first degree and felony murder ‘should be treated as a single crime for double jeopardy purposes.’ ” Id., 708, quoting State v. John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). The defendant fails to offer any reason why Chicano dictates the same result for convictions and sentencing for both burglary in the first degree and burglary in the second degree.

       The defendant appeals from the trial court’s denial of his motion for a judgment of acquittal.

       See footnote 4; State v. Palmer, 206 Conn. 40, 54, 536 A.2d 936 (1988).

         See General Statutes § 53a-3 (3).

       The fourteenth amendment to the United States constitution provides: “All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       The constitution of Connecticut, article first, § 8, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process oflaw, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the aimed forces, or in the militia when in actual service in time of war or public danger.”
      Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The defendant was sentenced to ten years for burglary in the first degree, twenty years for each of four counts of sexual assault in the first degree concurrent with each other, and five years for robbery in the third degree. The defendant was also sentenced following his guilty pleas to charges stemming from eight other files. The sentences from the other files were all to run concurrent with the effective sentence of thirty-five years imposed on the charges from the file involved in this case.

       The United States Court of Appeals for the Second Circuit subsequently affirmed the decision of the District Court.

       The trial court sentenced the defendant to ten years in prisonfor burglary in the second degree, twenty years for burglary in the first degree, five years for unlawful rest raint in the first degree, twenty years for each of four counts of sexual assault in the first degree, and five years for robbery in the first degree. The two burglary convictions were combined and the ten year sentence for burglary in the second degree runs concurrent with each of the other counts, each of which was to be served consecutively.

       In State v. Taylor, supra, 207 Conn. 109, the defendant pleaded guilty to three charges and agreed with the state on a recommendation of a sentence of no more than three years, with the defendant retaining the right to withdraw his pleas if the decision of the sentencing court should exceed the agreement. Id., 116. The sentencing court imposed an effective sentence of five years, suspended after two and one-half years, with probation for three years, a sentence that tire habeas court determined was greater than three years. Id. On remand from the habeas court, the sentencing court imposed an effective sentence of three years. Id., 117.

       The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

       See footnote 26.

       General Statutes § 51-195 provides in relevant part: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. . . .”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EARL ALBERT OSBORN
    (13506)
    Dupont, C. J., and Schaller and Hennessy, Js.
    Argued November 2, 1995
    officially released May 7, 1996

      Jerome J. Rosenblum, special public defender, for the appellant (defendant).

      Michele Lukban, deputy assistant state’s attorney, "with whom, on the brief, were Michael Dearington, state’s attorney, and Cecelia Wiederhold, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), one count of attempted sexual assault in the third degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-72a (a) (1), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), four counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and three counts of risk of injury to a child in violation of General Statutes § 53-21.

The defendant asserts (1) that the trial court abused its discretion by failing to charge on the credibility of a child witness and (2) that the evidence was insufficient to support a conviction on the first and second counts of the fifth substitute information, which alleged attempted sexual assault in the third degree and attempted sexual assault in the first degree.

The jury reasonably could have found the following facts. The defendant intermittently lived with a woman and her four daughters, who were the victims in this case, during the period in which the various incidents of sexual assault occurred. At the time of trial, May, 1993, the ages of the children were thirteen, eleven, seven and three. The defendant is the father of the two youngest children. Additional facts will be set forth herein as necessary.

I

The defendant first claims that the trial court abused its discretion by failing to give a charge on the credibility of a child witness. During the trial, only the two oldest children testified. The defendant asserts that a charge was necessary with respect to the testimony of the children for the following reasons: the children were testifying about incidents that had occurred two to five years before trial; the children’s testimony related to both themselves and their sisters; the children’s testimony was the sole evidence with respect to some of the counts; children, generally, are subject to suggestion from adults; and the children did not take a formal oath. Instead of a formal oath, the trial court established, through questioning, that both children who testified knew what it was to make a promise and knew the difference between telling the truth and not telling the truth. Each child then promised to tell the truth.

“The prevailing view ... is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.” (Internal quotation marks omitted.) State v. James, 211 Conn. 555, 567-68, 560 A.2d 426 (1989); State v. Owen, 40 Conn. App. 132, 137, 669 A.2d 606 (1996). In James, our Supreme Court recognized that such a charge singles out the child’s testimony and tends to infringe on the role of the jury as the sole trier of fact. State v. James, supra, 568. Furthermore, the court characterized the requested charge in James as a cautionary comment on the evidence, rather than a charge on an applicable rule of law, and, as such, recognized that a trial court has broad discretion in commenting on the evidence. Id., 571. Our Supreme Court concluded that the trial court did not abuse its discretion in refusing the defendant’s request to charge on the credibility of a child witness. Id.

The facts of this case are similar to those in James. In James, the child witnesses were both twelve; in this case, the children were eleven and thirteen. In addition, the trial court in this case, as in James, commented extensively on the credibility of witnesses in general. The charge that the trial court refused to give in James is virtually identical to the charge requested in this case. State v. James, supra, 211 Conn. 566-67.

The defendant’s argument that children are subject to suggestion does not distinguish this case from James. The defendant’s other arguments are also unpersuasive. “[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible. State v. Adams, 225 Conn. 270, 278, 623 A.2d 42 (1993). It is the trier’s exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). The trier of fact may accept or reject the testimony of any witness. State v. Cooley, 24 Conn. App. 489, 490, 589 A.2d 377, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). The trier can, as well, decide what — all, none, or some — of a witness’ testimony to accept or reject. 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 32.” State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995). It was the jury’s role in this case to consider the evidence, and the jury was free to consider the amount of the evidence offered as to each count, whether the evidence came from the victims themselves or from another witness, and the lapse of time between the incidents and trial testimony. The jury received thorough instructions on these matters and was free to weigh all of these factors in determining the credibility of child witnesses.

The defendant’s argument that a formal oath helps to ensure truthfulness is also unpersuasive. The defendant does not object to the alternative oath that the trial judge administered, but suggests that the lack of a formal oath affects the credibility of the children. Our Supreme Court has recognized that children are not required to take a formal oath. State v. Rodriguez, 180 Conn. 382, 390, 429 A.2d 919 (1980). We fail to see how a promise to tell the truth, as opposed to a formal oath, makes a child less likely to tell the truth.

Accordingly, we conclude that the trial court did not abuse its discretion in refusing to charge the jury on the credibility of a child witness.

II

The defendant next contends that the evidence was insufficient to sustain a conviction on either count one or count two of the fifth substitute information. In determining whether the evidence was sufficient to support the convictions, “ ‘[w]e first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts . . . impliedly found by the juiy. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom . . . the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993).

A

Count one alleges that on or about June 19,1991, the defendant committed the crime of attempted sexual assault in the third degree by breaking down a bedroom door with the intent to force a child to submit to sexual contact. The defendant argues that the evidence was insufficient for the jury to conclude that (1) the incident occurred on or about June 19,1991, or (2) the defendant intended to force a child to submit to sexual contact.

1

The defendant first contends that the evidence was insufficient to establish that the incident involving the allegation that he broke down the girls’ bedroom door occurred on June 19, 1991. The information states that the incident occurred “on or about” June 19, 1991. (Emphasis added.) The oldest child testified that the incident in which the defendant had broken down the door and stood beside her bed occurred close to the last day of school. This incident took place just before the day that she was questioned at her school about someone’s sexually abusing her and was taken to the hospital because of the abuse. The eleven year old testified that she went to the hospital with her sisters to be examined for signs of sexual abuse on her graduation day in 1991. The girls’ mother testified that she had gone to the hospital with the girls in June, 1991. Based on the evidence presented, the jury could reasonably have concluded that the incident occurred on or about June 19, 1991.

2

The defendant next contends that the evidence was insufficient for the jury to conclude that he intended to commit sexual assault in the third degree when he broke down the bedroom door on or about June 19, 1991. Attempted sexual assault in the third degree requires intentional conduct that constitutes a substantial step toward the commission of compelled sexual contact by use of force. General Statutes §§ 53a-49 (a) (2) and 53a-72a (a) (1). The defendant contends that the evidence was insufficient to establish that the defendant took a substantial step toward the commission of attempted sexual assault in the third degree. “[W]hat constitutes a ‘substantial step’ in any given case is a matter of degree and a ‘question of fact’ for the jury.” State v. Milardo, supra, 224 Conn. 404, quoting State v. Green, 194 Conn. 258, 275, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). “The substantial step must be ‘at least the start of a line of conduct which will lead naturally to the commission of a crime ....’” State v. Milardo, supra, 404, quoting State v. Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1954).

The oldest child testified that she was sleeping in a bedroom with her two sisters closest to her age with the door locked. She further testified that she awoke to the sound made when the defendant pushed in the door breaking off the lock. She woke up her sisters, and the defendant then approached the children and stood beside their bed. The girls began to scream and the girls’ mother came to the room and chased the defendant out.

The eleven year old testified that her mother had put locks on the doors, but that they did not keep the defendant out because the defendant broke the locks on more than one occasion. She also testified that the defendant would come into the room at night and try to bother them, would “rub” on her older sister, would touch her older sister’s chest and buttocks or would touch her older sister and masturbate. She further testified that as a result of complaints to their mother, the mother gave the oldest child a stick to sleep with at night. The actions of the defendant would cease when the mother entered the room in response to their calls for help. The mother also testified that she had put locks on the doors, and that the defendant had broken three locks on two doors. The mother testified that when she would go into the girls’ room at night in response to their calls for help, she would find the defendant in the room without any clothes and with his penis exposed and, on occasion, masturbating. The mother testified that on one occasion she walked into the girls’ bedroom and saw the defendant, wearing only a shirt, on top of one of the girls.

With respect to the incident that occurred on or about June 19,1991, the jury could reasonably have found that the defendant broke down the door and approached the girls’ bed, thus taking a substantial step toward the commission of sexual assault. On the basis of this forcible entry and the evidence of the defendant’s actions in the girls’ bedroom on other occasions, the jury could reasonably have found that the defendant intended to subject one of the girls to sexual contact.

B

Count two alleges that on diverse dates between June 20, 1986, and June 20, 1991, the defendant committed the crime of attempted sexual assault in the first degree by attempting to engage in sexual intercourse with the oldest child. Attempted sexual assault in the first degree requires intentional conduct that constitutes a substantial step toward the commission of compelled sexual intercourse by use of force. General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1). Sexual intercourse includes vaginal and anal intercourse and may be committed with “an object manipulated by the actor into the genital or anal opening of the victim’s body” and includes digital penetration. General Statutes § 53a-65 (2); State v. Hermann, 38 Conn. App. 56, 60, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). The defendant contends that the state failed to proffer sufficient evidence of intent.

With respect to the charge of attempted sexual assault in the first degree, the information alleged that on diverse dates between June 20, 1986, and June 20, 1991, the defendant attempted to engage in sexual intercourse with the oldest child by the use of force or the threat of use of force that reasonably caused her to fear physical injury to herself. The evidence shows that, on at least one occasion, the defendant forcibly attempted to pull down the victim’s clothes and to reach her vagina with his hand. The victim successfully thwarted his efforts by placing her hand over her vagina. The evidence reveals that on another occasion, the defendant forcibly attempted to have anal intercourse with the oldest child, but was unsuccessful.

The intent of an actor may be inferred from the accused’s conduct and is a determination for the trier of fact. State v. Milardo, supra, 224 Conn. 403. The jury could reasonably have concluded on the basis of the evidence presented that the accused reached for the child’s vagina with his hands and attempted to insert his penis into her anus. The jury could also have concluded that the accused would have committed the crime of sexual intercourse if the victim had not thwarted his efforts. We conclude that sufficient evidence existed for the jury to conclude beyond a reasonable doubt that the defendant had the requisite intent to commit sexual assault in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant requested the following charge: “The capacity and intelligence of a child, her understanding of the difference between truth and falsehood, and her appreciation of the duty to teE the truth, and in a general way, belief that failure to perform that obligation wül result in punishment, are ingredients which you should consider in assessing the testimony of a child.
      “In certain respects a child is more apt to err than an older person; she is apt to be more amenable to any influence or suggestion which may be made to her by an older person. Their imagination also often misleads them; its product may take on all the semblances of actual fact and they will relate them as such; the sanctity of the oath and the solemnity of legal proceedings may appeal to them less than to an adult. On the other hand, motives of interest and ultimate design or purpose often sway her less than they do an adult.
      “As with any other witness, you should consider her demeanor on the stand, her manner of testifying, her capacity to observe and recollect facts, her abiUty to understand questions put to her, her ability to answer those questions intelligently, whether she impressed you as having an accurate memory and recollection, whether she impressed you as being a truthful individual and any other facts and circumstances bearing on her believability. You should give the testimony such weight as in your judgment it is fairly entitled to receive.”

       The trial court instructed the jury as follows with respect to the credibility of witnesses: “The credibility of witnesses and the weight to be given their testimonies are matters which it is peculiarly your function to determine, however, I may properly make certain suggestions to you. No fact is, of course, to be determined merely by the number of witnesses testifying for or against it. It is the quality not the quantify of the testimony which controls. In weighing the testimony of a witness you should consider his or her appearance upon the stand. You should try to size him or her up. You should have in mind all those little circumstances which point to his or her truthfulness or untruthfulness. You should consider any personal bias or prejudice he or she may have, whether for or against the state or the defendant. His or her interest or lack of interest, of whatever sort, in the outcome of the trial. His or her ability to observe facts correctly and to remember and relate them truly and accurately. You should test the evidence he or she gives by your own knowledge of human nature and of the motives which influence and control human action. Any facts are admitted or otherwise proved to you, you may well bring them into relation with his or her testimony and see if they fit together with it. In short you are to bring to bear upon it the same considerations and use the same sound judgment you apply to the questions of truth and veracity which are daily presenting themselves for your decisions in the ordinary affairs of your lives. Any conduct or statement of a witness which you find inconsistent with any other conduct or statement of that witness you may consider in weighing the credibility of that witness.”

       See footnote 2.

       This court has previously stated that “in a case involving the sexual abuse of a very young child, that child’s capacity to recall specifics, and the state’s concomitant ability to provide exactitude in an information, are very limited. The state can only provide what it has. This court will not impose a degree of certitude as to date, time and place that will render prosecutions of those who sexually abuse children impossible. To do so would have us establish, by judicial fiat, a class of crimes committable with impunity.” State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988).

       On the basis of this testimony, the jury could reasonably have found that this incident occurred on or about June 19, 1991. See part II A 1 of this opinion.


author: FOTI, J. HENNESSY, J.,

text:
    LORI DANISE v. BUDGET RENT-A-CAR OF WESTCHESTER, INC., ET AL.
    (14014)
    Foti, Landau and Hennessy, Js.
    Submitted on briefs January 9
    officially released May 7, 1996

      James A. Wade, with whom, on the brief, was Craig A. Raabe, for the appellant (plaintiff).
   FOTI, J.

The plaintiff appeals following the trial court’s denial of her motion to open the judgment of dismissal for failure to prosecute with reasonable diligence.

The plaintiff, a passenger in a rented car, was injured in a single car accident in May, 1988. She commenced suit against the driver, Martin W. Martonik; the car’s lessee, Mary C. Danise; the lessor, Budget Rent-A-Car of Westchester, Inc.; and the permittee of the restaurant where Martonik had allegedly consumed alcohol prior to the accident, William Cavanaugh. The action was dismissed in December, 1991, pursuant to Practice Book § 251. Thereafter, the plaintiff commenced the present action against the same four defendants pursuant to the accidental failure of suit statute, General Statutes § 52-592. Two defendants, Martonik and Cavan-augh, were defaulted for failure to appear. On June 24, 1994, this second action was dismissed for failure to prosecute with reasonable diligence, pursuant to Practice Book § 251. The plaintiffs motion to open the judgment of dismissal, filed pursuant to Practice Book § 326, was denied. The trial court granted the plaintiffs motion to reargue her motion to open but denied the relief sought. The plaintiff filed this appeal on September 12, 1994.

On June 20, 1995, the plaintiff withdrew her appeal against Budget Rent-A-Car of Westchester, Inc., and, on September 25, 1995, withdrew her appeal against the defendant Mary C. Danise.

The plaintiffs appellate brief was filed on January 6, 1995. As no appellee’s brief had been filed in response, the parties were directed to appear on September 20, 1995, to address whether the appeal should be disposed of pursuant to Practice Book § 4055. The plaintiff indicated that the appeal was being withdrawn against the last appearing defendant, but requested relief as against the two nonappearing and defaulted defendants.

Where a court has the power to open a judgment, its action represents the exercise of discretion. Cichy v. Kostyk, 143 Conn. 688, 697, 125 A.2d 483 (1956). We will not disturb that decision on appeal unless the court acted unreasonably and in clear abuse of its discretion. Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546, 621 A.2d 300 (1993); Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).

Our review of the record discloses that the trial court did not act unreasonably under the particular circumstances of this case, nor did the court abuse its discretion in denying the plaintiffs motion to open. We see no practical purpose in reviewing the background of this matter. Our inquiry does not end there, however. Because of the particular circumstances of this case, we choose to act pursuant to our authorization under Practice Book § 4055.

When this matter was dismissed on June 24, 1994, pursuant to § 251, the action affected all parties, including the defaulted nonappearing parties. The motion to open the judgment of dismissal was directed to all four defendants, and the denial of that motion involved all of them. The timely appeal, taken by the plaintiff, was from the action of the court denying her request to open, as against all defendants, including the two defaulted nonappearing defendants. The two defendants, Mar-tonik and Cavanaugh, have failed to defend the appeal with proper diligence. Because of their inaction in failing to appear in the trial court, they have deprived themselves of the ability to defend on appeal, a self-induced position for which the plaintiff should not be penalized.

While the plaintiff may have transgressed in failing to move for judgment on the defaults, under the particular circumstances of this case, that inaction should not prejudice her as against the nonappearing and defaulted defendants. A party is presumed to be aware of the rules of practice; Jaconski v. AMF, Inc., 208 Conn. 230, 235, 543 A.2d 728 (1988); and, therefore, of the potential consequences of failing to comply with the requirements of filing an appearance.

“Only when the defendant is defaulted for failure to appear for trial may judgment be rendered without notice to the defendant. Practice Book § 364 (a).” Skyler Ltd. Partnership v. S. P. Douthett & Co., 18 Conn. App. 245, 250, 557 A.2d 927 (1989). Thus, we also conclude that notice of the appeal itself was not required to either nonappearing defaulted defendant, nor are those defendants deprived of appellate review. While the entry of a default for failure to appear does not constitute a final judgment from which an appeal may be taken; Practice Book § 4000; an appealable final judgment exists when the judgment is rendered on that default. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951).

The rules of practice will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work an injustice. Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Pursuant to Practice Book § 4055, we, therefore, sua sponte, set aside the judgment of dismissal as against the only remaining defendants, the nonappearing and defaulted parties, Martonik and Cavanaugh.

The judgment of dismissal as to the defendants Martin W. Martonik and William Cavanaugh is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion LANDAU, J., concurred.

HENNESSY, J.,

dissenting. I agree with the majority in so far as it states that when a trial court is acting in the exercise of its discretion, an appellate court will not reverse that trial court’s decision unless the trial court acted unreasonably and in clear abuse of its discretion. I also agree with the majority’s assessment that the trial court neither acted unreasonably under the circumstances of this case nor abused its discretion in denying the plaintiffs motion to open. Unlike the majority, I would end my inquiry with that determination, and I would affirm the judgment of the trial court.

The subject of this appeal is the trial court’s action in response to the inaction of the plaintiff. The nonap-pearing defendants are not relevant parties to the appeal under consideration. The issue on appeal is whether the trial court abused its discretion in denying the plaintiffs motion to reopen its judgment of dismissal for failure of the plaintiff to prosecute the case with due diligence. The defendants’ failure to appear at trial or on appeal has no relevance to the substantive issue on appeal. Under these circumstances, Practice Book § 4055 is not applicable to the defendants. The failure to appear since the initiation of this suit has not interfered with the appellate process or the rights of the plaintiff in this matter.

For the foregoing reasons, I respectfully dissent.

       Practice Book § 251 provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the court may . . . render a judgment dismissing the action . . . .”

       The plaintiff never moved for judgment to be rendered on those defaults.

       The defendant, Mary C. Danise, was still aparty to this appeal at that time.

       Practice Book § 4055 provides: “If a party shall fail to prosecute an appeal with proper diligence, the court may, on motion by any other party to the appeal or on its own motion, dismiss the appeal with costs. If a party shall fail to defend against an appeal with proper diligence, the court may, on motion by any other party to the appeal or on its own motion, set aside in whole or in part, the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure. If that party is a defendant in the action, the directed judgment may be in the nature of a judgment by default for such amount as may, upon a hearing in damages, be found to be due. If that party is a plaintiff in the action, the directed judgment may be one dismissing the action as to that plaintiff, and the judgment shall operate as an adjudication upon the merits. The statutory provisions regarding the opening of judgments of nonsuit and by default shall not apply to a judgment directed under the provisions of this rule. A motion to dismiss or for judgment based on lack of diligence may be filed at any time.”

       This court,, sua sponte, ordered that the appeal be considered on the appellant’s brief and the record only.

       At the time of the denial of the plaintiffs motion to open, both appearing defendants were still in the case, and the defendant Budget Rent-A-Car of Westchester, Inc., had filed an objection both to the motion to open and to the motion to reargue the denial of the motion to open. The denial of the motion to open the judgment of dismissal rendered pursuant to § 251 acts as a disciplinary measure. Morelli v. Manpower, Inc., 226 Conn. 831, 837, 628 A.2d 1311 (1993).

       We exercise our discretion in setting aside this judgment pursuant to Practice Book § 4055. See Douglas v. Warden, 218 Conn. 778, 787, 591 A.2d 399 (1991). We do not agree with the dissent that the nonappearing defendants axe not “xelevant paxties to the appeal under consideration.”