author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. LUIS GERONIMO CLAUDIO
    (AC 31047)
    Bishop, Robinson and Schaller, Js.

      Argued May 25
    officially released August 17, 2010

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      David J. Vandrilla, certified legal intern, with whom were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Maxine V. Wilensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Luis Gerónimo Claudio, appeals from the judgments of conviction rendered by the trial court following his conditional pleas of guilty to possession of marijuana in violation of General Statutes § 21a-279 (c), evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b) and assault of public safety personnel in violation of General Statutes § 53a-167c. On appeal, the defendant claims that his guilty pleas were constitutionally defective because the court’s canvass was inadequate and his pleas were not knowing and intelligent. We affirm the judgments of the trial court.

The following factual and procedural history is relevant to our disposition of the defendant’s appeal. On July 16, 2008, the defendant pleaded guilty under the Alford doctrine to possession of less than four ounces of marijuana, evading responsibility and assault of a police officer. He also admitted a violation of probation. In exchange for the defendant’s guilty pleas and admission, pursuant to a Garvin agreement, the court delayed sentencing for four months on the condition that the defendant not be arrested for any new conduct before his sentencing hearing; if he violated that condition, he would not be permitted to withdraw his guilty pleas and would be subject to the maximum sentence allowed for the offenses to which he pleaded guilty and for his violation of probation.

Near the outset of the plea canvass, when the court explained that the defendant could either enter his pleas or proceed with his violation of probation hearing, the defendant expressed some confusion. The court responded that it could not accept the defendant’s pleas if he did not understand his options and, therefore, instructed the defendant that he should return on August 6, 2008, for a hearing on the violation of probation charge. The defendant insisted, however, that he was ready to plead immediately. After asking the defendant, “what don’t you understand?” and ascertaining that he knew that his pleas would be permanent, the court recommenced the plea canvass. Throughout the canvass, the defendant consistently responded that he understood the proceedings and that he had not been coerced into pleading guilty. He also confirmed that defense counsel had “explained everything” and that he was satisfied with counsel's representation. The court accepted his pleas and his admission and set a sentencing date.

In violation of the Garvin agreement, the defendant was arrested before the scheduled sentencing date. Subsequently, on December 17, 2008, the court sentenced him to the maximum term of thirteen years incarceration on his guilty pleas and probation violation. This appeal followed.

The defendant claims that his guilty pleas were not knowing and intelligent and, therefore, were constitutionally defective. He claims, as well, that the court’s canvass was inadequate. We assess these interwoven claims together. He concedes that the claims were not preserved and requests review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). As our Supreme Court has held in other cases, the record is adequate for Golding review because it contains a full transcript of the plea hearing and the claim is of constitutional magnitude because an inadequate plea canvass implicates due process rights. See State v. Fagan, 280 Conn. 69, 90, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). The defendant’s claim fails to satisfy the third Golding prong, however, because he has not established that a constitutional violation clearly exists.

Several important constitutional rights are waived by a defendant entering a guilty plea; therefore, due process requires that the waiver be knowingly and voluntarily made, and that it be affirmatively disclosed in the record. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Specifically, “we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea.” (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 451, 936 A.2d 611 (2007). “[W]e conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary.” (Internal quotation marks omitted.) State v. Burgos, 118 Conn. App. 465, 468, 984 A.2d 77 (2009).

The defendant claims that there were two defects in the plea canvass rendering it inadequate and that he did not waive his rights knowingly and voluntarily. First, he contends that the court failed to explain that he was giving up his right to a jury trial, as required by Practice Book § 39-19 (5), because the court mistakenly stated that the defendant was waiving his right to a “hearing before a judge or jury”; (emphasis added); instead of a “trial” and, therefore, that the record does not disclose that he knowingly and voluntarily gave up this right. Second, he contends that the court failed to explain the specific intent element of the charge of assault of a police officer, as required by Practice Book § 39-19 (l), rendering the canvass inadequate and the record devoid of adequate evidence that he entered his plea to this charge knowingly and voluntarily. We are unpersuaded.

Practice Book § 39-19 was designed to ensure that guilty pleas comport with due process; however, a guilty plea “may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [Practice Book §§ 39-19 and 39-20].” (Internal quotation marks omitted.) State v. Barnwell, 102 Conn. App. 255, 259, 925 A.2d 1106 (2007). In other words, “substantial compliance” is sufficient. State v. Hanson, 117 Conn. App. 436, 444, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010). For example, in State v. Badgett, 200 Conn. 412, 419-20, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), in which the trial court asked a defendant in a plea canvass whether he understood that he was giving up his “ ‘right to trial’ ” without specifying a jury trial, our Supreme Court concluded that the plea canvass was constitutionally sufficient because the trial court expressly mentioned waiver of the right to trial and the defendant had both prior experience with criminal proceedings and adequate representation by counsel.

In the present case, the court’s explanation of the defendant’s waiver of his right to a jury trial substantially complied with Practice Book § 39-19 (5), despite the fact that the court substituted the word hearing for the word trial. The court explained to the defendant before beginning the plea canvass that if he chose not to plead guilty, “the other cases you have will be placed on the trial fist and we will try those . . . .” Later, the court again expressly informed the defendant that if he chose not to plead guilty, “you can have your trial.” Additionally, the defendant twice affirmed that defense counsel adequately had explained everything and that he was satisfied with counsel’s representation. Furthermore, the court clarified that the defendant was giving up the right to be heard “before a judge or jury, to have an attorney represent you at that hearing, to present defenses, confront accusers, cross-examine witnesses, and you are giving up your right against self-incrimination.” By expressly mentioning and describing the defendant’s right to a trial, and by confirming that the defendant had access to adequate representation, the court substantially complied with Practice Book § 39-19 (5).

The defendant’s second argument, which is that the court did not explain adequately an element of the assault charge, is likewise unavailing. “It is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” (Internal quotation marks omitted.) State v. Barnwell, supra, 102 Conn. App. 259. This rule is embodied in Practice Book § 39-19 (1). For substantial compliance with that section, notice need not be provided by the court itself. “[E]ven without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. . . . [U]nless a record contains some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies.” (Emphasis in original; internal quotation marks omitted.) Id., 259-60. For example, in State v. Heyliger, 114 Conn. App. 193, 200-202, 969 A.2d 194 (2009), this court found a “positive suggestion” that it should not apply the presumption when a defendant expressly contended that defense counsel had not informed her of the elements of the charges and neither the trial court nor the attorneys initiated further discussion on the matter.

In the present case, the defendant argues that there was a positive suggestion that he had not been informed of the nature and elements of the charges; however, this contention is not supported by the record. Both the defendant and defense counsel stated during the plea canvass that they had discussed the elements of the charges. Although the defendant also expressed some confusion during that exchange, when the court queried, “what don’t you understand?” the defendant’s uncertainty pertained to whether the court would accept the plea deal, not the elements of the charges. Thus, this exchange was not a positive suggestion that defense counsel failed to explain the charges, and the court could presume that defense counsel did so.

Moreover, the defendant was put on notice of the intent element of this charge later in the canvass, which likewise was sufficient to establish substantial compliance with Practice Book § 39-19 (1). During her summation of the charges, the prosecutor described the defendant’s crashing his car into the police officer’s vehicle and “hitting him head-on in order to get away.” This description of the defendant’s intentional conduct gave him notice of the intent element and satisfied his due process rights. See, e.g., State v. Johnson, 253 Conn. 1,39-40, 751 A.2d 298 (2000) (defendant acquired notice of element omitted by court from reading of charges by court clerk and state’s summation). Finally, at the conclusion of the court’s canvass, and after the court had heard the defendant’s pleas, defense counsel represented to the court that he had explained the elements of all of the charges to the defendant. Accordingly, the plea canvass was not defective, and the defendant’s pleas and admission were entered knowingly and voluntarily.

The judgments are affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement. See State v. Garvin, [242 Conn. 296, 300-302, 699 A.2d 921 (1997)].” (Internal quotation marks omitted.) State v. Petaway, 107 Conn. App. 730, 732 n.2, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).

       The transcript states in relevant part:
      “The Court: So, you know, if you feel that you are being pressured or between a rock and a hard place, you can have your hearing, you can have your trial. I’m not telling you to take this; you can walk out of here today and come back August 6 [2008] at two o’clock for your hearing. Do you understand that?
      “[The Defendant]: I kinda understand, but I really don’t understand. “The Court: Well, that’s fine, then it’s August 6 at two o’clock for a hearing; don’t worry about it. We’ll see you August 6, two o’clock. You don’t understand; August 6, two o’clock—
      “[The Defendant]:—no—
      “[Defense Counsel]:—Your Honor—
      “The Court:—August 6 at two o’clock. I’m not taking the pleas because you don’t understand; August 6, two o’clock. That’s the hearing date before Judge Holden. Okay, you are all set.
      “[The Defendant]: You already accepted the deal though.
      “The Court: No, I’m not, because you said—
      “[The Defendant]:—no—
      “The Court:—I don’t really understand. If you don’t understand, how can I do it?
      “[The Defendant]: I already accepted the deal. I just told [defense counsel] my own understanding of the charges.
      “[Defense Counsel]: Your Honor, I have thoroughly explained all the charges to him—
      “[The Defendant]:—I already said—it don’t make sense to me— “[Defense Counsel]:—I have explained all of the evidence—
      “The Court: What don’t you, what don’t you understand? Why you are getting four years in jail?
      “[The Defendant]: I took the deal.
      “The Court: Because—you come back you can’t take your plea back— “[The Defendant]:—all right—
      “The Court:—you understand that?
      “[The Defendant]: Eight, yes, I understand.”

       Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if ait 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.)

       The defendant also suggests that the canvass was incurably defective because of the confusion he exhibited at the outset of the canvass, despite his subsequent affirmations of understanding. We do not review this claim because he raises it for the first time in his reply brief. See Burns v. Quinnipiac University, 120 Conn. App. 311, 320 n.9, 991 A.2d 666 (2010). The claim is without merit, regardless. “A court is permitted to rely on a defendant’s responses during a plea canvass”; State v. Hanson, 117 Conn. App. 436, 449, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010); and here, the court permissibly relied on the defendant’s seventeen affirmations of understanding that followed his moment of confusion.

       The right to trial by jury is one of the fundamental constitutional rights that a defendant must waive knowingly and intelligently for a guilty plea to be valid. Boykin v. Alabama, supra, 395 U.S. 243-44.

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands . . .
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       Before an accused can be found guilty of assault of a public safety officer, the state must prove that the accused had the “intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties . . . .” General Statutes § 53a-167c (a).

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered . . . .”


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    SUBURBAN GREATER HARTFORD REALTY MANAGEMENT CORPORATION v. ROBYN JOHNSON EDWARDS
    (AC 31016)
    Gruendel, Beach and West, Js.

      Argued April 15
    officially released August 17, 2010

      Cecil J. Thomas, with whom was Wilfred Rodriguez, for the appellant (defendant).

      W. Herbert Reckmeyer, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Robyn Johnson Edwards, appeals from the judgment of the trial court granting possession of the premises in favor of the plaintiff, Suburban Greater Hartford Realty Management Corporation, in its summary process action alleging serious nuisance pursuant to General Statutes § 47a-15 (C). On appeal, the defendant claims that the court lacked subject matter jurisdiction to render judgment pursuant to § 47a-15 (A) rather than § 47a-15 (C). We agree and conclude that the court lacked subject matter jurisdiction.

The following facts, as found by the court, and procedural history are relevant. The plaintiff is the owner and landlord of an apartment complex known as Squire Village located at 64 Spencer Street in Manchester. John Hamill was a principal of the plaintiff and is referred to by the parties as the owner of the apartment complex. The defendant has been a tenant in Squire Village and has resided in apartment C of the complex for approximately ten years.

On May 30, 2008, the defendant was angry because her toilet was not functioning properly, despite several visits by the plaintiffs maintenance workers. The defendant drove to the plaintiffs Manchester office, where she screamed, “I’m going to blow someone’s f ing head off . . . where’s John Hamill?” The plaintiffs receptionist told the defendant that Hamill was not in the Manchester office and that he worked in the main office in East Hartford. The defendant responded: “Tell him I’m coming.” The defendant then sped away in her car. The receptionist immediately called the East Hartford office to warn Hamill of the defendant’s threat. She told Hamill that the defendant was on her way to see him and was in an “ ‘enraged’ ” state. She also called the police because she was “ ‘definitely concerned that there was a problem there.’ ”

The defendant drove to the East Hartford office. When she arrived, she knocked on the door but was not allowed in. The defendant continued to knock on the door four or five additional times and each time was refused entry while Hamill waited for the police to arrive. Hamill was fearful because he could hear the defendant demanding to see him in a loud and angry voice. Shortly thereafter, the East Hartford police arrived and, after questioning the defendant, detained her until the Manchester police arrived and arrested her.

On June 4, 2008, the plaintiff caused a notice to quit possession to be served on the defendant. Thereafter, on July 18, 2008, the plaintiff brought a summary process action seeking possession of the leased premises, and, in response, the defendant filed an answer. On September 3, 2008, the defendant filed a motion to dismiss the case for lack of subject matter jurisdiction. The court denied the defendant’s motion to dismiss in an oral decision on October 7, 2008.

On December 1, 2008, a trial was held, and on April 24, 2009, the court ruled in favor of the plaintiff on its summary process action. The court found that “it [was] reasonable to conclude that the defendant’s threat to inflict bodily harm, when uttered in a state of anger or rage by a person with no obvious limitation on the ability to carry out the threat, would lead a reasonable person to believe the threat was serious and would be carried out.” On the basis of these findings, the court concluded that the plaintiff had proved, by a fair preponderance of the evidence, all of the elements of its serious nuisance claim and rendered judgment in favor of the plaintiff for immediate possession of the premises. The court echoed the language appearing in § 47a-15 (A), and the parties agree that the court found the elements of that subsection proved. The court’s memorandum of decision did not find a violation of § 47a-15 (C).

The defendant claims that the court lacked subject matter jurisdiction to render judgment under § 47a-15 (A) because the plaintiffs notice to quit alleged only § 47a-15 (C) as a basis for eviction. The plaintiff contends, to the contrary, that the court applied the more stringent standard of proof articulated in § 47a-15 (A) and found that all of the elements of that subsection were satisfied. The plaintiff therefore alleges that the court’s finding was not erroneous, then, because the allegedly less demanding standard of proof in § 47a-15 (C) necessarily was satisfied. We agree with the defendant.

“We previously have articulated our standard of reviewing challenges to the trial court’s subject matter jurisdiction in a summary process action on the basis of a defect in the notice to quit. Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit. ... As a condition precedent to a summary process action, proper notice to quit [pursuant to General Statutes § 47a-23] is a jurisdictional necessity. . . . This court’s review of the trial court’s determination as to whether the notice to quit served by the plaintiff effectively conferred subject matter jurisdiction is plenary.” (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

Before addressing the specifics of the defendant’s claims, it is helpful to identify the legal principles regarding summary process actions. “Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Internal quotation marks omitted.) Housing Authority v. DeRoche, 112 Conn. App. 355, 361-62, 962 A.2d 904 (2009).

Section 47a-15 generally provides for an abatement period in which the tenant can correct defects in behavior or in the premises. No such opportunity is required when the tenant has committed a “serious nuisance.” Section 47a-15 defines four distinct categories of serious nuisance, including subparagraph (A), which the court found proved, and subparagraph (C), which was charged in the notice to quit.

Serious nuisance can be committed in one of four ways. See General Statutes § 47a-15. There must be sufficient information in the notice to quit to allow the defendant to defend against the action. Housing Authority v. DeRoche, supra, 112 Conn. App. 361-62. The notice to quit in this case refers only to the defendant’s engaging in conduct that presents an immediate danger to other tenants or the landlord. See General Statutes § 47a-15 (C). The court’s judgment in favor of the plaintiff, however, rested on the conclusion that the defendant threatened to inflict bodily harm pursuant to § 47a-15 (A). The court has no jurisdiction to evict on a ground other than one charged in the notice to quit. See Vogel v. Bacus, 133 Conn. 95, 97-98, 48 A.2d 237 (1946); see also Kapa Associates v. Flores, 35 Conn. Sup. 274, 277, 408 A.2d 22 (1979). Accordingly, the discrepancy deprived the defendant of notice of the claims to be addressed by the court. Because the notice to quit specifically referred to § 47a-15 (C), and it is the notice to quit which confers subject matter jurisdiction; see Kapa Associates v. Flores, supra, 277; HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 654, 792 A.2d 165 (2002); the court did not have subject matter jurisdiction to render judgment pursuant to § 47a-15 (A).

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss and to render judgment thereon.

In this opinion the other judges concurred.

       General Statutes § 47a-15 provides in relevant part: “Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed ... to evict based ... on conduct by the tenant which constitutes a serious nuisance . . . the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. . . . For the purposes of this section, ‘serious nuisance’ means . . . (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord . . . .”

       The defendant also claims that the proof offered by the plaintiff was insufficient to support the court’s finding that her conduct constituted a serious nuisance under either § 47a-15 (A) or (C). We conclude that the court lacked subject matter jurisdiction to render judgment pursuant to § 47a-15 (A) because that subsection was not a ground stated in the notice to quit; therefore, we need not address this argument.

       The court granted the plaintiff possession of the defendant’s apartment. The defendant has remained in the apartment during the pendency of this appeal.

       The notice to quit possession stated that the defendant’s lease would terminate on June 17, 2008 for the following reason: “Serious nuisance. Specifically, violation of [§] 47a-15 (c) ‘conduct which presents an immediate and serious danger to the safety of other tenants or the landlord.’ On May 30, 2008, you went to the on-site property management office (Manchester, CT) and threatened to kill the owner. Later the same day, you went to the off-site property management office (East Hartford, CT) and again threatened to kill the owner. You were arrested while attempting to enter the East Hartford Office.”

       General Statutes § 47a-15 provides in relevant part,: “For the purposes of this section, ‘serious nuisance’ means (A) inflicting bodily harm upon another tenant or the landlord or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out . . . .”

       The plaintiff argues that a violation of § 47a-15 (A) is more serious than a violation of § 47a-15 (C). The elements needed to establish a violation of § 47a-15 (C) are not entirely included within those needed to establish a violation of § 47a-15 (A).

       Because of our conclusion that the court lacked subject matter jurisdiction to render a decision pursuant to § 47a-15 (A), we need not reach the defendant’s next argument that the court erred in granting the plaintiff relief based on a claim that was not pleaded.


author: ROBINSON, J.

text:
    LUCIS RICHARDSON v. COMMISSIONER OF CORRECTION
    (AC 30447)
    Flynn, C. X, and Robinson and Carroll, Js

      Argued January 11
    officially released August 17, 2010

      Lawrence S. Dressier, special public defender, for the appellant (petitioner).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Erika L. Brookman, deputy assistant state’s attorney, and Jessica Probolus, special deputy assistant state’s attorney, for the appellee (respondent).

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

   Opinion

ROBINSON, J.

The petitioner, Lucis Richardson, following a grant of certification to appeal by the habeas court, appeals from the judgment of the court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying his habeas petition because his trial counsel had provided him with ineffective assistance. We conclude that the petitioner did not adequately brief his claim and, accordingly, affirm the judgment of the habeas court.

This court’s decisions in the petitioner’s previous direct appeals provide the necessary factual background for the present case. In the early hours of February 24, 1996, the petitioner was involved in the attempted robbery of a Hartford taxicab driver that left the driver dead from multiple stab wounds to the chest. Later that day, after assurances from the police that he was not a suspect but merely a witness, the petitioner accompanied two officers to the police station. There, he gave an oral statement in which he implicated two individuals as the perpetrators of the robbery attempt. At some point during that evening, the petitioner’s statement was reduced to writing by the officers and signed by the petitioner. At about 11 p.m., he was taken home by the police. His statements were not preceded by any Miranda warnings. On February 29, 1996, the petitioner waived his Miranda rights and gave a fully voluntary statement to the police, in which he confessed to his involvement in the crime. See State v. Richardson, 66 Conn. App. 724, 729-30, 785 A.2d 1209 (2001).

The petitioner was charged with felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-49 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-48 (a). Prior to trial, the petitioner filed a motion to suppress all of his oral and written statements, which the court denied at the pretrial suppression hearing. After a jury trial, the petitioner was acquitted of the charge of robbery in the first degree and found guilty of attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree. The court declared a mistrial as to the felony murder charge. On March 2,1999, the petitioner was sentenced to thirty-seven years imprisonment. On appeal, this court affirmed the petitioner’s conviction. See id.

After being retried on the felony murder charge, the petitioner was found guilty on October 4, 2002. The petitioner again filed a motion to suppress his statements to the police, which the court denied. He was sentenced to fifty years imprisonment to run concurrently with his previous sentence. On appeal, this court affirmed the petitioner’s conviction. See State v. Richardson, 86 Conn. App. 32, 860 A.2d 272 (2004), cert. denied, 273 Conn. 907, 868 A.2d 748, cert. denied, 545 U.S. 1107, 125 S. Ct. 2550, 162 L. Ed. 2d 281 (2005).

The petitioner was represented at the 1996 suppression hearing by attorney Kevin Randolph. Randolph testified that his theory at the suppression hearing was that the petitioner had not been advised of his Miranda rights, and, therefore, his confession was not knowing and voluntary. Further, Randolph testified that he did not request the petitioner’s school records evincing his disability because it would not have contributed to Randolph’s theory.

“In its oral memorandum of decision [on the motion for suppression], the court made only limited factual findings and, although the court did not explicitly conclude that the [petitioner] was not in custody at the time that he made the statements, that determination is implicit in light of the fact that the court denied his motion to suppress. At trial, the state introduced both the [petitioner’s] February 24 and February 29 statements, and the testimony of [Danixsa] Sanchez and [Phillip Milling, who were with the petitioner during the evening before the robbery] as part of its case-in-chief.” State v. Richardson, supra, 66 Conn. App. 730.

On December 1, 2006, the petitioner filed a second amended petition for a writ of habeas corpus, following his original August 25, 2005 petition, claiming that he had received ineffective assistance of trial counsel. On October 3, 2008, the habeas court denied the petition. On October 6, 2008, the petitioner filed a petition for certification to appeal, which was granted. This appeal followed.

The petitioner claims that the court abused its discretion in denying his habeas petition because it improperly concluded that he failed to demonstrate that his trial counsel provided him with ineffective assistance. The petitioner specifically claims that Randolph provided him with ineffective assistance by failing to present evidence of the petitioner’s mental disabilities at the suppression hearing. The petitioner argues that his waiver of his Miranda rights was not knowing and voluntary because of his low intelligence and reading and auditory comprehension disabilities. We decline to review this claim due to an inadequate brief.

“[Reviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, 117 Conn. App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010).

“To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” Morant v. Commissioner of Correction, 117 Conn. App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Emphasis added; internal quotation marks omitted.) Morant v. Commissioner of Correction, supra, 301.

In his brief, the petitioner offers only case law in which a defendant’s confession was found not to be knowing and voluntary due to the defendant’s brain injury; see United States v. Timbana, 222 F.3d 688 (9th Cir.), cert. denied, 531 U.S. 1028, 121 S. Ct. 604, 148 L. Ed. 2d 516 (2000); and argues that his mental state and confession in the present case are analogous. This hints at the possibility that trial counsel’s performance was deficient for not presenting this argument. The petitioner fails, however, to analyze why this falls below an objective standard of reasonableness required to show deficient performance by counsel. See Strickland v. Washington, supra, 466 U.S. 688. Further, the petitioner offers only a conclusory assertion that he satisfied the prejudice prong of the Strickland test without any analysis as to how he was prejudiced by the admission of his confession. We, therefore, decline to consider this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The court denied the motion to suppress, finding that a second evidentiary hearing on the motion to suppress was barred by the principle of res judicata.

       Randolph was practicing law as an attorney in 1996 when the petitioner’s pretrial motion to suppress was heard. Subsequently, he was appointed a judge of the Superior Court.

       The petitioner withdrew his initial petition without prejudice so that he could combine and address in one petition his convictions of attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree and felony murder.


text:
    ANTHONY JONES v. COMMISSIONER OF CORRECTION
    (AC 30551)
    Robinson, Bear and Mihalakos, Js.
    Argued June 4
    officially released August 17, 2010

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

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Anthony Jones, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus, which alleged that his trial counsel rendered ineffective assistance by failing to seek a judgment of acquittal on the ground that there was insufficient evidence to establish that the petitioner lacked a valid pistol permit. We dismiss the appeal.

The following facts underlie the allegations of the petition for a writ of habeas corpus. In the early morning hours of March 27, 2000, the petitioner was arrested following a motor vehicle pursuit by New Haven police officers. State v. Jones, 96 Conn. App. 634, 636-38, 902 A.2d 17, cert. denied, 280 Conn. 919,908 A.2d 544 (2006). “At the time the [petitioner] was apprehended, the officers found two Ruger .357 magnum pistols in the vehicle he had been driving, one located on the floor behind the driver’s seat, and the other on the floor behind the front passenger’s seat.” Id., 638. Following his arrest, the petitioner was charged with two counts of attempt to assault a peace officer in violation of General Statutes §§ 53a-167c (a) (1) and 53a-49 (a), and one count of possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. Id. A jury found the petitioner guilty of one count of attempt to assault a peace officer and possession of a weapon in a motor vehicle. Id. The petitioner received a sentence of fourteen years incarceration. Id. His conviction was upheld on direct appeal. Id., 645.

In his direct appeal, the petitioner claimed that the trial court had abused its discretion by permitting the state to open its case, after the petitioner had rested, “to offer additional evidence regarding the charge of possession of a weapon in a motor vehicle.” Id., 641. This court rejected the petitioner’s claim. Id.

“As part of the state’s case-in-chief, [Officer Edwin] DeJesus testified that he had determined that neither the [petitioner] nor his passenger had a pistol permit. On October 15, 2002, the state rested its case, after which the [petitioner] moved for a judgment of acquittal on all counts. As to the possession of a weapon in a motor vehicle count, he claimed that the state had failed to prove that he knew that a weapon was in the car. He did not, however, challenge the adequacy of the state’s evidence regarding whether he had a permit for the weapon. The court denied the motion for acquittal.

“After the defense rested its case, the state moved to open the evidence to present two witnesses to testify that the [petitioner] did not have a pistol permit from the city of New Haven or the state of Connecticut. The prosecutor stated that he had planned to call the witnesses in his initial presentation of evidence but had inadvertently failed to do so. The [petitioner] objected to the motion to open, arguing that he would be prejudiced if the state were permitted to establish an essential element of the offense once the state had rested its case-in-chief. During argument on this point, defense counsel acknowledged that one officer had testified that there were no pistol permits relating to the [petitioner] and that, for this reason, he had not included the absence of evidence of permits as a basis for his motion for a judgment of acquittal. Nevertheless, defense counsel argued that the proposed testimony would bolster the testimony that had already been adduced, prejudicially highlighting it to the jury.” Id., 641-42.

The trial court granted the motion to open and permitted the state to present the testimony of two more witnesses. Id., 642. The court did so after reviewing the evidence in the state’s case-in-chief and reviewing the law. Id., 642 n.5. The court stated: “And I should make it perfectly clear that this was not an evidentiary gap, that was raised by the defense or pointed out by the defense and, after having looked at State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987) [permitting state to open case-in-chief after defendant identified shortcomings in evidence fundamentally unfair and abuse of discretion], and State v. Nelson, 17 Conn. App. 556, 555 A.2d 426 (1989) [state required to prove defendant did not have proper permit from state or town], the court is going to exercise its discretion and allow the state to put on those witnesses.” (Internal quotation marks omitted.) State v. Jones, supra, 96 Conn. App. 643 n.5.

“The decision to open a criminal case to add further testimony lies within the sound discretion of the court, which should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Id., 643. This court concluded, on the basis of the record, that “the state presented testimony in its case-in-chief that the [petitioner] had no permits. The evidence proffered on the opening of the state’s case was cumulative, although more specific. In permitting the state to open the evidence for this limited purpose, the court properly exercised its discretion.” Id.

In his direct appeal, the petitioner also claimed that his “trial counsel’s failure to move for a judgment of acquittal on the charge of possession of a weapon in a motor vehicle on the basis that there was insufficient evidence to establish that the [petitioner] lacked a permit constituted [the] ineffective assistance of counsel.” Id., 644. This court declined to review the claim, noting that such claims generally are brought in a petition for a writ of habeas corpus and that the record was inadequate. Id., 645. This court noted, however, that “the record reveals only that defense counsel opted not to challenge the adequacy of the state’s evidence regarding the lack of a permit because there was testimony from DeJesus stating that he had conducted a check that revealed that the [petitioner] did not have a permit.” Id.

In his petition for a writ of habeas corpus, the petitioner alleged that he was denied the effective assistance of counsel. “In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for defense counsel’s deficient representation, the result of the proceeding would have been different.” (Internal quotation marks omitted.) DuPerry v. Kirk, 90 Conn. App. 493, 503, 877 A.2d 928 (2005), cert. denied, 277 Conn. 921, 895 A.2d 795 (2006).

At the habeas trial, the petitioner presented expert testimony from attorney Jeffrey Beck. Beck opined that the state had presented insufficient proof of the lack of a permit for the pistol during its case-in-chief and that defense counsel should have moved for a judgment of acquittal due to insufficient evidence—not as to whether the petitioner knew of the presence of the pistol but, rather, as to whether the petitioner had either a local or a state permit.

Defense counsel testified at the habeas trial that DeJesus had testified that he had done a permit check with respect to the petitioner and found that the petitioner had no pistol permit. See footnote 2 of this opinion. In moving for a judgment of acquittal, defense counsel’s strategy was to show that the pistols in the motor vehicle belonged to a third party and that the petitioner’s codefendant was to testify that the weapons belonged to a person known as “Ron.” Defense counsel did not challenge the lack of a permit element of § 29-38 because he believed the state had satisfied proof of that element with DeJesus’ testimony. Defense counsel objected to the state’s motion to open the evidence on the basis that additional evidence would be cumulative and would highlight for the jury the lack of a permit for the pistol.

The habeas court noted that to convict the petitioner of possession of a weapon in a motor vehicle, the state had to produce evidence that he did not have a permit for the weapon. At trial, the prosecutor asked DeJesus whether he had investigated whether the petitioner had a permit for the weapon. DeJesus had conducted such an investigation and found no permits in the petitioner’s name. The habeas court recognized that although DeJesus’ testimony was vague; see footnote 2 of this opinion; it was sufficient evidence on the question of a permit to allow the issue to go to the jury. At the time the trial court was ruling on the petitioner’s motion for a judgment of acquittal, the issue was whether “the state had failed to prove that he knew that a weapon was in the car;” State v. Jones, supra, 96 Conn. App. 642; not whether DeJesus’ testimony proved beyond a reasonable doubt that the petitioner did not have a permit. The habeas court cited this court’s opinion in the petitioner’s direct appeal that the evidence presented after the trial court had granted the state’s motion to open was cumulative. The habeas court concluded that the petitioner, therefore, was not prejudiced by his trial counsel’s failure to argue that the state had presented insufficient evidence as to the element of a permit when seeking a judgment of acquittal.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision 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. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [rjeversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 96 Conn. App. 26, 30, 898 A.2d 838, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006).

On the basis of our review of the record and this court’s decision in State v. Jones, supra, 96 Conn. App. 634, we conclude that the habeas court did not abuse its discretion in denying the petitioner certification to appeal. In the petitioner’s direct appeal, this court determined that the trial court did not abuse its discretion when it granted the state’s motion to open its case, as the record demonstrated that the state had presented sufficient evidence that the petitioner did not have a pistol permit to present the issue to the jury. The habeas court was bound by that factual conclusion arrived at in the petitioner’s direct appeal. See id., 643; see also DuPerry v. Kirk, supra, 90 Conn. App. 507 (second habeas court relied on factual finding of prior habeas court, which petitioner did not challenge). The question of whether the petitioner’s trial counsel rendered ineffective assistance by failing to argue in his motion for a judgment of acquittal that the state had failed to present sufficient evidence on the element of the permit, therefore, is not an issue debatable among jurists of reason, that a court could resolve the issue in a different manner or that the questions are adequate to deserve encouragement to proceed further.

Moreover, the habeas court noted the testimony of defense counsel that he predicated the motion for a judgment of acquittal on the knowledge element of § 29-38 and was prepared to present evidence on that issue. Defense counsel was mindful of DeJesus’ testimony regarding permits. The habeas court also found that Beck testified that sometimes defense counsel does not advance claims attacking the absence of proof on every element of a crime and that it is a matter of trial tactics within the decision-making authority of defense counsel.

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy. ” (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009). On the basis of our review of the record, we cannot conclude that the habeas court abused its discretion in denying certification to appeal on the basis of defense counsel’s trial strategy, particularly in view of Beck’s testimony.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 29-38 (a) provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by such person, any weapon, any pistol or revolver for which a proper permit has not been issued as provided in section 29-28 . . . shall be fined ... or imprisoned . . . .”
      General Statutes § 29-28 (b) provides in relevant part: “Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority, such chief of police, warden or selectman may issue a temporary state permit to such person to carry a pistol or revolver within the state .... Upon issuance of a temporary state permit to the applicant, the local authority shall forward the original application to the commissioner. . . . Said commissioner may . . . issue, to any holder of any temporary state permit, a state permit to carry a pistol or revolver within the state. ...” Although § 29-28 was amended in 2001, 2005 and 2007; see Public Acts 2001, No. 01-130, § 4; Public Acts 2005, No. 05-283, § 4; and Public Acts 2007, No. 07-163, § 2; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.

       At the petitioner’s criminal trial, the prosecutor questioned DeJesus in part as follows:
      “[The Prosecutor]: . . . Did you conduct a check as to whether or not the [petitioner] or his passenger had a pistol permit?
      “[The Witness]: Yes.
      “[The Prosecutor]: And what was the result of that check?
      “[The Witness]: He had no permit for a pistol.
      “[The Prosecutor]: Due to the fact that they had no pistol permits, did you place both individuals under arrest?
      “[The Witness]: Correct.”


author: BEAR, J.

text:
    BARBARA O. MURPHY ET AL. v. EAPWJP, LLC, ET AL.
    (AC 31257)
    DiPentima, C. J., and Bear and PeUegrino, Js.

      Argued May 17
    officially released August 17, 2010

      Thomas P. Moriarity, for the appellant (named defendant).

      John R. FitzGerald, for the appellees (plaintiffs).

      Edward B. O’Connell, for the appellees (defendant Steven Dodd et al.).
   Opinion

BEAR, J.

The defendant EAPWJP, LLC (EAP), appeals from the judgment of the trial court recognizing the acquisition of a prescriptive easement over aportion of its property for beach access by the plaintiffs and finding that EAP had failed to prove that the placement and maintenance of mooring poles in the water below the mean high tide line of White Beach in Stonington by several of the plaintiffs was a public nuisance. EAP also appeals from the judgment, which recognized the acquisition of a prescriptive easement over a portion of its property for beach access and an implied easement over an undeveloped street known as Midway, in favor of the defendants Steven Dodd and Marion Dodd. On appeal, EAP claims that the court improperly (1) recognized the acquisition of the prescriptive easement in favor of the plaintiffs and the Dodds, (2) concluded that the plaintiffs’ placement and maintenance of mooring poles did not constitute a public nuisance, (3) concluded that the plaintiffs’ placement and maintenance of the mooring poles was not a trespass, and (4) recognized an implied easement over Midway in favor of the Dodds. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of EAP’s claims on appeal. The parties reside in the White Beach section of Lord’s Point in Stonington. EAP’s property includes a portion of White Beach. The properties belonging to the plaintiffs and the Dodds do not include frontage on White Beach. For many years, there existed a wooden boardwalk or walkway (wooden walkway) over a portion of EAP’s property that the plaintiffs and the Dodds maintained and used to access White Beach. No one had obtained permits from the department of environmental protection (department) to maintain this wooden walkway that, allegedly, was in violation of General Statutes §§ 22a-32 and 22a-361 and adversely impacted tidal wetlands vegetation. The principal of EAP, William Pasqualini, Sr., or his designees removed the wooden walkway and told the plaintiffs and the Dodds that they could no longer access White Beach by means of EAP’s property. Additionally, the plaintiffs Barbara O. Murphy, Bruce Jablonski, Geoffrey B. Cork-hill and Aline T. Pollard, as well as others who were not parties to this case, had kept and maintained mooring poles on EAP’s beachfront above the mean high tide line prior to April, 2007. In April, 2007, however, these poles were moved to a location below the mean high tide line at White Beach, and the harbormaster issued permits for them.

On or about May 8, 2007, the plaintiffs brought this action against EAP and the Dodds, seeking, inter alia, a prescriptive easement over a portion of EAP’s property to access White Beach for recreational activities including swimming, boating, bathing and for the maintenance of mooring poles for boats. EAP filed special defenses to the plaintiffs’ claim, which included a claim that the plaintiffs’ use of its property was permissive, that the plaintiffs could not have acquired an easement over the wooden walkway because the walkway was in violation of §§ 22a-32 and 22a-361 and was destroying tidal wetlands vegetation, and that the mooring poles were a public nuisance.

The Dodds filed a cross claim against EAP seeking, in relevant part, a prescriptive easement over a portion of EAP’s property for access to White Beach and seeking an implied easement over Midway. They claimed that the implied easement was by virtue of the 1927 Perry Plan. EAP pleaded two special defenses to the Dodds’ cross claim. The first special defense alleged that the Dodds’ use of the property to access White Beach was permissive, and the second special defense alleged that the Dodds could not acquire an easement over the area of the wooden walkway because that walkway was in violation of §§ 22a-32 and 22a-361.

On the basis of the evidence submitted at trial, the court concluded, in relevant part, that the Dodds and the plaintiffs had acquired a prescriptive easement over a portion of EAP’s land that gave them access to White Beach (pathway) and that the Dodds had acquired an implied easement over Midway by virtue of the 1927 Perry Plan. The court also concluded that Murphy, Jablonski, Corkhill and Pollard had a right to keep and to maintain the mooring poles for which permits had been issued by the harbormaster. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, EAP first claims that the court improperly concluded that the plaintiffs and the Dodds “had established a prescriptive easement over a pathway to White Beach.” EAP does not challenge the factual findings of the court that the use was open, notorious and under a claim of right for more than a fifteen year period. Rather, EAP argues that the plaintiffs and the Dodds always had traveled the pathway to the beach by means of the wooden walkway that crossed over and negatively impacted tidal wetlands and, because the wooden walkway had been constructed and maintained without obtaining the necessary permits in violation of §§ 22a-32 and 22a-361, it could not have formed the basis for the acquisition of a prescriptive easement over the pathway, a property right. We conclude that the court properly held that the plaintiffs and the Dodds had acquired a prescriptive easement over the pathway for access to White Beach.

The plaintiffs assert that our review of EAP’s claim is pursuant to the abuse of discretion standard, EAP asserts that our review is plenary, and the Dodds assert that our standard of review is the clearly erroneous standard. Because of the nature of EAP’s claim, we conclude that this issue presents a question of law, over which our review is plenary. See Frech v. Piontkowski, 296 Conn. 43, 49, 994 A.2d 84 (2010) (applying plenary review to claim that abutting landowner, as matter of law, could not acquire prescriptive easement for recreational purposes with respect to non-navigable body of water).

“[General Statutes §] 47-37 provides for the acquisition of an easement by adverse use, or prescription. That section provides: No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years. In applying that section, this court repeatedly has explained that [a] party claiming to have acquired an easement by prescription must demonstrate that the use [of the property] has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.” (Internal quotation marks omitted.) Id.

In this case, EAP repeatedly argues that the plaintiffs and the Dodds could not acquire a property right by means of the wooden walkway over the pathway that they or their predecessors constructed and maintained without department approval in violation of §§ 22a-32 and 22a-361 and that the court improperly held that they could acquire such rights. It also argues that the use of the unapproved wooden walkway over the pathway created a public nuisance and that “one cannot acquire a prescriptive right to maintain a nuisance.” (Internal quotation marks omitted.) We are not persuaded.

The court agreed with EAP that the wooden walkway violated §§ 22a-32 and 22a-361 and that it was the plaintiffs and the Dodds who had maintained, modified and replaced the wooden walkway over the years without the necessary permits. The court recognized, however, that the plaintiffs and the Dodds made no claim in the litigation that they had a right to reconstruct or to maintain the wooden walkway over the pathway. Rather, they claimed a prescriptive easement over a portion of EAP’s land, consisting of the pathway that gave them access to White Beach. Although the court concluded that the plaintiffs and the Dodds had no right to maintain the wooden walkway over the pathway, it further concluded that they did have a right to continue to use the pathway: “The plaintiffs shall have the rights to maintain and improve the [pathway] as reasonably necessary for the enjoyment of its intended purpose, subject to whatever regulation, if any, may be imposed by a governmental authority hav[ing] jurisdiction over such activity. No rights are established in favor of the plaintiffs as to the unauthorized wooden walkway, which has since been removed.”

We agree with the court. Although it appears that the wooden walkway had not been authorized by the department, that does not negate the rights of the plaintiffs and the Dodds to cross the land owned by EAP; their prescriptive easement is over a specific portion of EAP’s land—it is not limited by, or dependent on, the wooden walkway that was built on the land. EAP makes no claim that the plaintiffs’ and the Dodds’ use of the pathway amounts to a nuisance; therefore, we need not address the issue further.

II

EAP next claims that the court improperly concluded that the plaintiffs’ use and maintenance of mooring poles in the water below the mean high tide line of EAP’s beach did not constitute a public nuisance. It argues that there was evidence that some of the mooring poles were rusting and that they could break, leaving jagged and dangerous edges in the water, which could endanger members of the public who might be swimming in the area. The plaintiffs argue that these poles are below the mean high tide line, on property owned by the state, and that they have been issued permits from the harbormaster. Accordingly, they argue that the court was correct in finding no credible evidence of a public nuisance. We agree with the plaintiffs.

The record reveals the following additional facts relevant to EAP’s claim. From 1968 through April, 2007, Murphy, Pollard, Jablonski, Corkhill, their predecessors, and other persons not parties to this appeal maintained clothesline mooring poles on EAP’s beach above the mean high tide line. No permits for these mooring poles had been obtained from the department or from the harbormaster. In total, there were eleven mooring poles located on EAP’s beach above the mean high tide line. In or about April, 2007, Murphy, Pollard, Jablonski, Corkhill and seven other persons obtained permission from the harbormaster to install new mooring poles in the water seaward of the mean high tide line of White Beach. The harbormaster subsequently issued permits for the installations.

“[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87, 931 A.2d 237 (2007).

Our Supreme Court has explained and discussed the law of public nuisance as follows: “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance. W. Prosser & W. Keeton, [Torts (5th Ed. 1984)] § 86, p. 616. This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages. . . . Walsh v. Stonington Water Pollution Control Authority, [250 Conn. 443, 449 n.4, 736 A.2d 811 (1999)], quoting Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987); see also Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972). These elements developed through a long line of cases that can be described best as public nuisance cases. See, e.g., DeLahunta v. Waterbury, 134 Conn. 630, 631, 59 A.2d 800 (1948) (passengers in automobile brought nuisance action for damages against defendant municipality for injuries sustained when car in which they were riding struck concrete traffic stanchion installed by defendant); Prifty v. Waterbury, 133 Conn. 654, 655, 54 A.2d 260 (1947) (plaintiffs brought nuisance claim against defendant municipality for injuries sustained by child when ornamental cannon in public park fell); Hoffman v. Bristol, 113 Conn. 386, 387, 155 A. 499 (1931) (plaintiff brought nuisance claim against defendant municipality seeking to recover for injuries sustained from jumping off diving board in shallow water at pond owned and maintained by defendant).” (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355-56, 788 A.2d 496 (2002).

“Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety. See, e.g., Keeney v. Old Saybrook, 237 Conn. 135, 162-63, 676 A.2d 795 (1996) (public nuisance law encompasses conduct detrimental to public health and safety); Beckwith v. Stratford,, 129 Conn. 506, 507, 29 A.2d 775 (1942) (plaintiff brought nuisance action against defendant municipality for injuries sustained in fall allegedly caused by defectively constructed sidewalk).” Pestey v. Cushman, supra, 259 Conn. 357.

In footnote 5 of the Pestey decision, our Supreme Court referred to the Restatement (Second) of Torts’ definition of public nuisance: “Section 821B of the Restatement (Second) of Torts defines a public nuisance as ‘an unreasonable interference with a right common to the general public.’ See State v. Tippetts-Abbett-McCarthy-Stratton, supra, 204 Conn. 183. Whether an interference is unreasonable in the public nuisance context depends, according to the Restatement (Second), on ‘(a) [wjhether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] 4 Restatement (Second) [Torts] § 82 IB [1979]. The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake. Id., § 821D, comment (c).” Pestey v. Cushman, supra, 259 Conn. 356 n.5; see also Boyne v. Glastonbury, 110 Conn. App. 591, 606-607, 955 A.2d 645, cert, denied, 289 Conn. 947, 959 A.2d 1011 (2008). “[I]t is undisputed . . . that a private individual may create a nuisance in a public place . . . .” Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943).

In count two of its counterclaim, EAP alleged in relevant part: “ [T]he mooring poles have a natural tendency to create danger and inflict injury on persons using the beachfront water of [EAP’s] property because the poles rust and break off and become jagged and often [are] not visible. Persons swimming or wading in these waters are likely to be stabbed, impaled, and or otherwise injured by these metal poles posing an unreasonable risk to the health and safety of those persons swimming or wading in the waters.” The court found that the harbormaster had issued permits for the use and maintenance of the mooring poles and that there was no evidence that the general public ever used this beach area.

On appeal, EAP argues that the mooring poles posed a significant threat to the public and that it was of no moment that there was little or no evidence that the public actually used the waters off White Beach. Our own review of the record supports the court’s conclusion that EAP did not prove that the mooring poles were a public nuisance.

“[I]t is uniformly held that a private individual has no action for the invasion of the purely public right, unless his damage is in some way to be distinguished from that sustained by other members of the general public. It is not enough that he suffers the same inconvenience or is exposed to the same threatened injury as everyone else. Redress of the wrong to the community must be left to its appointed representatives. . . . There is general agreement on the requirement that the plaintiffs damage be different in kind, rather than in degree, from that shared by the general public; and that, for example, the fact that the plaintiff has occasion to use a highway or a navigable stream five times as often as anyone else gives him no private right of action when it is obstructed. One good reason for such a conclusion is the extreme difficulty of fixing any lines of demarcation in terms of ‘degree’ of public damage, since anyone who uses the highway or stream at all will obviously suffer greater inconvenience than one who does not use it.” W. Prosser & W. Keeton, supra, § 90, pp. 646-47. “The activity [alleged to be a public nuisance] although injurious to the plaintiff, may be justified by statute or regulation. In such case, the act is privileged and therefore nonactionable as a public nuisance.” 1 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 9:08, p. 9-16.

Here, beginning in April, 2007, the plaintiffs’ mooring poles were located seaward of the mean high tide mark, on property owned by the state, adjacent to EAP’s property, and the harbormaster had issued permits for each of those poles. The poles, therefore, cannot be considered a public nuisance. See id.

III

EAP next claims that the court improperly concluded that “the plaintiffs’ use of mooring poles adjacent to White Beach [was] not a trespass on [EAP’s] littoral rights.” It argues that “[t]here was substantial evidence in the record that the mooring poles can rust and break and pose a health and safety risk to [EAP], its members, family, guests and other members of the public .... The sheer volume of these poles interfere with navigable waters of [EAP] and the ability of [it] to use the waters for normal recreational activities . . . .” (Citations omitted.) The plaintiffs argue that EAP’s trespass claim did not allege any interference with its littoral rights and that no evidence was offered to demonstrate the extent of its littoral rights or the location of the area where such rights might lie. Furthermore, they argue, the court properly found that EAP had not sustained its burden of proof that the plaintiffs were committing a trespass by the maintenance of the mooring poles. We agree with the plaintiffs.

As previously set forth, our scope of review of the court’s factual findings is pursuant to the clearly erroneous standard; to the extent that we review conclusions of law drawn by the court, our review is plenary. See Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87.

“The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” (Internal quotation marks omitted.) Id. Additionally, an action for trespass may be maintained, in appropriate circumstances, to protect against the encroachment on littoral rights. See McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).

“In Connecticut, the public, whose representative is the [s]tate, is the owner of the soil between high and low-water mark upon navigable water where the tide ebbs and flows. The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland. He has the exclusive privilege of wharfing out and erecting piers over and upon such soil and of using it for any purpose which does not interfere with navigation .... He also has the right of . . . access by water to and from his upland. Ordinarily, [a person] would have no right, by the erection or maintenance of floats or piers extending in front of the [adjoining upland], to interfere with the [upland owner’s] right of access and his exclusive right of wharfing out.” (Citations omitted; internal quotation marks omitted.) McGibney v. Waucoma Yacht Club, Inc., 149 Conn. 560, 563, 182 A.2d 622 (1962).

“According to Connecticut common law, ownership of [the adjoining upland] extends to the high water mark on the shore. ... In addition, the owner of upland has certain rights to use the land between high and low water mark and the waters extending therefrom to the point where they become navigable.” (Citation omitted.) Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 597, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991); see also 78 Am. Jur. 2d 396, Waters § 38 (2002). “The riparian owner is also entitled to have his contact with the water remain intact. This is what is known as the right of access, and includes the right to erect wharves to reach the navigable portion of the [water].” (Internal quotation marks omitted.) New Jersey v. Delaware, 552 U.S. 597, 612, 128 S. Ct. 1410, 170 L. Ed. 2d 315 (2008), quoting 1 H. Farnham, Law of Waters and Water Rights § 62, p. 279 (1904). The rights of a riparian owner, however, “are always subordinate to the public rights, and the state may regulate their exercise in the interest of the public.” (Internal quotation marks omitted.) New Jersey v. Delaware, supra, 625 (Stevens, J., concurring in part and dissenting in part), quoting 1 H. Farnham, supra, § 63, p. 284. “[A] riparian proprietor . . . has the right of access to the navigable part of the [water] in front of his land, and to construct a wharf or pier projecting into the [water] . . . , subject to such general rules and regulations as the legislature may prescribe for the protection of the public . . . .” (Internal quotation marks omitted.) New Jersey v. Delaware, supra, 612, quoting Shively v. Bowlby, 152 U.S. 1, 40, 14 S. Ct. 548, 38 L. Ed. 331 (1894). “[I]t is clear that the rights of riparian landowners are ordinarily subject to regulation by [the] [s]tate. . . . [I]n the ordinary case, the [s]tate that grants riparian rights is also the [s]tate that has regulatory authority over the exercise of those rights . . . .” (Citations omitted; internal quotation marks omitted.) New Jersey v. Delaware, supra, 626 (Stevens, J., concurring in part and dissenting in part).

In this case, the court made very limited findings regarding EAP’s claim of trespass in relation to the mooring poles. Specifically, the court found: “With respect to the claim that the maintenance of the present permitted mooring poles constitutes a trespass on the littoral rights with respect to the waters off White Beach, [EAP] has not sustained [its] burden of proof. The original mooring poles have been removed from [EAP’s] land and located below the high water mark, and the new poles have been given permits by the harbormaster. Whatever the rights are as between the harbormaster and [EAP] are not determined here.” The harbormaster is not a party to this litigation.

EAP argues that “the [c]ourt seems to conclude that because the mooring poles were relocated from [EAP’s] land and were located below the mean high water mark with permits from the harbormaster, they cannot constitute a trespass on the defendant’s littoral rights. In this conclusion, the trial court erred.” Although we generally agree with EAP that the mere fact that the plaintiffs received permits from the harbormaster for the mooring poles does not mean, necessarily, that the poles do not encroach on EAP’s littoral rights; see generally Stefanoni v. Duncan, 282 Conn. 686, 696, 923 A.2d 737 (2007) (assistant attorney general’s opinion on legitimacy of permit granted by harbormaster to maintain floating dock based on erroneous information that there existed deeded riparian and littoral rights); we, nonetheless, cannot conclude, on the basis of the record before us, that the court improperly found that EAP did not sustain its burden of proof on this claim.

First, we do consider it important, as did the trial court, that the plaintiffs were issued permits from the harbormaster to maintain the four mooring poles at issue in this case. See generally Schuss v. Palmisano, 51 App. Div. 3d 766, 768, 857 N.Y.S.2d 709 (2008) (although plaintiff correctly noted that defendants had no riparian rights to water fronting plaintiffs property, defendants established prima facie case of entitlement as matter of law by proving they had building permit to install mooring pole at issue in case).

Second, in EAP’s counterclaim for trespass related to the mooring poles, it alleged that the plaintiffs had “reinstalled new mooring poles in the beachfront waters of [EAP’s] property [and that] . . . [EAP] notified the [plaintiffs] to remove the mooring poles because of the unreasonable health and safety risk they posed, yet the [plaintiffs] have failed and refused to do so.” EAP did not allege how the installation of the new mooring poles into state waters that were seaward of the high water mark was a trespass, nor did EAP specifically allege that the trespass was on EAP’s littoral rights. Additionally, a review of the record, including the trial transcripts, reveals nothing that would explain the extent of EAP’s littoral rights or how these four mooring poles, which had permits from the harbormaster, intruded on its littoral rights, causing injury to EAP. Accordingly, we conclude that the court properly found that EAP did not sustain its burden of proof on its trespass counterclaim.

IV

EAP finally claims that the court improperly concluded that “the Dodds have an implied easement over Midway by virtue of the Perry Plan.” EAP argues: “[T]here can be no implied easement over ‘Midway’ in favor of the Dodds because (1) when they bought the lot, they never intended or anticipated using ‘Midway’ as shown on the Perry Plan to get to the beach; and (2) access to the beach over ‘Midway’ as shown on the plan is not reasonably necessary or convenient for the use and enjoyment of the Dodds’ property.” The Dodds argue that the Perry Plan shows Midway as an area of common use and enjoyment, and, therefore, “an implied easement exists over [it].” We agree with the Dodds.

EAP contends that our standard of review is plenary. The Dodds contend that we should review the court’s findings under the clearly erroneous standard and that we then apply the abuse of discretion standard to the court’s conclusions. We acknowledge that case law setting forth our standard of review concerning implied easements, also known as easements by implication, at times, has been confusing. See Sanders v. Dias, 108 Conn. App. 283, 290, 947 A.2d 1026 (2008), vacated in part after remand, 120 Conn. App. 521, 992 A.2d 1141 (2010). As explained by our Supreme Court in McBurney v. Cirillo, 276 Conn. 782, 799, 889 A.2d 759 (2006), however: “The issue of whether a map creates an easement by implication is a question of law over which our review is plenary.”

“In Connecticut, it is well settled that a map may create an implied easement. . . . See [Fisk v. Ley, 76 Conn. 295, 56 A. 559 (1903)] (holding that Baker plan created implied easement in favor of rear lot owners); Pierce v. Roberts, 57 Conn. 31, 37, 17 A. 275 [1888] (construing map, in which open area was designated as [p]ark, to create implied easement); see also Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 116, 273 A.2d 880 (1970) (citing to Fisk and Pierce for the proposition that [i]t has long been the law in this state that when conveyances are made by reference to a map or plot, each grantee to whom the conveyance is made acquires a private right or easement in a park or other open area delineated on the map or plot). A description of the land conveyed that refers to a plat or map showing streets, ways, parks, open space, beaches, or other areas for common use or benefit, implies creation of a servitude restricting use of the land shown on the map to the indicated uses. ... 1 Restatement (Third), Property, Servitudes § 2.13, p. 172 (2000). The two common limitations on the general rule are that: (1) the grantor must have the power to convey the servitude; see Stankiewicz v. Miami Beach Assn., Inc., [191 Conn. 165, 464 A.2d 26 (1983)] (developer had no power to grant easements in subdivision roads after conveying title to roads to community association); and (2) an easement will not be implied if a different intent is expressed or implied by the circumstances. See 1 Restatement (Third), supra, § 2.13.” (Internal quotation marks omitted.) McBurney v. Cirillo, supra, 276 Conn. 802-803.

In this case, the court found: “The 1927 Perry Plan . . . show[s] White Beach and Midway as areas naturally to be expected to be for common use and enjoyment of lot owners. As such, an implied easement is found to exist over them in favor of the Dodds, whose title documents refer to that map or plan.” (Internal quotation marks omitted.) Our own review of the record supports the court’s conclusion.

The 1927 Perry Plan clearly shows Midway running from Oak Street to Lindberg Road. The 1983 certified lot survey conducted for William J. Pasquaiini, the principal of EAP, and recorded with the town clerk on July 21, 1983, shows Midway as an undeveloped street running off Oak Street. All of EAP’s title documents in the record refer to the 1927 Perry Plan. The Dodds’ title documents in the record also refer to the 1927 Perry Plan.

The 1927 Perry Plan shows individually numbered lots, Oak Street and Lindberg Road, with Midway connecting the two roads. A reasonable implication and perhaps the only rational view of the Perry Plan is that the intent of the grantor was to reserve that portion of the development for use as a connecting road or pathway. See McBurney v. Cirillo, supra, 276 Conn. 804. Accordingly, our own review of the record fully supports the court’s conclusion that the Dodds have an easement by implication over Midway.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in the case are Barbara O. Murphy, Bruce Jablonski, Geoffrey B. Corkhill, Aline T. Pollard and Donald L. Kooken.

       The plaintiffs who kept and maintained mooring poles are Barbara O. Murphy, Bruce Jablonski, Geoffrey B. Corkhill and Aline T. Pollard.

       The complaint also alleged that the plaintiffs had an easement over a triangular piece of land owned either by EAP or by the Dodds. The court found that this land was owned by the Dodds. That finding has not been challenged on appeal.

       The 1927 Perry Plan is an amended plat of the White Beach section of Lord’s Point, which was owned by James E. Lord in 1927 and recorded with the Stonington town clerk on October 25, 1930.

       EAP also argues that the court improperly ignored the public trust doctrine as explained in Leydon v. Greenwich, 257 Conn. 318, 332 n.17, 777 A.2d 552 (2001). The plaintiffs argue that Leydon made “clear [that] the land must be held by a governmental agency for use as a public park or beach [before the public trust doctrine can be applied].” We conclude that the public trust doctrine is not implicated on the facts alleged in this case. Furthermore, we note that EAP did not plead the applicability of this doctrine.
      In Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003), our Supreme Court explained that in Leydon it had clarified that “that term [public trust doctrine] traditionally has been used to refer to the body of common law under which the state holds in trust for public use title in waters and submerged lands waterward of the mean high tide line, and [it] distinguished [the public trust doctrine] from the common-law concept that land held by a municipality as a public park or public beach is for the benefit of all residents of this state.” (Internal quotation marks omitted.) Id., 484-85 n.4. “Under the public trust doctrine, members of the public have the right to access the portion of any beach extending from the mean high tide line to the water, although it does not also give a member of the public the right to gain access to that portion of the beach by crossing the beach landward of the mean high tide line. . . . Thus, the public trust doctrine does not support... [a] claim concerning [the] right of [a person] ... to gain unrestricted access to [the beach area] under that doctrine; he would not be permitted to gain access by way of the driftway, and his access would, in any event, be limited to that part of the beach waterward of the mean high tide line.” (Citations omitted.) Leydon v. Greenwich, supra, 257 Conn. 332 n.17.
      In the present case, BAP alleged that the public could be injured by the mooring poles if they broke. It did not allege, nor was there any evidence, that the mere existence of these poles substantially interfered with the public’s ability to access the water. Accordingly, the doctrine is not applicable on the facts of this case.

       Furthermore, to prove a public nuisance, EAP was required to demonstrate not only that the public suffered an unreasonable harm or inconvenience because of the actions of the plaintiffs, but that EAP also was harmed in a manner that was distinguishable from the harm suffered by other members of the general public. See W. Prosser & W. Keeton, supra, pp. 646-47. EAP alleged that the public was exposed to an unreasonable danger because the mooring poles could break and leave jagged edges, which could endanger swimmers. It further alleged that its members and guests could be harmed in the same manner and that its littoral rights were subject to substantial interference because of the existence of the mooring poles. These speculative allegations, however, fall short of what is necessary to prove a cause of action for public nuisance. In this case, assuming that an alleged interference with EAP’s littoral rights might be a harm distinguishable from the harm suffered by other members of the general public, EAP did not define the scope of its littoral rights, nor did it put on any evidence that would explain how the plaintiffs’ four mooring poles caused substantial interference with those rights.

        The court found that there was no credible evidence to support EAP’s allegations: “There was no evidence of injuries in the past although the court finds such poles to have been in use from before 1968. The evidence did show that there are now eleven (11) poles seaward of the high tide mark in front of EAP’s property, but only four (4) are owned by the plaintiffs .... How removal of the plaintiffs’ four (4) poles would alleviate the perceived injury to persons using the beach is not explained. There can be no doubt that the mooring poles could interfere with some types of activities that might be contemplated to be associated with beach front land. The determination of whether the interference is unreasonable, however, should be made in light of the fact that some level of interference is inherent in modern society. . . . Here, the court finds no credible evidence that EAP’s ervjoyment of its property is constricted because of the plaintiffs’ existing permitted four mooring poles. The maintenance and use by the plaintiffs seaward of the high tide mark is found not to be an unreasonable interference with EAP’s use and enjoyment of its property.” Our own review of the record supports these findings.