author: DRANGINIS, J.

text:
    WESTERN BOOT AND CLOTHING COMPANY, INC. v. L’ENFANCE MAGIQUE, INC.
    (AC 23771)
    Dranginis, DiPentima and Dupont, Js.

      Argued November 20, 2003 —
    officially released February 10, 2004

      David M. Wallman, for the appellant (defendant).

      Abram Heisler, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

In this summary process action, the defendant, L’Enfance Magique, Inc., appeals from the judgment of the trial court, denying its motion to open the default judgment rendered against it for failure to appear in a timely manner. On appeal, the defendant claims that the court lacked subject matter jurisdiction because the plaintiff had no standing to bring the action, as (1) it is not an owner or lessor pursuant to General Statutes § 47a-23 and (2) it is a stranger to the proceedings. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. In April, 1995, the defendant entered into a sublease with Western Boot and Clothing Company of Greenwich, Inc., the plaintiff, for certain premises located in Greenwich, which the plaintiff leased from the landlord under a “master lease” that was referenced in the parties’ sublease. On July 17, 2002, the plaintiff sent the defendant a notice to quit the premises for nonpayment of rent and thereafter commenced this summary process action. The defendant failed to appear. On August 23, 2002, the court granted the plaintiffs motion for default and rendered judgment of possession in the plaintiffs favor. On August 28, 2002, the defendant filed an appearance and a motion to open the default judgment.

On September 10, 2002, the parties entered into a stipulated agreement, in part, that the motion to open the judgment would be continued until October 1, 2002. The parties entered into another stipulation, agreeing that the motion to open the judgment would be continued until December 19, 2002, and that the defendant would make certain payments by December 10, 2002. The defendant failed to make the required payments, and the plaintiff filed an affidavit of noncompliance. Following a hearing, the court sustained the affidavit of noncompliance, denied the motion to open the judgment and rendered summary execution. The defendant appealed, and this court stayed the execution of the judgment while the appeal was pending.

It is well known that “because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999). A court does not have subject matter jurisdiction to hear a matter unless the plaintiff has standing to bring the action. Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). “In order for aparty to have standing to invoke the jurisdiction of the court, that party must be aggrieved. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit [in other words, statutorily aggrieved] or is classically aggrieved.” (Internal quotation marks omitted.) Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 288, 828 A.2d 52 (2003).

I

The defendant’s first claim is that the court lacked subject matter jurisdiction because the plaintiff, as a sublessor, may not avail itself of § 47a-23. Specifically, the defendant argues that the plaintiff, by definition, is not an owner or lessor. See General Statutes §§ 47a-23 and 47a-l. We disagree.

General Statutes § 47a-23 (a) provides in relevant part: “When the owner or lessor, or the owner’s or lessor’s legal representative . . . desires to obtain possession ... of any land or building ... (1) when a . . . lease of such property . . . terminates for . . . (E) nonpayment of rent when due for commercial property . . . such owner or lessor, or such owner’s or lessor’s legal representative . . . shall give notice to each lessee ... to quit possession . . . .” (Emphasis added.) General Statutes § 47a-l (e) provides in relevant part: “ ‘Owner’ means one or more persons, jointly or severally, in whom is vested ... (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises . . . .” The defendant argues that because § 47a-23 permits an owner or lessor to issue a notice to quit and the statutory definition of owner does not include a sublessor, the plaintiff lacks standing.

“Summary process is a special statutory procedure designed to provide an expeditious remedy.” Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 154, 176 A.2d 574 (1961) (applied to commercial sublease). It enables a landlord to obtain possession of leased premises without the delay associated with common-law actions. Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 530, 41 A.2d 109 (1945). Although our Supreme Court has stated that summary process statutes must be narrowly construed; Young v. Young, 249 Conn. 482, 488, 733 A.2d 835 (1999); we are mindful of the rules of statutory construction, particularly those that admonish us to avoid reaching an absurd result; see Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 758-59, 830 A.2d 711 (2003); and that the legislative scheme must be read “as a whole in order to give effect to and harmonize all of the parts. ” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 636, 583 A.2d 906 (1990). The overarching objective of statutory construction is to give effect to the legislative intent. See Johnson v. Mazza, 80 Conn. App. 155, 159, 834 A.2d 725 (2003).

Judges, like jurors, do not leave their common sense at the courthouse door. We take judicial notice that subleases are common in the world of commercial real estate. We do not believe that our legislature intended to give an owner and lessor, but not a sublessor, an expeditious means of obtaining possession of the premises from a commercial tenant for nonpayment of rent.

The defendant’s argument is misplaced further, as it overlooks subdivision (2) of § 47a-l (e), which provides in part that an owner is one who has a beneficial interest in the premises and the right to possession. A lease is a contract under which an exclusive possessory interest in property is conveyed. See Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 663-64, 368 A.2d 6 (1976). By virtue of its master lease with the landlord, the plaintiff had a beneficial interest in the premises.

For the foregoing reasons, we conclude that the plaintiff had standing to bring its summary process action against the defendant.

II

The defendant’s second claim is that the plaintiff had no standing to institute this action because it is a stranger to the proceeding. The claim lacks merit.

The following facts are relevant to our resolution of the defendant’s claim. The name of the plaintiff as it appears on the writ of summons and complaint is The Western Boot and Clothing Company, Inc. The name of the sublessor as it appears on the sublease is The Western Boot and Clothing Company of Greenwich, Inc. The notice to quit was issued by The Western Boot and Clothing Company of Greenwich, Inc. The defendant argues that because the name of the entity that issued the notice to quit is different from the plaintiff as identified on the writ of summons and complaint, the plaintiff has no standing to bring the action. The discrepancy, however, is a mere circumstantial defect and cannot defeat the plaintiffs cause of action.

“No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” General Statutes § 52-123. Section 52-123 is a remedial statute and therefore “must be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.) Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). Our Supreme Court has explained that “§ 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer ... in an original writ, summons or complaint.” Id., 396-97. When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error. Id., 400-401.

The defendant has raised its claim for the first time on appeal. Because the claim implicates the plaintiffs standing and, therefore, the court’s jurisdiction, it may be raised at any time. Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 127-28, 836 A.2d 414 (2003). The facts before us demonstrate, however, that the defendant was not prejudiced by the misnomer. It was not confused about the identity of the plaintiff and, in fact, it negotiated several stipulations with the plaintiff as a precondition to opening the default judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has not claimed that the court abused its discretion in denying the motion to open the judgment.

       The nomenclature of the plaintiff is addressed in part II.

       Although the term of the lease expired during the pendency of this appeal, the defendant remains in possession of the premises. The appeal, therefore, is not moot. Compare Castle Apartments, Inc. v. Pichette, 34 Conn. App. 531, 533, 642 A.2d 57 (1994); Evergreen Manor Associates v. Farrell, 9 Conn. App. 77, 78, 515 A.2d 1081 (1986).

       The defendant’s argument ignores the terms of the sublease into which it entered. Paragraph ten of the sublease states in relevant part: “This Sublease is and shall be subject and subordinate to the Master Lease. The provisions of the Master Lease are incorporated in this Sublease with the same force and effect as if such terms, covenants and conditions were set forth herein in full, provided that whenever the words ‘Landlord’, ‘Tenant’ and ‘Premises’ appear in the Master Lease, they shall be construed to mean ‘Sublessor’, ‘Sublessee’ and ‘Subleased Premises’, respectively, in this Sublease. ...”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LEON GREENE
    (AC 22703)
    Foti, West and McDonald, Js.

      Argued October 28, 2003 —
    officially released February 10, 2004

      Sheila A. Huddleston, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Leon Greene, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of nolo contendere to the charge of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (a). On appeal, the defendant claims that the court improperly denied his motion to dismiss and his motion to suppress certain information. In support of his claim, the defendant contends (1) that the information contained in the warrant application was both insufficient and stale, and therefore did not present a substantial factual basis to support the issuing judge’s determination that probable cause existed, and (2) that the court’s refusal to order the disclosure of the dates of the police informant’s controlled purchases of the narcotics at issue violated the defendant’s due process rights. We affirm the judgment of the trial court.

The following facts and procedural history are pertinent to our resolution of the defendant’s appeal. On December 27, 2000, Sergeant Frank Koshes and Sergeant Scott O’Connor of the Waterbury police department filed an affidavit and application for a warrant to search the home and person of the defendant at 38 Santoro Street in Waterbury. The affidavit contained the following relevant information. In September, 2000, a confidential, reliable informant advised the officers that the defendant and his neighbor, Alfonso Madrid of 40 Santoro Street, were partners in the business of selling crack cocaine. The informant stated that drugs were kept at both 38 and 40 Santoro Street, and that he had seen quantities for sale in both apartments. During the week of September 25, 2000, the informant advised the officers that the defendant had a supply of crack cocaine for sale. The informant met with the officers and was searched to ensure that he or she was not in possession of any narcotics or money. The informant was provided with Waterbury police funds to purchase drugs from the defendant in his home. Police surveillance was established outside of the defendant’s apartment. The informant entered the defendant’s apartment, purchased an undisclosed quantity of crack cocaine from the defendant and immediately returned to the officers with the drugs. During the week of December 23, 2000, the informant participated in a second controlled buy, this time in Madrid’s apartment. While the sale was taking place, the defendant entered Madrid’s apartment and provided additional crack cocaine to complete the transaction. That tip was corroborated by the fact that the surveillant officers witnessed the defendant leave his apartment and enter Madrid’s apartment while the informant was inside. Following the controlled buy in Madrid’s apartment, the informant reported that the defendant had a “stash” of crack cocaine for sale in his apartment as well. In addition to containing information about the two controlled buys, the application provided that within the first two weeks of December, 2000, the officers had received information from the New London police department that the defendant was bringing large amounts of cocaine from Waterbury to New London on a regular basis for distribution to New London narcotics dealers. The affiants, experienced narcotics investigators, also set forth their knowledge that in addition to drugs, narcotics dealers require cutting agents, scales, weapons, counter surveillance equipment and various other items to operate a narcotics distribution network effectively.

Upon presentation of the affidavit and application, a warrant was issued on December 27, 2000, to search the defendant and his home for narcotics and other specified items. The warrant was executed on December 28, 2000, and drugs, weapons and other items were seized from the defendant’s apartment. The defendant was arrested and charged by substitute information with one count of possession of narcotics with intent to sell in violation of § 21a-278 (a) and two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The court denied the defendant’s motion to suppress, and the state filed a second substitute information charging him with one count of possession of narcotics with intent to sell in violation of § 21a-278 (a). The defendant entered a plea of nolo contendere conditioned on his right to appeal pursuant to General Statutes § 54-94a and Practice Book § 61-6, and was sentenced to ten years imprisonment. This appeal ensued.

I

The defendant first claims that the court improperly denied his motion to suppress evidence obtained during the execution of the search warrant because the information contained in the warrant application was both insufficient and stale. We disagree.

Whether the court properly found that the facts submitted were enough to support a finding of probable cause is a question of law and is subject to plenary review on appeal. State v. Buddhu, 264 Conn. 449, 459, 825 A.2d 48 (2003). We uphold the validity of a search warrant if the affidavit at issue presented a substantial factual basis for the issuing judge’s conclusion that probable cause existed. State v. DeFusco, 224 Conn. 627, 642, 620 A.2d 746 (1993). The issuing judge is entitled to draw reasonable inferences from the facts presented. State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991). “When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant . . . should defer to the reasonable inferences drawn by the magistrate.” (Internal quotation marks omitted.) State v. Buddhu, supra, 459.

Probable cause to search exists if (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). In determining the existence of probable cause to conduct a search, the issuing judge assesses all of the information set forth in the warrant affidavit and should make a “practical, nontechnical decision whether there is a fair probability” that contraband or evidence of a crime will be found in a particular place. State v. Barton, 219 Conn. 529, 552, 594 A.2d 917 (1991). We view the information in the affidavit in the light most favorable to upholding the issuing judge’s determination of probable cause. State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992). “In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the issuing [judge’s] determination.” (Internal quotation marks omitted.) State v. Johnson, supra, 219 Conn. 565.

A

With regard to the defendant’s claim that the information in the warrant application was insufficient, his supporting arguments are threefold: (1) the warrant application did not provide details “of the sort typically included in affidavits,” including the price, quantity and location of the drugs; (2) the application did not establish that the informant had personal knowledge that the defendant had a “stash” of drugs in his apartment during the controlled buy in December, 2000, and (3) the issuing judge should not have considered the information obtained from the New London police department because it did not provide the basis of knowledge, nor did it indicate where in Waterbury the defendant allegedly was keeping the drugs.

We address the defendant’s supporting arguments in turn, viewing the allegations in the affidavit and all reasonable inferences drawn therefrom in the light most favorable to a finding of probable cause. See State v. Duntz, supra, 223 Conn. 216. With regard to the defendant’s first supporting argument, we look to what was, as opposed to what was not, included in the warrant affidavit. The affidavit alleged that the informant had purchased drugs on a prior occasion from the defendant in his apartment. The affidavit further provided that the informant had participated in a controlled buy, at which time he again purchased drugs from the defendant in his home while police officers monitored the apartment from the outside. Moreover, the affidavit provided that less than ten days before the issuance of the warrant, the informant had purchased drugs from both the defendant and Madrid in Madrid’s apartment during a second controlled buy. In the face of all of those representations, we conclude that the issuing judge’s finding of probable cause was not unreasonable simply because the affidavit did not state the price, quantity or location of the drugs. The three drug transactions between the informant and the defendant provided the issuing judge with a reasonable basis to infer that drugs would again be found on the person or in the apartment of the defendant.

We next address the defendant’s second and third supporting arguments that the issuing judge should not have considered the statements regarding the defendant’s “stash” of drugs and his drug business in New London. Regardless of whether the suspicions engendered by the tips would have independently justified the issuance of a warrant, “the magistrate was not required to disregard the tip[s] altogether, but could consider whether the tip[s] and the investigation together ‘bridged the gap’ between mere suspicion and probable cause.” State v. Johnson, supra, 219 Conn. 565. Consequently, we conclude that the inclusion in the warrant application of those two pieces of information did not render the probable cause finding per se unreasonable.

B

The defendant further argues that the warrant was invalid by asserting that the information contained in the warrant application regarding the two controlled buys was too remote in time from the actual search and was therefore stale. The defendant argues that due to the passage of time, there was no probable cause to believe that the items listed in the warrant would be found in his home or on his person on December 27, 2000. We disagree.

“The determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time. . . . Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable. . . . Consequently, whether a reasonable likelihood exists that evidence identified in the warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis.” (Internal quotation marks omitted.) State v. Buddhu, supra, 264 Conn. 465. “The likelihood that the evidence sought is still in place depends on a number of variables, such as the nature of the crime, of the criminal, of the thing to be seized, and of the place to be searched. . . . [W]hen an activity is of a protracted and continuous nature the passage of time becomes less significant.” (Internal quotation marks omitted.) Id., 465-66.

In this case, the information contained in the warrant affidavit regarding the two controlled buys was not so remote in time as to render a finding of probable cause unreasonable. The business of dealing in illegal drugs often involves a course of conduct that continues over a long period of time; State v. Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346, cert. granted on other grounds, 201 Conn. 808, 515 A.2d 380 (1986) (appeal withdrawn October 31, 1986); and is usually considered to be a regenerating activity. State v. Brown, 14 Conn. App. 605, 615, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). The affidavit in this case alleged that the informant had knowledge that the defendant kept a supply of crack cocaine for sale in his home. The affidavit set forth the details of two controlled buys during which the informant purchased drugs from the defendant, one of which took place in the defendant’s apartment and the other in Madrid’s apartment no more than ten days prior to the issuance of the warrant. In addition, the affidavit set forth the experienced narcotics investigators’ knowledge that narcotics dealers need a supply of drugs as well as other items used to cut, weigh, sell and protect the drugs. Viewing those facts in the light most favorable to upholding the determination of the issuing judge, we conclude that the judge could have reasonably inferred that the defendant was engaged in the continuous business of selling illegal drugs and used his apartment as a “secure operational base.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 180, 770 A.2d 471 (warrant less likely to be stale when defendant’s home is “secure operational base” rather than merely “criminal forum of convenience” [internal quotation marks omitted]), cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). In light of those facts as set forth in the affidavit, the passage of time does not compel the conclusion that the information contained in the warrant affidavit was stale. We conclude that the issuing judge made a reasonable determination that probable cause existed on the basis of the information contained in the warrant application.

II

The defendant next claims that the court improperly denied his motions to suppress and to dismiss in violation of his state and federal due process rights because the failure to provide him with the dates of the controlled buys deprived him of the ability to make the necessary showing to compel a Franks hearing. The defendant advances his claim entirely with arguments that the court improperly denied his motions for disclosure. As such, we do not review his claim.

General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal .... The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. . . .” (Emphasis added.)

Although the defendant’s claim is cast as a challenge to the court’s denials of his motions to suppress and to dismiss, his claim is, in reality, a challenge to the court’s denial of his motion for disclosure. The defendant himself rephrased his claim in his brief to this court and asserted that “the trial court’s rulings denying disclosure of the dates of the alleged buys . . . violated [his] right to due process . . . .” (Emphasis added.) Such a claim is not reviewable pursuant to § 54-94a, nor is it a rare exception mandating review pursuant to State v. Revelo, 256 Conn. 494, 503, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). Although the defendant requests Golding review of his claim, to grant such review would be to render the restrictions of § 54-94a meaningless. As such, we will not review his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), a defendant is entitled to challenge the veracity of an affidavit or testimony given in support of an application for a search warrant. State v. Glenn, 47 Conn. App. 706, 708, 707 A.2d 736 (1998), aff'd, 251 Conn. 567, 740 A.2d 856 (1999). If a defendant wants a Franks hearing to challenge the truthfulness of an affidavit underlying a warrant, he must (1) make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit and (2) show that the allegedly false statement was necessary to the finding of probable cause. State v. Bangulescu, 80 Conn. App. 26, 33, 832 A.2d 1187 (2003).

       The defendant filed a motion for disclosure requesting that the court order the disclosure of “[a]ny and all documents, records and/or information pertaining to the specific dates” of the controlled buys. The court denied his motion.

       In State v. Revelo, supra, 256 Conn. 503, our Supreme Court stated that “in the absence of a showing of good cause, an appellate court should decline to review an issue that has not been raised in accordance with the provisions of § 54-94a. . . . [S]uch good cause is likely to be established only infrequently.” The court concluded, however, that that case presented one of the “rare exceptions to the general rule of unreviewability”; id.; because the defendant’s due process claim gave rise to an important issue and the undisputed facts of that case established a constitutional violation. Id., 503-504.

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. WILLIAM L. ANKERMAN
    (AC 23185)
    Lavery, C. J., and DiPentima and Stoughton, Js.

      Argued November 18, 2003 —
    officially released February 17, 2004

      William L. Ankerman, pro se, the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John F. Blawie, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, William L. Anker-man, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119 (1) and 53a-122 (a) (2). The defendant has raised twelve issues in his attack on his conviction. None of the claims has merit, and many of them were not preserved at trial. Accordingly, we affirm the judgment of the trial court.

The jury reasonably might have found the following facts from the evidence presented at the trial. The defendant was an attorney admitted to practice in Connecticut and a partner in the law firm of Ankerman and Smith (law firm). Leslie Forbes retained the law firm to represent his minor daughter, the victim, Elizabeth Forbes, who had been injured when struck by an automobile on November 3, 1992. The victim was fifteen years old at the time she was injured. The victim’s claim for damages was settled for $100,000. On November 12, 1993, Philip A. Wright, Jr., judge of probate in Wall-ingford, where the Forbeses resided, appointed Leslie Forbes and his wife, Earldine R. Forbes, as guardians. The Probate Court approved the settlement. After the agreed on attorney’s fees and certain expenses were deducted from the settlement amount, the sum of $66,110 was deposited in a bank account under the name of “Ankerman & Smith, Trustees for Elizabeth Forbes.” The Probate Court required a bond of $30,000 of the guardians and, after additional expenses had been paid, on January 16, 1994, the guardians filed an inventory in the Probate Court showing net proceeds of the settlement of $59,039.45.

On or about October 21,1994, attorney David C. Smith sent the guardians a check drawn on the trust account for $16,259.42 and advised them that he was retaining $49,894.32 “for payment or as a contingency for payment” for certain listed medical claims and Probate Court fees. Those included claims by Yale University School of Medicine (Yale) for $10,523 and Blue Cross/ Blue Shield for $33,894.32. Those two claims, totaling $44,417.32, were never paid, although certain other claims and fees were paid from the account. Yale ultimately brought an action against the victim’s parents.

On November 8, 1994, the victim reached the age of eighteen. On January 6, 1996, Smith left the law firm to accept a position outside of Connecticut and informed the victim’s parents that the defendant would continue to take care of the matter. On September 1, 1996, after he had been defaulted for failure to plead in the Yale lawsuit, Leslie Forbes called the defendant for assistance. The defendant succeeded in opening the default and finally, after a trial, obtained judgment for Leslie Forbes and Earldine Forbes on May 14, 1998. In the meantime, between April and December, 1996, the defendant drew checks on the trust account payable to himself or to his practice, totaling $43,137.50. None of that money was ever paid to the victim or to her parents, but the bonding company ultimately was required to pay the bond. An accounting dated December 8, 1995, and signed by the guardians was sent to the Probate Court, but it was rejected because it was on a form for a decedent’s estate, which was not the proper form. The accounting showed $33,940.32 on hand for distribution, but subject to a Blue Cross/Blue Shield hen in that amount and to a claim by Yale for $10,523.

The defendant never told the Forbes family that he had withdrawn the money and, at one point in 1997, told Earldine Forbes that he had all of her daughter’s money. In December, 1997, no other accounting having been filed, Judge Wright scheduled a hearing for January 7, 1998, to consider removal of the guardians. The defendant appeared at the hearing and stated that he had all of the funds and that he would prepare an accounting within two weeks. No accounting was filed, and on several subsequent dates hearings were scheduled and noticed at which the defendant failed to appear. Judge Wright suggested that the Forbeses obtain the assistance of another lawyer, and attorney Terence A. Zemetis was engaged thereafter to represent them.

Judge Wright scheduled a hearing for May 20, 1998, at which the Forbes family, Zemetis and the defendant appeared. The defendant produced a series of bank statements that revealed that the money that had been in the account was gone. Zemetis asked where the money was and the defendant replied: “It’s gone, it’s all gone. I’m sorry.” He told Leslie Forbes that he was sorry that he had taken the victim’s money. The defendant stated that he would attempt to obtain a mortgage loan to repay the money he had taken, but that he would need time to procure the funds. Judge Wright ordered the defendant to file a final accounting by July 4, 1998.

On July 6, 1998, the defendant wrote a letter to the statewide grievance committee (committee), with a copy to Zemetis, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. On December 6,1998, he wrote to Zemetis proposing a plan to pay the net principal due plus interest, which he calculated to total $55,000. On April 8, 1999, the defendant testified before a grievance panel that he was deeply sorry that he had breached his duty as an attorney. After a jury trial, the defendant was convicted and sentenced. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant has raised twelve issues in his brief. As we have noted, several of the claims of error were not preserved properly. The record also reveals that the defendant has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned. . . . Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice. . . . Accordingly, we decline to review his unpreserved claim.” (Citations omitted; internal quotation marks omitted.) State v. Harvey, 77 Conn. App. 225, 230-31, 822 A.2d 360, cert. denied, 265 Conn. 906, 831 A.2d 252 (2003). In his brief, the defendant makes only passing references to Golding and has provided us with no analysis of its four prongs. We will not engage in Golding or plain error review on the basis of such an inadequate brief. We will not, therefore, address those issues raised by the defendant that were not properly preserved in the trial court. With the foregoing principles in mind, we now address each of the defendant’s remaining claims in turn.

II

A

In one of his many claims, the defendant asserts that the court improperly heard a case that may not have taken place in the judicial district where the trial was held and therefore may have lacked subject matter jurisdiction.

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . The question of whether the court has such jurisdiction, however, must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” (Internal quotation marks omitted.) State v. Velky, 263 Conn. 602, 605-606, 821 A.2d 752 (2003). Our review of claims concerning subject matter jurisdiction is plenary. See Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 754, 800 A.2d 499 (2002).

The defendant posits that because the information charged that the crime was committed in the town of Wallingford or at other locations, the jury could have convicted him if the crime had occurred in another state. That argument is wholly without merit. The evidence showed that the victim lived in Connecticut, the bank where the account was maintained was in Connecticut and the defendant’s actions in taking the victim’s money occurred in Connecticut. It is clear that the court had subject matter jurisdiction.

The defendant also claims that the crime may have occurred outside of the judicial district in which he was tried. “It is a well established rule that, outside the area of administrative appeals, venue is not a jurisdictional but a procedural question; consequently, venue, unlike subject matter jurisdiction, can be waived by the parties.” State v. Kelley, 206 Conn. 323, 332, 537 A.2d 483 (1988). Thus, to the extent that the defendant is challenging venue, any such claim was waived by his failure to raise it at the trial. See State v. Morrill, 197 Conn. 507, 553, 498 A.2d 76 (1985).

B

The defendant next claims that the court abused its discretion by limiting questions to prospective jurors during voir dire examination. “It is well established that the trial court is vested with broad discretion to determine the extent and form of the voir dire examination.” State v. Faust, 237 Conn. 454, 462, 678 A.2d 910 (1996). Voir dire that touches on the facts of the case should be discouraged. State v. Rios, 74 Conn. App. 110, 117, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003).

The defendant complains of two rulings limiting his examination and claims that they were harmfully prejudicial to him. He has not set out those questions in accordance with our rules, leaving this court to search through the filed transcripts.

During the examination of the third potential juror, defense counsel stated that the state would introduce evidence that the larceny had occurred while the defendant was acting as an attorney, and asked whether the potential juror could be fair and impartial in such a case. An objection that the question concerned the evidence to be introduced was overruled, but before the next venireperson was called, counsel addressed the question again. The court agreed that a question concerning an attorney accused of embezzlement in the course of his duties as an attorney would be getting into the evidence. Defense counsel thereafter refrained from asking that question, but did question potential jurors on their ability to remain impartial in a case in which the defendant was an attorney charged with embezzlement. We cannot say that the court abused its discretion when it ruled that such questions were improper because they touched on the facts of the case. See id., 117-18.

The other claim concerning the voir dire arose when it became apparent that some of the venirepersons previously had had jury service. Defense counsel was not allowed to ask those persons what the verdict had been in the cases on which they had served. Our Supreme Court previously has held that it is not an abuse of discretion to disallow such questions. See State v. Couture, 218 Conn. 309, 317-19, 589 A.2d 343 (1991).

We discern no prejudice to the defendant resulting from those rulings and conclude that the court did not abuse its discretion in ruling as it did.

C

The defendant next claims error in various eviden-tiary rulings by the court. We have frequently held that a court has broad discretion in ruling on the admissibility and relevance of evidence. State v. Gombert, 80 Conn. App. 477, 488, 836 A.2d 437 (2003). We will refer to additional facts where necessary.

1

The defendant first claims that the court improperly denied his motion to suppress the letter he wrote to the committee on July 6,1998. Prior to commencement of the trial, the court, Lager, J., held a hearing on the defendant’s motion to suppress. Certain facts were stipulated to, including the following: When the defendant wrote the letter, he had not been ordered to do so by the probate judge, the committee itself or the committee’s counsel; when he wrote the letter, the defendant was not under investigation by the committee; and when he wrote the letter, the defendant was not under arrest or in custody, and the letter was not the product of an interrogation.

In the letter, the defendant stated that he was writing to alert the committee to a serious problem with his actions. He described the settlement in the Forbes case and stated that after payments to the guardians and medical providers, there remained approximately $44,000 in the account. He wrote that from that sum, checks were drawn to cover legal services, and he stated that he had reported to the Probate Court that he had overdrawn the legal fees account by about $35,000. He acknowledged liability for the excess payments, offered as a possible explanation that he had suffered a stroke in 1993 and had had other subsequent physical problems, and stated that he was shocked by what he had done.

The defendant filed a motion to suppress the statements in his letter under both the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Because he claimed no greater protection under the Connecticut constitution, the court properly considered the claim under the federal constitution. See State v. Green, 261 Conn. 653, 656-57 n.7, 804 A.2d 810 (2002).

The claim made by the defendant before the trial court and repeated in his brief to this court was that he was obligated under certain ethical duties imposed by the Rules of Professional Conduct and our rules of practice to report to the committee what he had done. The defendant argues, therefore, that his statement was compelled. In essence, his claim is that the requirement of rule 8.3 (a) of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he report his own dishonesty. The defendant further contends that because the committee is an arm of the court, it is sufficiently linked to the state so that his statement was one compelled by the state.

The defendant provided no authority for those contentions and our research has not revealed any. The court decided, and we agree, that there is no support for those contentions in either the Rules of Professional Conduct or our rules of practice. There can be no doubt that a lawyer is bound by the Rules of Professional Conduct and subject to discipline for a breach of those duties. Furthermore, a lawyer is bound to try to protect our profession by reporting violations on the part of other lawyers that come to his or her attention.

In the present case, the defendant was not under a duty to report his own misconduct to the committee. We agree, therefore, with the court that the letter written by the defendant was voluntary and not the result of any state compulsion. In the absence of any compulsion, the statements contained in the letter were voluntary. “Voluntary statements of any kind are not barred by the fifth amendment.” (Internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 290, 636 A.2d 351 (1994).

2

The defendant next claims that the court improperly admitted into evidence a letter that he wrote on December 6,1998, to Zemetis, proposing a plan to pay $55,000 to the victim. The letter was admitted into evidence over objection that it was an offer to compromise and inadmissible under § 4-8 of the Connecticut Code of Evidence. Section 4-8 provides that evidence of an offer to compromise is inadmissible on the issues of liability and the amount of the claim, but excepts, among other things, admissions of liability made by a party. Leaving aside whether, as claimed by the state, that rule does not apply in a criminal trial, the letter clearly was an admission of liability by a party, the defendant. “[Statements made out of court by a party-opponent are universally deemed admissible when offered against him; 4 Wigmore, Evidence (Chadboum Rev. 1972) § 1048, p. 2; so long as they are relevant and material to issues in the case. . . . [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.” (Citation omitted; internal quotation marks omitted.) State v. Correa, 57 Conn. App. 98, 111-12, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000); see also State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). We conclude, therefore, that the court did not abuse its discretion in admitting the letter into evidence.

3

The defendant next claims that the court improperly admitted into evidence an amended final accounting prepared by Zemetis and signed by the guardians. Zem-etis testified that he had prepared the document from information supplied by the Probate Court, and that he had no other files and had received no information from the defendant. Defense counsel objected to the offer as having minimal relevance, and as inaccurate and prepared with less than total knowledge. The court overruled the objection, finding that the document was relevant, and that its shortcomings and the reasons therefor were matters for the jury’s consideration. We agree with the court’s conclusion.

The account was the final event in winding up the victim’s estate and therefore was relevant. “We repeatedly have stated that evidence is relevant if it has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Lugo, 266 Conn. 674, 693-94, 835 A.2d 451 (2003).

In the present case, the determination reserved for the jury was whether the defendant had embezzled funds from the trust account. The final accounting provided the jury with evidence of the closing of that account. We have stated that “[t]he state may properly present evidence to show the sequence of events as they unfold.” State v. McNair, 54 Conn. App. 807, 815, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999). Thus, it is clear that the final accounting was relevant and admissible, and that any of its admitted inaccuracies, elicited during cross-examination, were matters pertinent to whatever weight the jury might assign to them.

4

The defendant next claims that the court improperly permitted the prosecutor to inquire as to why the insur-anee company had paid on the probate bond. During the trial, Zemetis testified that he was representing the Forbes family in related civil matters, and that a claim was made and collected against the bond. When the prosecutor asked why the bond was paid, an objection was initially sustained as calling for hearsay. Defense counsel, however, had brought out during his cross-examination of the victim that she had received $30,000 from an insurance company. The prosecutor claimed that this had opened the door to further inquiry, and the objection was overruled.

Our Supreme Court has stated that “[t]he party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” (Internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 405, 832 A.2d 14 (2003). In the present case, Zemetis’ testimony was in response to the defendant’s questioning of the victim. Zemetis testified that the bond was paid because the person who had custody of the funds had misused them. In light of the obvious suggestion that the victim had been paid some or all of the money, we cannot say that the court abused its discretion.

5

The defendant next claims that the court improperly sustained an objection to one of his answers on cross-examination as nonresponsive to the question that had been posed. The defendant took the witness stand in his defense. The following exchange took place during his cross-examination:

“[The Prosecutor]: The money is gone, isn’t it, sir?
“The Defendant: It’s not in that account.
“[The Prosecutor]: It’s gone, is it not, sir? Tell us where it is, if it’s not in this account?
“The Defendant: I have a blank check here that I am—
“[The Prosecutor]: I object, it’s not responsive.
“[Defense Counsel]: It is responsive.
“The Court: It’s not responsive. Pose your question.”

Defense counsel subsequently explained in an offer of proof that the defendant had a check in the amount of $13,251, payable to himself, which was available to the victim if they could agree on the amount owed. That, however, was not relevant to the charge that he had stolen the money in the first place, and the court did not abuse its discretion in its ruling.

D

Finally, the defendant claims that the evidence was insufficient for conviction. He filed a motion for a judgment of acquittal at the end of the state’s case and again at the conclusion of the evidence. He claimed that the state had failed to prove that he wrongfully had taken the money from the account and that the amount was more than $10,000.

The standard of review on a claim of insufficiency of the evidence has been stated frequently. First, we construe the evidence in the light most favorable to sustaining the verdict, and then we determine whether, on the facts so construed, together with the inferences reasonably drawn therefrom, the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Gombert, supra, 80 Conn. App. 494-95.

References to the evidence recited heretofore demonstrate that this standard has been met fully. Accordingly, we conclude that the court properly denied the defendant’s motions for a judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The law firm of Ankerman and Smith was dissolved, and the defendant continued to practice law as a solo practitioner.

       Judge Wright testified that a final accounting should have been filed shortly after the victim became eighteen years old and, at that time, the funds should have been dispersed to her and the trust account closed.

       The defendant was unable to obtain a mortgage loan.

       On the basis of the letter, the committee commenced a complaint against the defendant and presented it to the Superior Court. After a hearing, the court suspended the defendant from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn. App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003).

       For example, the defendant’s brief states that “[t]his [claim] is also renewable under State v. Golding, [supra, 213 Conn. 233].”

       “The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as a constitutional court of unlimited jurisdiction. Conn. Const., art. 5, § 1.” (Internal quotation marks omitted.) State v. Mack, 55 Conn. App. 232, 236, 738 A.2d 733 (1999).

       Rule 8.3 (a) of the Rules of Professional Conduct provides in relevant part that “[a] lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority. . . .”

       In its brief, the state cites Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 97-38 (1997), which provides in relevant part that “[i]n light of the fact that the text of Rule 8.3 (a) refers to ‘another lawyer,’ Rule 8.3 does not contain any requirement that a lawyer report himself or herself. . . .” (Emphasis added.)

       Connecticut Code of Evidence § 4-8 provides: “(a) General Rule. Evidence of an offer to compromise or settle a disputed claim is inadmissible on the issues of liability and the amount of the claim.
      “(b) Exceptions. This rules does not require the exclusion of:
      “(1) Evidence that is offered for another purpose, such as proving bias or prejudice of a witness, refuting a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution, or
      “(2) statements of fact or admissions of liability made by a party.”

       Our Supreme Court has stated that “[t]he policy of protecting offers of compromise in civil cases does not extend to efforts to stifle criminal prosecution by buying off the prosecuting witness or victim.” (Internal quotation marks omitted.) State v. Milum, 197 Conn. 602, 613, 500 A.2d 555 (1985). Furthermore, one commentator has noted that § 4-8 contains terms that have a civil but not criminal connotation and that it is unclear whether § 4-8 of the Connecticut Code of Evidence applies to criminal cases. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.26.1, p. 263.

       The defendant also claimed that Zemetis was incompetent to testify as to why the money was paid. That claim is without merit, as it was Zemetis who made the claim on the bond and, therefore, knew why it had been paid.


text:
    STATE OF CONNECTICUT v. ROBERT ARRINGTON

    (AC 23438)
    West, DiPentima and Peters, Js.
    Argued October 27, 2003 —
    officially released February 17, 2004

      Kim E. Rinehart, with whom were Jeffrey R. Bobbin and, on the brief, J. David Griffin, special public defender, for the appellant (defendant).

      Julie Slayton, certified legal intern, with whom were Marjorie Allen Dauster, senior assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, and Christopher Pelosi, assistant state’s attorney, for the appellee (state).

       The Appellate Court judgment was vacated April 21, 2005.

   Opinion

WEST, J.

The defendant, Robert Arrington, appeals from the judgment of conviction, rendered after a jury trial, for the negligent operation of a motor vehicle resulting in the death of another in violation of General Statutes § 14-222a. On appeal, the defendant claims that the court (1) violated his right to cross-examine a witness about her pending or contemplated civil action against him and (2) misled the jury with its instruction on proximate cause. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 10, 2000, the victim, her sister and two children were traveling in the right lane of Interstate 91, about ten to fifteen feet behind the rear tire of a truck in the center lane, when the truck, driven by the defendant, veered into the victim’s lane without signaling. The victim made a hard right turn toward the breakdown lane to avoid a collision and lost control of her vehicle. The vehicle rolled over several times, killing the driver.

At trial, defense counsel asked the victim’s sister on cross-examination whether she had hired an attorney due to her injuries from the accident. The court sustained the state’s objection. The jury found the defendant guilty of negligent homicide in violation of § 14-222a. This appeal followed. Additional facts will be set forth as needed.

I

The defendant’s first claim is that the court improperly precluded his cross-examination regarding the victim’s sister’s pending or contemplated civil action against him. He argues that her testimony was materially different from that of the other eyewitness, William Dietz, a truck driver whose vehicle was in the center lane behind the defendant’s truck when the collision occurred. We disagree.

With respect to matters pertaining to control over cross-examination, every reasonable presumption should be made in favor of the correctness of the court’s ruling, and our standard of review is one of abuse of discretion. Menna v. Jaiman, 80 Conn. App. 131, 140, 832 A.2d 1219 (2003).

“Although the outright denial of a defendant’s opportunity to impeach a witness for motive, bias and interest implicates the constitutional protection of the confrontation clause, such a denial is subject to harmless error analysis. ... A new trial is therefore required only if the exclusion of the proffered evidence is not harmless beyond a reasonable doubt.

“Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

We conclude that denying the defendant an opportunity to cross-examine the victim’s sister with respect to bias was harmless beyond a reasonable doubt. Both she and Dietz, who witnessed the accident while driving behind the defendant’s truck, testified that the defendant had veered into the victim’s lane. Only Dietz testified that the defendant moved into the victim’s lane without using a signal. Pursuant to § 14-222a, the jury reasonably could have found the defendant negligent for having veered into the victim’s lane, without signaling, and having caused the victim to turn her steering wheel hard to avoid an accident. The testimony of the victim’s sister was not materially different from that of Dietz on that issue. We therefore conclude that the error was harmless because Dietz’s testimony provided all the material facts to establish the defendant’s negligence in veering into the victim’s lane without signaling.

II

The defendant next claims that the court improperly instructed the jury on proximate cause. He argues that the court failed to charge the jury that his negligence, to be considered a proximate cause, must have contributed in a direct manner, and unbroken sequence, to the resulting death, and that his conduct could not have been superseded by an efficient, intervening cause that produced the victim’s death. We disagree.

The defendant failed to preserve his claim at trial and now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim because the record is adequate for review and he has raised a claim of constitutional magnitude. See State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993) (following established rule that claimed improper jury instruction on element of charged offense appealable even if not raised at trial). We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

“[Wjhether a jury instruction is improper is gauged by considering the instruction in its entirety, and with reference to the facts and evidence in the case, so as to determine whether it fairly presented the case to the jury so that no injustice was done under established legal rules.” State v. Munoz, 233 Conn. 106, 120, 659 A.2d 683 (1995).

“[W]hen several factors contribute, in a chain of events, to cause a victim’s injury . . . the defendant’s conduct must have been a cause that necessarily set in operation the factors that accomplish the injury. In short, a jury instruction with respect to proximate cause must contain, at a minimum, the following elements: (1) an indication that the defendant’s conduct must contribute substantially and materially, in a direct manner, to the victim’s injuries; and (2) an indication that the defendant’s conduct cannot have been superseded by an efficient, intervening cause that produced the injuries.” (Emphasis in original; internal quotation marks omitted.) Id., 121. “We emphasize that . . . the requirement of language in the jury instructions regarding an efficient, intervening cause is not ironclad. It arises in those cases in which the evidence could support a finding by the jury that the defendant’s conduct was overcome by an efficient, intervening cause, or in which the evidence regarding proximate causation was such that, based on the doctrine of efficient, intervening cause, the jury could have a reasonable doubt about the defendant’s guilt.” (Citation omitted.) Id., 121 n.8.

“The doctrine of intervening cause . . . refers to a situation in which the defendant’s conduct is a ‘but for’ cause, or cause in fact, of the victim’s injury, but nonetheless some other circumstance subsequently occurs — the source of which may be an act of the victim, the act of some other person, or some nonhuman force — that does more than supply a concurring or contributing cause of the injury, but is unforeseeable and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct. . . . Thus, the doctrine serves as a dividing line between two closely related factual situations: (1) where two or more acts or forces, one of which was set in motion by the defendant, combine to cause the victim’s injuries, in which case the doctrine will not reheve the defendant of criminal responsibility; and (2) where an act or force intervenes in such a way as to reheve a defendant, whose conduct contributed in fact to the victim’s injuries, from responsibility, in which case the doctrine will apply.” (Citations omitted; emphasis added.) Id., 124-25.

Under the facts of this case, we conclude that the omission of an instruction on the doctrine of efficient, intervening cause was not improper. The defendant cites his theory at trial that certain actions of the victim contributed to, or caused, the accident, including the rate of speed at which she drove her vehicle, the manner in which she turned the steering wheel, her use of the breakdown lane and her application of the brakes. The rate of speed of the victim’s vehicle at the time of the defendant’s act of veering into her path was a preexisting state of affairs, not an event that occurred subsequent to the defendant’s negligent act that was sufficiently powerful to relieve him of criminal responsibility. Furthermore, the victim’s defensive reactions of turning her steering wheel, utilizing the breakdown lane and applying her brakes were set in motion by the defendant’s negligence in veering into her lane. Therefore, an instruction on the doctrine of efficient, intervening cause was unnecessary.

Finally, although the charge may not have expressly stated that the connection between the defendant’s conduct and the victim’s death had to be “direct,” the jury could not have been misled to reach an improper result. Under those facts, if the jury believed that the defendant’s conduct had contributed both substantially and materially to the victim’s death, as the court instructed, then it necessarily also had to believe that his conduct contributed in a direct manner to the same result. No other acts of negligence existed to diminish the causal connection between the defendant’s negligence and the victim’s death. Therefore, the instruction on proximate cause was fairly and accurately presented, and the jury could not have been misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state concedes that the court improperly precluded the cross-examination, but argues that the error was harmless beyond a reasonable doubt. “[A]s a general rule cross-examination of the prosecuting witness should be allowed to show the pendency, existence and status of civil action against the accused arising out of the same set of circumstances as those which served as the basis of the criminal prosecution. . . . This is not to say the refusal to admit such evidence has not been held, in the proper circumstances, to be harmless error.” (Citations omitted; internal quotation marks omitted.) State v. Milum, 197 Conn. 602, 610, 500 A.2d 555 (1985). We note that it was improper to preclude the cross-examination, and we apply harmless error analysis.

       General Statutes § 14-222a provides: “Any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”

       The court instructed the jury on proximate cause as follows: “Negligence is a proximate cause of an injury or death if it was a substantial factor in bringing that injury or death about. Negligence is a substantial factor in bringing about an injury or death if it contributes materially to the production of the injury or the death.”

       The doctrine of superseding cause recently has been abandoned in cases in which “a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence.” Barry v. Quality Steel Products, Inc., 263 Conn. 424, 439 n.16, 820 A.2d 258 (2003). The Supreme Court has cautioned, however, that its conclusion did not “necessarily affect the doctrine of superseding cause in the area of criminal law. See State v. Munoz, 233 Conn. 106, 124-25, 659 A.2d 683 (1995).” Barry v. Quality Steel Products, Inc., supra, 439 n.16. Accordingly, we continue to recognize the doctrine in this criminal appeal.


text:
    STATE OF CONNECTICUT v. ROBERT VALLE
    (AC 23348)
    Schaller, West and Mihalakos, Js.

      Argued November 17, 2003 —
    officially released February 17, 2004

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and DavidR. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Robert C. Valle, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sale of a hallucinogenic substance in violation of General Statutes §§ 2 la-277 (a) and 53a-8, and one count of conspiracy to sell a hallucinogenic substance in violation of General Statutes §§ 21a-277 (a) and 53a-48. On appeal, he claims that the trial court improperly instructed the jury (1) on the use of circumstantial evidence from which it could infer the intent elements of accessory liability, (2) by including the definition of “knowingly” in its accessory charge and (3) by failing to charge that he must have shared with his coconspirators the intent to sell a hallucinogenic sub stance, in those precise terms. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant arranged to sell “Ecstasy,” a hallucinogenic substance, on four separate occasions to a cooperating witness in an undercover operation in Dan-bury spanning from September 26 to October 18, 2001. In each instance, the defendant used his cellular telephone to discuss the time and terms of the drug sales. The cooperating witness then met the defendant or his agent at the defendant’s place of business, and the transaction was conducted outside the defendant’s presence. The jury found the defendant guilty on all counts. The court thereafter granted the defendant’s motion for a judgment of acquittal as to three counts of conspiracy to sell a hallucinogenic substance. This appeal followed. Additional facts will be set forth as needed.

Because the defendant failed to take an exception to the court’s instructions on accessorial liability and the crime of conspiracy, he requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for each of his claims. Finding the first two Golding prongs satisfied in each instance, we will review all three claims under Golding. See id.

Additionally, we note the standard of review for the three claims presented. “The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 128, 836 A.2d 224 (2003).

I

The defendant first claims that the court’s instructions on the use of circumstantial evidence unconstitutionally diluted the state’s burden of proof for the elements of accessorial liability. Specifically, he argues that the court misled the jury by permitting it to infer the intent necessary to establish accessorial liability through the use of a standard of “reason, experience and common sense,” rather than through the use of the required reasonable doubt standard. We disagree.

Although we review the claim under Golding, it fails to satisfy Golding's third prong because the alleged constitutional violation does not clearly exist. “[W]here a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt. . . . Inferences of subordinate facts relied on cumulatively for proof of an element of a crime ordinarily need not be proved by any standard other than common sense. When a particular fact is essential to establish such an element, however, that fact must be proved in accordance with the reasonable doubt standard.” (Citation omitted; internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 466, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

Nowhere does the defendant argue that the jury’s findings on the intent elements of accessorial liability were dependent on one particular fact that had to be proved beyond a reasonable doubt. Moreover, the court properly defined the intent elements of accessorial liability and instructed the juiy that the state had to prove beyond a reasonable doubt each and every element of the crimes charged. We therefore conclude that it is not reasonably possible that the jury was misled by the court’s instruction on the use of circumstantial evidence to infer the intent elements of accessorial liability.

II

The defendant next claims that the court improperly included the definition of “knowingly,” which is found in General Statutes § 53a-3 (12), in its instruction on accessorial liability. He argues that the inclusion of that definition unconstitutionally reduced the burden of proof required to establish accessorial liability. We disagree.

The defendant’s claim fails to satisfy the third prong of Golding because the alleged constitutional violation does not clearly exist. See State v. Golding, supra, 213 Conn. 239-40. It is not reasonably possible that the jury was misled by the court’s instruction on the definition of “knowingly” as part of the overall accessory charge because, as was clearly explained to the jury, the state had to prove the intent element of the underlying offense, sale of a hallucinogenic substance, to establish accessorial liability. The court defined accessorial liability as set out in § 53a-8 (a) and instructed the jury that to find the defendant guilty as an accessory, it must find that he acted with the mental state necessary to commit the crime charged and that he requested, commanded or intentionally aided the principal to commit the crime. Because the defendant must have knowingly sold the substance in question to commit a sale offense in violation of § 2 la-277 (a), it was proper for the court to instruct the jury on the definition of “knowingly” as part of its accessory charge. We therefore conclude that it is not reasonably possible that the jury was misled by the court’s instruction.

Ill

The defendant’s final claim is that the court improperly failed to instruct the jury that he must have shared with his coconspirators the specific intent to sell a hallucinogenic substance, in those exact terms, to be found guilty of the crime of conspiracy to sell a hallucinogenic substance. He argues that it is reasonably possible that the juiy was misled by the court’s general references to “specific intent to violate the law” and intent “to engage in conduct constituting a crime” as part of its conspiracy charge. We disagree.

The defendant’s claim fails to satisfy the third prong of Golding because the alleged constitutional violation does not clearly exist. See id. It is not reasonably possible that the jury was misled by the court’s instructions. First, the court properly recited the elements of the crime of conspiracy as set out in § 53a-48 (a).* *** Second, the defendant concedes that the court instructed the jury that he must have had the specific intent to sell a hallucinogenic substance to be found guilty of conspiracy to sell a hallucinogenic substance. Third, we note that the court made it abundantly clear to the jury throughout its instructions that the underlying offense at issue was sale of a hallucinogenic substance.

The defendant’s claim is without merit. It is not reasonably possible that the jury was misled by the court’s instructions on the crime of conspiracy.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The court charged the juiyinrelevant part as follows: “[BJefore you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in light of reason, experience and common sense. . . . [T]he state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged. ... A person is criminally liable for a criminal act if he directly commits it or if he is an accessory .... This basic principle is stated in General Statutes § 53a-8 (a) of the Penal Code, which provides as follows .... Thus, you must find that the state has proven beyond a reasonable doubt that the defendant assisted another in selling a hallucinogenic substance. You must also find beyond a reasonable doubt that the defendant had the intent to commit the crime charged and did request, command or intentionally aid another in selling a hallucinogenic substance to find the defendant criminally liable under [§ 53a-8 (a)]. . . . What a person’s purpose, intention or knowledge has been is usually a matter to be determined by inference. . . . The only way in which a jury can ordinarily determine what a person’s purpose, intention or knowledge was at any given time, aside from that person’s own statements or testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct and from that infer what his purpose, intention or knowledge was. . . . [T]hat, inference drawn [must comply] with the standards for inferences as explained in connection with my instruction on circumstantial evidence.” (Emphasis added.)

       The court instructed the jury in relevant part as follows: “To establish the guilt of a defendant as an accessory for assisting in the criminal act of another, the state must prove criminality of intent and community of unlawful puipose. That is, for the defendant to be guilty as an accessory, it must be established that he acted with the mental state necessary to commit the crime charged and that in furtherance of the crime he requested, commanded or intentionally aided the principal to commit the crime. ... A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. A person acts knowingly with respect to conduct or circumstances described by a statute defining an offense when he is aware that his conduct is of such nature or that such . . . circumstances exist. . . . For you to find the defendant guilty of being an accessory to the sale of a hallucinogenic substance, the state must prove the following elements beyond a reasonable doubt: One, that the defendant knowingly sold a substance to another person; two, that the substance is a hailucinogenic substance; and, three, that the defendant knew the hallucinogenic character of the substance.” (Emphasis added.)

       See State v. Mahon, 53 Conn. App. 231, 235-36, 729 A.2d 242 (1999). We note, as a matter of clarification, that the court improperly instructed the jury as to a third element of the offense of sale of a hallucinogenic substance, specifically that the defendant knew of the hallucinogenic character of the substance. See footnote 3. It is well settled that “[t]o prove sale of a [hallucinogenic] substance, the state need not prove beyond a reasonable doubt that the defendant knew the character of the substance.... The state need prove only that the defendant knowingly sold the substance to another person and that the substance sold was a [hallucinogenic substance].” (Citation omitted.) State v. Mahon, supra, 235-36. The defendant does not claim on appeal that the court’s instruction on the additional element harmed him, nor could he, since its inclusion could only have helped him. In giving this improper instruction, the court may have relied on our presentation of the elements of the offense of sale of a narcotic substance within 1500 feet of an elementary school, in violation of General Statutes § 21a-278a (b), in State v. Lewis, 67 Conn. App. 643, 647, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002). We take this opportunity to make clear that State v. Mahon, supra, 236, properly sets forth the two elements of a sale offense under § 21a-277 (a). Similar to the situation presented here, any statement to the contrary in State v. Lewis, supra, 647, was harmless.

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

       The court instructed the jury in relevant part as follows: “[I]n order to convict the defendant [of conspiracy to sell a hallucinogenic substance], the state must prove beyond a reasonable doubt that, one, he intentionally agreed with one or more other persons to engage in criminal conduct, i.e., selling a hallucinogenic substance; two, that any one of the alleged coconspirators did an overt act to further the object of the conspiracy, i.e., the sale of a hallucinogenic substance; and, three, that the defendant intended to sell a hallucinogenic substance . . . .” (Emphasis added.)


author: BISHOP, J.

text:
    AFSCME, COUNCIL 4, LOCAL 3144 v. CITY OF NEW HAVEN
    (AC 23347)
    Foti, Bishop and West, Js.

      Argued December 9, 2003 —
    officially released February 17, 2004

      J. William Gagne, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellant (plaintiff).

      Thomas W. Ude, Jr., corporation counsel, with whom, on the brief, was Donna Chance Dowdie, assistant corporation counsel, for the appellee (defendant).
   Opinion

BISHOP, J.

This is an appeal brought by the plaintiff labor union, AFSCME, Council 4, Local 3144, on behalf of a municipal employee who was discharged from his employment after it was discovered that he had stated falsely on his employment application that he had never been convicted of a criminal offense. The question presented on appeal is whether the arbitration panel acted in violation of its statutory duties when it refused to authorize the issuance of a subpoena for the personnel records of municipal police officers who, the plaintiff claimed, had made false statements in the course of their employment, but had received disparate treatment from the defendant city of New Haven. Because we believe the arbitration panel acted within the scope of its authority, we affirm the judgment of the trial court confirming the arbitration award.

The following facts and procedural history are germane to our discussion of the issue on appeal. In 1994, Nicholas Onofrio was hired by the defendant as a housing code inspector. Subsequently, in 1999, he was pro-motedto the position of senior code enforcement officer. In his initial employment application and in conjunction with his subsequent promotion, Onofrio answered “no” to a question as to whether he had been convicted of any crime. Additionally, as part of completing his application in 1999, he asserted that “all statements made on or in connection with this application are true, complete and correct to the best of my knowledge and belief, and are made in good faith. I authorize the City of New Haven to obtain necessary information and records regarding convictions specified in number 6 of this application. I understand that incomplete, false or inaccurate information may result in the rejection of this application or my dismissal if employed.” Soon after, Onofrio was promoted and, during an interview with his supervisor, admitted to convictions for gambling and income tax evasion. In June, 1999, Onofrio’s employment was terminated on the ground that he had provided “incomplete, false or inaccurate information on an application for employment and/or promotion with the City of New Haven. ” Subsequently, the plaintiff filed a grievance with the state board of mediation and arbitration challenging Onofrio’s discharge. The question presented to the arbitration panel was whether Onofrio had been discharged for just cause and, if not, what the remedy should be.

In preparation for the arbitration hearing, the plaintiff issued a subpoena to the defendant’s chief of police, seeking documentation relating to allegations of misconduct by certain named police officers and the investigation of those allegations by the police department. The plaintiff sought the information in an effort to demonstrate disparate treatment by the defendant of its employees. Specifically, the plaintiff soughtto prove that police officers who had lied about certain misconduct had not been discharged, although Onofrio had been discharged for the same behavior, lying. In turn, the defendant filed a motion to quash the subpoena, alleging that the response of the police department to allegations of misconduct against police officers was not relevant to the action taken in this case. After a hearing, the arbitration board quashed the subpoena, agreeing, in essence, with the defendant’s argument. Following a hearing on the case-in-chief, the arbitration panel ruled that Onofrio had been discharged for cause.

Subsequently, the defendant filed a motion to confirm the arbitration award in court after the plaintiff had filed an application to vacate the award. In its application to vacate the award, the plaintiff claimed, inter alia, that the arbitrators had exceeded their powers or so imperfectly executed them such that a mutual, final and definite award on the subject matter was not made, that the arbitrators were guilty of misconduct by which the rights of the plaintiff were prejudiced and that the award violated public policy.

After a hearing, the court issued a memorandum of decision confirming the award. In its decision, the court noted that the plaintiff, in its brief, had abandoned all claims except its assertion that the arbitration panel had deprived the plaintiff of a full and fair hearing by wrongfully excluding from the arbitration hearing evidence of disparate treatment relating to the defendant’s response to the alleged misconduct of certain police officers. This appeal followed.

Before we address the issue at hand, we repeat the often stated proposition that arbitration is a preferred vehicle for the resolution of private disputes. See, e.g., Board of Education v. East Haven Education Assn., 66 Conn. App. 202, 207, 784 A.2d 958 (2001). Accordingly, the scope of our review of arbitration awards is “narrowly confined.” Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 114, 728 A.2d 1063 (1999). As a consequence, “[c]ourts will not review the evidence, nor where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved.” (Internal quotation marks omitted.) Caldor, Inc. v. Thornton, 191 Conn. 336, 340-41, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985).

Although the latitude given to arbitrators is wide, it is not boundless. Our statutory scheme for confirming and vacating arbitration awards provides in relevant part that an award may be vacated “if the arbitrators have been guilty of misconduct in refusing to hear . . . evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced . . . .” General Statutes § 52-418 (a) (3). The application of that provision does not result in the vacation of an award merely because an arbitration panel may have made incorrect evidentiary rulings. To the contrary, “a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel.” (Internal quotation marks omitted.) Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 299, 680 A.2d 1274 (1996).

In argument before the court in support of the plaintiffs application to vacate the arbitration award, the sole issue presented by the plaintiff was that the refusal by the arbitration panel to hear evidence of treatment by the defendant’s police department of officers who allegedly had been guilty of falsehoods effectively denied the plaintiff a full and fair hearing because the issue of disparate treatment was the only claim the plaintiff had made in conjunction with its claim before the arbitration panel that Onofrio had not been discharged for just cause. In essence, the plaintiff sought to introduce evidence at the arbitration hearing that police officers who had been guilty of falsehoods had not been discharged similarly in an effort to persuade the arbitration panel that the disparate treatment of Onofrio by the same employer, the defendant, demonstrated that Onofrio had not, in fact, been discharged for just cause.

On review of the arbitration panel’s determination, the court determined that the exclusion of that evidence did not deprive the plaintiff of a full and fair hearing. We agree. As noted by both the court and the arbitration panel, although Onofrio and the police officers all were employed by the defendant, they were in different bargaining units and had different responsibilities. Additionally, the plaintiff proffered no evidence before the arbitration panel that any of the police officers had lied about having a criminal record in any of their employment applications. Finally, the record is devoid of any indication that any of the subject police officers had ever represented, as did Onofrio, that their answers to a question concerning criminal convictions were full and complete. Therefore, the court’s assessment of the evidentiary ruling by the arbitration panel was logically and legally correct.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    PABLO ANDRADES v. COMMISSIONER OF CORRECTION
    (AC 23340)
    Bishop, McLachlan and Hennessy, Js.
    Argued December 10, 2003 —
    officially released February 17, 2004

      Adele V. Patterson, assistant public defender, for the appellant (petitioner).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, was Christopher L. Morano, chief state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Pablo Andrades, appeals following the denial by the habeas court of his petition for certification to appeal from that court’s refusal to issue a writ of habeas corpus. The appeal involves three issues: (1) whether it was an abuse of discretion for the court to deny the petition for certification to appeal from the court’s underlying decision not to issue a writ of habeas corpus; (2) whether the court incorrectly refused to issue a writ of habeas corpus; and (3) whether the court incorrectly refused to appoint trial counsel for the petitioner in regard to his habeas petition. As to the first two issues, we reverse the judgment of the habeas court.

The following procedural history is relevant to our consideration of the issues on appeal. The petitioner filed a direct appeal from the judgment of conviction in his criminal trial that was rendered after the jury found him guilty of murder and carrying a pistol without a permit. In a memorandum decision, this court affirmed the judgment of conviction. See State v. Andrades, 68 Conn. App. 905, 793 A.2d 299, cert. denied, 260 Conn. 909, 795 A.2d 545 (2002). Thereafter, the petitioner filed his pro se habeas petition in which he alleged, inter alia, that his trial counsel had not represented him properly. When presented with the petition for the issuance of a writ of habeas corpus, the habeas court, citing the provisions of Practice Book § 23-24, declined to issue the writ on the ground that the issues raised in the petition were the same as those raised on direct appeal and were, therefore, moot. Having determined not to issue the writ, the court also declined to appoint counsel. Following the court’s refusal to issue the writ, the petitioner timely filed a petition for certification to appeal from the court’s decision. The court denied the petition for certification and this appeal followed.

We first address the petitioner’s claim that the court abused its discretion by refusing to grant his petition for certification to appeal from the denial of the petition for a writ of habeas corpus. As noted by both parties, when a petitioner is denied certification to appeal under General Statutes § 52-470, the petitioner must establish that the court abused its discretion in denying certification. See Rivera v. Commissioner of Correction, 254 Conn. 214, 226, 756 A.2d 1264 (2000). “To determine whether the court abused its discretion, the petitioner must demonstrate that the issues 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.” (Internal quotation marks omitted.) Bellino v. Commissioner of Correction, 75 Conn. App. 743, 747, 817 A.2d 704, cert. denied, 264 Conn. 915, 826 A.2d 1159 (2003). Here, for reasons we will discuss, the court should have granted the petition for certification.

The court’s reliance on Practice Book § 23-24 to refuse to issue the writ on the ground of mootness implicates two subissues: (1) whether the mootness of a petition is a basis for refusing to issue a writ; and (2) whether the claims set forth in the petition were moot. We assess the issues in inverse order.

It is axiomatic that in a criminal matter, a claim that a defendant has been denied the effective assistance of counsel generally is not directly appealable. See State v. Lopez, 80 Conn. App. 386, 390, 835 A.2d 126 (2003). Although this court issued a memorandum decision without opinion in the petitioner’s direct appeal, the habeas court and this court may take judicial notice of the court file in the direct appeal. Cf. McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990); In re Mark C., 28 Conn. App. 247, 253, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992). As the respondent has conceded in its brief, a review of the petitioner’s brief in his direct appeal reveals that the issues he raised therein were not the same claims he asserted in the habeas petition. Thus, as acknowledged by the respondent, the court incorrectly determined that the issues raised in the habeas petition were moot. Therefore, the court incorrectly dismissed the petition for a wilt of habeas corpus. Accordingly, it also abused its discretion in denying the petition for certification to appeal, as the petitioner had met his burden of demonstrating that a court could have resolved the issues differently.

As to the petitioner’s claim that the court incorrectly declined to appoint counsel for him, we note that the court stated in an articulation that it had refused to appoint counsel only because it had declined to issue the writ. Indeed, the court noted that if it had issued the writ, counsel would have been appointed and fees would have been waived. Because we have no reason to discredit the court’s statement, we need not independently address the court’s failure to appoint counsel.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

       Practice Book § 23-24 provides: “(a) The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that:
      “(1) the court lacks jurisdiction;
      “(2) the petition is wholly frivolous on its face; or
      “(3) the relief sought is not available.
      “(b) The judicial authority shall notify the petitioner if it declines to issue the writ pursuant to this rule.”

       Having determined that the court incorrectly declined to issue the writ on the ground of mootness, we need not reach the question of whether Practice Book § 23-24 gives the court, discretion to refuse to issue a writ on that basis. We note, however, that mootness is not one of the grounds set forth in Practice Book § 23-24, but it is a ground for dismissal of a writ under Practice Book § 23-29.