author: SHEA, J.

text:
    STATE OF CONNECTICUT v. JORGE ORTA
    (AC 20282)
    Lavery, C. J., and Spear and Shea, Js.
    Argued May 2
    officially released November 13, 2001

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

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

The defendant, Jorge Orta, has appealed from the judgment of conviction, rendered after a jury trial, of accessory to manslaughter in the first degree in violation of General Statutes §§ SSa-SB and 53a-8 (a), for which the trial court imposed a sentence of incarceration of twelve years. On appeal, the defendant claims that (1) the evidence at trial was insufficient to support the verdict, (2) the court improperly charged the jury, thereby creating confusion on the element of intent, and (3) the court improperly charged the jury on the meaning of reasonable doubt. We affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts. On May 8, 1991, at about 7:30 p.m., the victim, Elvis Cmkovic, and his brother, Paul Cmkovic, were playing basketball on the premises of an abandoned store diagonally across the street from their home at 298 Davenport Avenue in New Haven. As they were playing, a gray car and a brown car that followed closely behind proceeded by the store, and gunshots were fired from both cars. The victim was shot in the back and killed by a bullet fired out of one of the cars. The defendant was arrested, a jury trial ensued, several witnesses testified, and he was convicted as an accessory to manslaughter in the first degree in violation of §§ 53a-55 and 53a-8 (a). This appeal followed.

I

The defendant first claims that the state failed to present sufficient evidence to prove beyond a reasonable doubt that he was an active and willing participant in causing the death of the victim. Specifically, he claims that the state failed to sustain its burden of proof on the issue of intent. We disagree.

The following facts are relevant to the defendant’s claim. At trial, three witnesses testified about the events that occurred on the day of the victim’s death. On the day that the victim was shot, a neighbor, Ivanez Virvet, was watching the Cmlcovic brothers play basketball. She testified that David Morales was driving a gray car and that a “dark skinned” man, whom she did not recognize, was a passenger. She also testified that Heriberto Lopez, who also is known as Puto, was the passenger in a brown car. The witness further testified that “[t]he gray car drove by and they started bussing [shooting]. They bussed once I think. . . . And then the brown car just took out a handgun and started shooting, too. And I think that’s the one that got . . . [the victim]. And the one that was shooting was Puto, Heriberto Lopez.”

Another witness, Alejandro Ramos, who lived in a house on the comer of Davenport Avenue and Kossuth Street, testified that he was on the porch of his house when he noticed Morales driving a gray Mazda automobile along Davenport Avenue that turned into Kossuth Street. Originally, the witness stated that when he saw the gray car from his porch, he could not identify any of the four people in it other than Morales. He further testified that he did not notice a brown car in the area.

Ramos then testified that about one-half hour later, while he was still on his porch, he heard four gunshots coming from the comer of Davenport Avenue and Winthrop Street near where the Cmkovic brothers were playing basketball. He then testified that he saw the Cmkovic brothers running toward him, at which time he left his porch and ran toward them. He further testified that by the time he reached the brothers, the victim “was already on the floor.”

Later that evening, at approximately 8 p.m., Ramos gave a statement to Detective James Ponteau, in which he said that Morales was responsible for shooting the victim. After the witness gave his statement, he testified that Ponteau showed him “a lot” of photographs in his police car. From the photographs that were shown to him, the witness selected those of the gray Mazda automobile, Morales, a person whom he knew by the name “Randy” and whom he believed was in the car, and the defendant, whom the witness testified was in the gray car at the time of the shooting.

The next witness to testify was Paul Cmkovic, the victim’s brother. He stated that he had known Morales for a couple of years, and that he and his brother had fought Morales on several occasions. He further testified that Morales was a member of a gang known as the “Liberty Street Posse.” The witness stated that he knew Lopez and he knew that Lopez was friendly with Morales. He also testified that he was acquainted with the defendant, whom he identified in the courtroom. He stated that he had known the defendant for approximately two years, and that the defendant was friendly with both Morales and Lopez. He stated that one week before his brother was killed, he had a fight with the defendant and, as they fought, ten to fifteen youths from the “Liberty Street Posse” came running around the comer and jumped on him.

Paul Crnkovic testified that on the day that his brother was shot, he saw Lopez “hanging out” of and shooting from a brown car. He testified further that as Lopez was shooting at him and his brother, he turned around, started to mn, heard his brother scream and, when he looked back, saw the defendant also shooting at him. He explained that he and his brother did not run toward the Evergreen Cemetery because the gray car was blocking the way, and “they were shooting at us.”

In his testimony, Paul Crnkovic identified Morales as the driver of the gray car, the defendant as the front passenger in the gray car and Lopez as the front passenger in the brown car. When he was asked which car, the brown or the gray car, the lethal shots were fired from, he responded, “I figure the brown car, because, after the second shot out of that car, I heard my brother scream.”

I

The defendant concedes that his claim of insufficiency of the evidence was not properly preserved at trial and now seeks appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “It is well settled that claims of insufficiency of the evidence are reviewable under Golding because any defendant found guilty on the basis of insufficient evidence has been deprived of his constitutional rights not to be convicted except on evidence that convinces the jury beyond a reasonable doubt of the existence of every element of the offenses at issue.” State v. Toro, 62 Conn. App. 635, 638-39, 772 A.2d 648, cert. denied, 256 Conn. 923, 774 A.2d 141 (2001). Because the defendant’s claim involves a challenge to the sufficiency of the evidence, we review his claim.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong [ed] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . .

“Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . State v. Bradley, 60 Conn. App. 534, 540-41, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000).” State v. Toro, supra, 62 Conn. App. 639-41.

In claiming that the evidence was insufficient, the defendant focuses mainly on the requirement of § 53-8 that to be convicted as an accessory, one must be found to have “intentionally aided another person to engage in conduct which constituted manslaughter in the first degree.” The evidence indicated that the occupants of the gray car, with Morales in the driver’s seat and the defendant in the passenger seat, and those of the brown car, with Alex Romero in the driver’s seat and Lopez in the passenger seat, were acting in concert to prevent the victim and Paul Crnkovic from escaping. See In re David M., 29 Conn. App. 499, 505, 615 A.2d 1082 (1992). Both cars arrived at the location on Davenport Avenue, where the occupants were able to observe the two brothers at approximately the same time, and proceeded slowly along Davenport Avenue, the brown car trailing the gray car at a short distance. Lopez started shooting at the Cmkovics from the brown car with a .38 caliber revolver and fired the bullet that hit the victim.

We conclude that the jury, in determining that the defendant was guilty as an accessory to manslaughter in the first degree, was entitled to rely on Paul Cmkovic’s testimony that the defendant was firing at him (Paul) as he was running along Davenport Avenue. That testimony alone is sufficient to justify an inference that the defendant intentionally aided the other members of the Liberty Street gang — Morales, Lopez, Romero and any others at the scene of the crime — in engaging in “conduct which constituted manslaughter in the first degree.”

In a jury trial, it is the jury, not the court, that evaluates the testimony and returns the verdict. So long as the verdict is reasonably supported by the evidence, the court cannot reverse it even though the court might prefer a different outcome. We conclude that there was sufficient evidence to support the jury’s verdict that the defendant was guilty as an accessory to the crime of manslaughter in the first degree in violation of § 53a-55 (a) and § 53a-8 (a).

II

The defendant next claims that the court improperly instructed the jury regarding consciousness of guilt, although he did not raise any objection to that part of the charge at trial. Despite the lack of any objection at trial, the defendant’s claim is reviewable if it satisfies the requirements for a claim of unpreserved constitutional error as set forth in State v. Golding, supra, 213 Conn. 239-40. See footnote 4.

The court’s charge on consciousness of guilt was as follows: “Now, the law of our state recognizes that certain conduct may be considered by you to show consciousness of guilt. When a person is on trial for a criminal offense, it is proper to show his conduct as well as any declarations made by him subsequent to the alleged criminal offense which may have been influenced by that act. The state here claims that some statements made by the defendant to the police were false.

“If you find that the defendant intentionally did make material false statements to the police in connection with the alleged crime, you may find that such statements tend to show a consciousness of guilt. In other words, from any material statements made by the defendant subsequent to the criminal act alleged, which are shown to be intentionally false, you may fairly infer consciousness of guilt if you find such inference is reasonable.

“Such statements when shown to be false may be circumstantial evidence of consciousness of guilt. If you find that the defendant’s acts or words show consciousness of guilt, you may use that inference along with the other facts of the case to determine whether he has been proven guilty of the crimes charged beyond a reasonable doubt.”

“Evidence that an accused had made false statements tending to exculpate him from involvement in the crimes charged has commonly been deemed to support a jury charge on consciousness of guilt.” State v. Ham, 55 Conn. App. 281, 291, 739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d 1128 (1999). Such a charge “may be given when a party has made material misstatements because such fabrication or falsification implies that that party believes his or her case to be weak or unfounded.” State v. Banks, 194 Conn. 617, 621, 484 A.2d 444 (1984). The defendant argues, however, that the charge in this case was improper because it effectively lessened the state’s burden of proof on the element of intent.

A claim challenging an instruction that mandates a particular inference adverse to a defendant may sufficiently implicate constitutional rights to satisfy the second condition of Golding, i.e., that the “claim is of constitutional magnitude alleging the violation of a fundamental right . . . .” State v. Golding, supra, 213 Conn. 239-40. The language used by the court in this case, however, is plainly permissive and not mandatory. “The instruction merely identified a permissive inference that the jury might draw from the defendant’s false statement, an item of circumstantial evidence.” State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991): The defendant’s claim is thus properly viewed as evidentiary rather than constitutional in significance. See id., 166. Because we conclude that the defendant’s claim is not of constitutional magnitude, we need not consider whether the remaining requirements of Golding have been satisfied. See id. The failure of the defendant to take an exception to the charge precludes further review.

The defendant claims that the court committed an additional error in its instruction on the element of intent. The court charged the jury on intent as follows: “Under the law, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct. What a man’s intention has been is necessarily veiy largely a matter of inference. A man may take the [witness] stand and testify directly as to what his intention was. And that testimony you can believe or not, according to whether it warrants belief. . . . The only way in which a jury can determine what a person’s intention was at any given time, aside from the man’s own testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and from those infer what his intention was.”

The defendant claims that this portion of the charge unduly emphasized the absence of his testimony during trial and amounts to an improper comment on his failure to testify. Prior to that portion of the charge, however, the court had instructed the jury that “[i]n this case, the defendant has elected not to testify in person. This fact does not create any presumption against him or permit you to draw any inference unfavorable to him for this reason. You are instructed that you must not permit the defendant’s election not to testify in person to weigh against him or enter into your decision in any way whatsoever.”

We are not persuaded that the phrases, “[a] man may take the [witness] stand and testify directly as to what his intention was” and “aside from the man’s own testimony,” even remotely amount to a comment on the defendant’s election not to testify, especially in view of the court’s earlier instruction that no negative inference should be drawn against the defendant on the basis of his election not to testify. We conclude that the charge was not improper when considered in its entirety, read as a whole and judged by its total effect rather than its individual component parts. See State v. Valinski, 254 Conn. 107, 119-20, 756 A.2d 1250 (2000).

Ill

Finally, the defendant claims that the court improperly charged the jury regarding reasonable doubt. Specifically, he claims that the charge improperly (1) diluted the state’s burden of proof by using language analogous to, but even stronger than, the “two inference charge,” which misled jurors into believing that he had some burden to convince them of a “reasonable theory consonant with innocence,” (2) included “ingenuity of counsel language” and (3) included language that a reasonable doubt is “such a doubt as in serious affairs which concern yourselves you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act on it in matters of importance.” We disagree.

The defendant again concedes that he did not raise these claims before the trial court by excepting to the charge and argues that he is entitled to review under State v. Golding, supra, 213 Conn. 239-40. The defendant does not meet the third prong of the Golding test and, thus, his claims must fail.

“Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that clearly deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction.” State v. Tate, 59 Conn. App. 282, 286, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000).

A

In his appellate brief, the defendant relies on State v. Griffin, 253 Conn. 195, 749 A.2d 1192 (2000), in which our Supreme Court approved a similar charge by a trial court and upheld that court’s judgment, but nevertheless instructed that “in the future, our trial courts [should] refrain from using the ‘two-inference’ language so as to avoid any such possible misunderstanding.” Id., 210. In the present case, the court rendered judgment on May 6, 1994, and its decision preceded Griffin by six years. Our Supreme Court’s instruction that the “two inference” charge be abandoned, therefore, cannot be applied to this case. We conclude that the charge given did not deprive the defendant of a fair trial.

B

The defendant also challenges the portion of the charge instructing the jury that a reasonable doubt “is not a doubt suggested by the ingenuity of counsel, which is not warranted by the evidence,” and relies on State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). In Taylor, the court commented that the phrase “ingenuity of counsel,” taken in isolation, conceivably could misdirect the jury’s attention and urged trial courts to avoid its further use. The court, nevertheless, affirmed the judgment on the ground that it had previously approved similar language and that these phrases did not, “when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise misle[ad] the jury in any way.” (Internal quotation marks omitted.) Id. That decision was released on December 31, 1996, approximately two years after the judgment in this case and, accordingly, cannot be applied to this case. We conclude, therefore, that the charge given in this case did not deprive the defendant of a fair trial.

C

The defendant finally challenges the portion of the charge in which the court instructed the jury that a reasonable doubt “is such a doubt as in serious affairs which concern yourselves you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act on it in matters of importance.” In State v. Griffin, supra, 253 Conn. 195, our Supreme Court upheld the constitutionality of “an explanation that a reasonable doubt is a doubt that would cause a reasonably prudent person to hesitate to act in matters of importance.” (Internal quotation marks omitted.) Id., 207. In this case, the challenged jury instruction did not constitute a clear constitutional violation depriving the defendant of a fair trial because it is not reasonably possible that the jury was misled by the court’s instruction. Because the jury charge did not deprive the defendant of a fair trial, we conclude that his claims fail to meet the third requirement of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       On the morning of May 9, 1991, Ramos gave a second statement to Ponteau, stating that “[he] didn’t know who was doing the shooting.”

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

       In State v. Lemoine, 256 Conn. 193, 205 n.13, 770 A.2d 491 (2001), our Supreme Court explained that a “two-inference instruction provides that, if two conclusions reasonably can be drawn from the evidence, one of guilt and one of innocence, the jury must adopt the conclusion of innocence.” (Internal quotation marks omitted.)

       See footnote 4.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    CONNECTICUT NATIONAL BANK v. GEORGE W. GAGER
    (AC 21457)
    Landau, Pellegrino and Daly, Js.
    Argued September 12
    officially released November 13, 2001

      Susan M. Phillips, with whom was Andrew Brand, for the appellant (defendant).

      Paul M. Geraghty, for the appellee (substitute plaintiff).
   Opinion

LANDAU, J.

In this mortgage foreclosure action, the defendant, George W. Gager, appeals from the judgment of the trial court granting the postjudgment motion of the substitute plaintiff, Anne D. Sanger, to correct the record of a prior court order. The defendant claims that the court improperly granted the motion because there was no evidence of a clerical impropriety. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 1990, the original plaintiff, Connecticut National Bank (bank), commenced a foreclosure action against the defendant involving multiple properties. In July, 1994, the parties entered into a stipulated judgment of strict foreclosure. The stipulated judgment provided that the bank could file a motion to open and modify the judgment for the purpose of withdrawing the foreclosure action as to certain designated properties.

In August, 1994, the bank filed a motion to open the judgment, to extend the law days and to withdraw the foreclosure action as to the designated properties. On September 12, 1994, the court heard argument on the motion at the short calendar. At that time, Sanger was substituted as the plaintiff and was represented by counsel, but the defendant did not appear and was not represented by counsel. The court issued an oral order at the close of the hearing, and the clerk of the court recorded the order on the last page of the motion by making several written notations. The notations consisted of a circle around the word “granted,” a line through the word “denied,” the date, “9-12-94,” and the following sentences: “The new law day is 10-11-94. All other terms of the judgment shall remain the same (Leuba, J.).” The clerk also crossed out the word “Judge,” immediately below the signature line, and signed his own name above the word “Clerk.”

Almost six years later, the plaintiff filed a motion to correct the record. In her motion, the plaintiff claimed that the written notations on the trial court’s order contained a scrivener’s error and that the error should be corrected to reflect that the court had intended only to set new law days following her substitution as the plaintiff, not to approve withdrawal of the foreclosure action against the designated properties. The parties submitted transcripts of the 1994 hearing as exhibits with their memoranda of law.

Following oral argument, the court granted the motion to correct the record as the plaintiff requested, but did not issue a written memorandum of decision. Thereafter, the defendant filed a motion for articulation. In its articulation, the court stated that “[t]he motion to correct was granted because all it did was correct a scrivener’s error of the clerk in a hearing before Judge Leuba. The correction merely restated the correct order of the court.” This appeal followed.

The defendant’s claim on appeal is that the court improperly concluded that there was a scrivener’s error in the 1994 order. We decline to review this claim.

The defendant’s claim involves the trial court’s fact-finding function. “The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Lauver v. Planning & Zoning Commission, 60 Conn. App. 504, 509, 760 A.2d 513 (2000).

“A motion to correct [a] clerical error is one in which no change is sought in the judgment rendered by the court but only in an alleged improper recording of that judgment; its purpose is to make the record conform to what actually took place.” 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1971) § 207 (b), p. 853. We must, therefore, determine, in view of the evidence, whether the trial court’s conclusion that the written record of judgment did not reflect the express intent of the court was clearly erroneous.

It is the appellant’s burden to provide an adequate record for review. See Practice Book § 60-5; Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 60 Conn. App. 842, 852, 763 A.2d 1049 (2000). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Greene v. Perry, 62 Conn. App. 338, 344, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001).

“One specific purpose of a motion for articulation of the factual basis of a trial court’s decision is to clarify an ambiguity or incompleteness in the legal reasoning of the trial court in reaching its decision.” (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 383, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). Where, however, a “trial court fails to answer a motion for articulation or does so incompletely, the appellant should seek a further articulation. . . . When a party is dissatisfied with the trial court’s response to a motion for articulation, he [or she] may, and indeed under appropriate circumstances he [or she] must, seek immediate appeal of the rectification memorandum to this court via a motion for review.” (Citation omitted; internal quotation marks omitted.) Reader v. Cassarino, 51 Conn. App. 292, 295-96, 721 A.2d 911 (1998).

Here, although the defendant requested that the trial court articulate the basis for its decision, the court merely responded that “[t]he motion to correct was granted because all it did was correct a scrivener’s error of the clerk . . . .’’It did not articulate the reasoning used in reaching its conclusion. Moreover, the defendant failed to avail himself of the procedural vehicles that might have remedied this deficiency in the record; see id., 296; because he did not request a further articulation pursuant to Practice Book § 66-5 and did not file a motion for review of the trial court’s articulation. Id. For this court to determine how the trial court arrived at its decision without the benefit of a more detailed explanation would be speculative. See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 60 Conn. App. 851. It is not our role to speculate. Id. Accordingly, we decline to review this claim.

The judgment is aiTirmed.

In this opinion the other judges concurred.

       Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript, or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. . . .”

       Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. ...”

       In light of the inadequate record, we also decline to review the defendant’s claims that (1) the plaintiff offered insufficient evidence that the court’s intent is not reflected in the written judgment, and (2) the granting of the motion to correct will result in undermining the process of searching and certifying title in Connecticut.


author: LAVERY, C. J.

text:
    NICHOLAS R. BARZETTI v. MARIA MARUCCI
    (AC 21446)
    Lavery, C. J., and Foti and Daly, Js.
    Argued September 10
    officially released November 13, 2001

      Norman J. Voog, with whom was Christopher J. Molyneaux, for the appellant (defendant).

      James R. Mulvey, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, Maria Marucci, appeals from the judgment of the trial court denying her motion for permission to relocate the parties’ minor child. On appeal, she claims that (1) Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), is the appropriate Supreme Court decision to guide the decision of this case, (2) the court improperly applied the decision in Ireland, (3) the court improperly failed to find that she had demonstrated by a preponderance of the evidence that the relocation was for a legitimate purpose and (4) the court improperly denied her motion for reargument. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s claims in this case. The plaintiff, Nicholas R. Barzetti, and the defendant are the parents of a child who was born on August 30,1995. The parties never married. On May 4, 2000, the court, Axelrod, J., entered an order, awarding, inter alia, joint legal and physical custody to the parties, granting the plaintiff custody from Wednesday afternoon to Sunday morning each week and granting the defendant custody for the remainder of the week. In addition, the plaintiff was given the final decision-making authority on all medical decisions, and the defendant was given the final decision-making authority on all other matters involving the education and care of the child.

On June 30, 2000, the defendant filed a motion for permission to relocate the minor child to Georgia, alleging that she was unable to locate housing that would enable her to continue her work as a day care provider. The court, Frankel, J., found that the defendant had not made reasonable efforts to locate employment within Connecticut, that she had refused offers made by the plaintiff to provide her with housing and commercial space, and that her testimony as to the success of her proposed business in Georgia was self-serving and not credible. Accordingly, the court denied her motion, concluding that she had not proven by a preponderance of the evidence that the proposed relocation was for a legitimate purpose and that the proposed location was reasonable in light of that purpose. This appeal followed.

I

The defendant first claims that the decision of our Supreme Court in Ireland controls this case. We decline to review that claim. Because the defendant claimed at trial that Ireland was the appropriate precedent and the trial court agreed that Ireland was the appropriate precedent, the defendant is not aggrieved by the trial court’s decision. See Practice Book § 61-1.

II

The defendant next claims that the court improperly applied the rules in Ireland concerning the amount of evidence that is needed to demonstrate that a proposed parental decision to move to another state is for a legitimate purpose. We disagree.

“Our standard of review in domestic relations cases is a narrow one. We will not review a trial court’s rulings with respect to custody unless the court incorrectly applied the law or could not have reasonably concluded as it did. Duve v. Duve, 25 Conn. App. 262, 266, 594 A.2d 473, cert. denied, 220 Conn. 911, 597 A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992); Hurtado v. Hurtado, 14 Conn. App. 296, 300-301, 541 A.2d 873 (1988).” Janik v. Janik, 61 Conn. App. 175, 178, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001).

In Ireland v. Ireland, supra, 246 Conn. 413, our Supreme Court set forth the burden of a postdissolution custodial parent seeking to relocate. “[T]he custodial parent seeking to relocate must prove, by a preponderance of the evidence, that the proposed relocation is motivated by a legitimate purpose and that the new location bears a reasonable relation to that purpose.” (Emphasis added.) Id., 440. The defendant correctly claims that under Ireland, once the parent seeking to relocate has established a prima facie case that the proposed move is for a legitimate purpose and to a location that is consistent with that purpose, the burden shifts to the opposing parent. That is nothing more than an accurate summary of the Supreme Court’s holding in Ireland.

The defendant goes on, however, to contend that once she has put forward any evidence of a legitimate purpose for the move, that constitutes a prima facie case of legitimacy of purpose unless and until it is rebutted by the other party. With that contention, we cannot agree.

We first note that the defendant has pointed only to the conclusion of the Supreme Court in Ireland. Turning to the conclusion in Ireland, we note the court’s explanation of the standard it set forth: “[A] parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose . . . .” (Emphasis added; internal quotation marks omitted.) Id., 424. That indicates that the Supreme Court did not envision that a mere unrebutted assertion of a legitimate purpose would suffice, but that a quantum of proof would be required.

That brings us to the heart of the issue — what is the quantum of proof required by a custodial parent to meet the first prong of the Ireland test? Although the defendant makes much of the Supreme Court’s use of the phrase, “[o]nce the custodial parent has made such a prima facie showing, the burden shifts”; id., 428; she does not look to what the Supreme Court was referring to when it used the phrase, “such a prima facie showing.”

The normal rules of English grammar would dictate that the phrase “such a prima facie showing” refers to the immediately prior discussion of something needed to be proved. Earlier in the same paragraph of Ireland is the statement that “a custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (1) the proposed relocation is for a legitimate purpose.” (Emphasis added.) Id. That appears to answer the question of what burden of proof the Supreme Court intended for the prima facie showing necessary to shift the burden to the party opposing relocation — the normal burden of proof required in civil cases, namely, a preponderance of the evidence. Once that is met, then the burden shifts to the other party.

That type of two part system, in which one party must first prove a prima facie case by a preponderance of the evidence and then the burden shifts to the other party to rebut that case, is not unique to cases in which a custodial parent seeks permission to relocate outside the state. The same structure exists, for example, in cases involving claims of employment discrimination. “The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason . . . .” (Citations omitted; internal quotation marks omitted.) Beizer v. Dept. of Labor, 56 Conn. App. 347, 356, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).

We therefore conclude that the prima facie showing explained by the Supreme Court in Ireland must be made by a fair preponderance of the evidence before the burden shifts to the other parent to prove that relocation would not be in the best interest of the child.

Ill

The defendant next claims that the court improperly failed to find that she had demonstrated by a preponderance of the evidence that the relocation was for a legitimate purpose. We disagree.

“The defendant essentially asks this court to retry the case and to evaluate the credibility of witnesses and the weight of the evidence. We do not engage in this type of review. See Hoye v. DeWolfe Co., 61 Conn. App. 558, 562, 764 A.2d 1269 (2001). [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. . . . Id.” (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717-18, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

The defendant, in essence, asks us to reconsider whether she did in fact meet her burden of proving by a preponderance of the evidence that her proposed move was for a legitimate purpose, a fact based determination we decline to disturb because it was based on evidence before the court.

IV

The defendant finally claims that the court improperly denied her motion for reargument pursuant to Practice Book § 11-12. We disagree.

“Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion.” Federal Deposit Ins. Corp. v. Thompson, 56 Conn. App. 82, 89, 741 A.2d 972 (1999). In her motion, the defendant made the same claims to the court as she did at trial and failed to present any new claims or authority that would warrant the court’s changing its decision. The court, therefore, had no reason to exercise its discretion in favor of the defendant on the basis of the claims presented in her motion. Furthermore, the defendant failed to address this issue adequately in her brief. The defendant has neither provided this court with meaningful analysis nor cited to any authority as to why the trial court abused its discretion in denying her motion. We therefore deem the issue abandoned. See Taylor v. Taylor, 57 Conn. App. 528, 534, 752 A.2d 1113 (2000); In re Antonio M., 56 Conn. App. 534, 545, 744 A.2d 915 (2000); Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       In its memorandum of decision, the court stated: “The defendant’s position is that Ireland v. Ireland, [supra, 246 Conn. 413] is controlling. . . . This court concludes that Ireland is controlling.”

       Practice Book § 61-1 provides: “An aggrieved party may appeal from a final judgment, except as otherwise provided by law.”

       While we note that this case is not a postdissolution custody case because the parties never married, we conclude that Ireland nonetheless applies. In both cases, the parent initially granted primary custody sought to relocate outside Connecticut.

       We note that Practice Book § 11-12 is entitled, “Motion to Reargue.” We thus treat the defendant’s claim as concerned with the court’s ruling on her motion to reargue.


text:
    JOHN DENBY v. COMMISSIONER OF CORRECTION
    (AC 20499)
    Lavery, C. X, and Landau and Healey, Js.
    Argued September 13
    officially released November 13, 2001

      James Streeto, deputy assistant public defender, for the appellant (petitioner).

      Brace R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Beth Baran, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LANDAU, J.

The petitioner, John Denby, appeals from the judgments of the habeas court dismissing his amended petitions for writs of habeas corpus in which he alleged that he received ineffective assistance of habeas counsel with respect to his first habeas action in which he sought a writ of habeas corpus. On appeal, the petitioner claims that the second habeas court improperly concluded that (1) his right to effective assistance of counsel was not violated with respect to his first habeas action and (2) that he was not innocent of the criminal charges against him. We affirm the judgments of the habeas court.

This case has a lengthy history subsequent to the petitioner’s conviction for narcotics violations. We set out the underlying facts when we affirmed the petitioner’s conviction in State v. Denby, 35 Conn. App. 609, 646 A.2d 909 (1994), aff'd, 235 Conn. 477, 668 A.2d 682 (1995). “On May 17, 1992, New Haven police officers Andrew Muro and Peter Carusone were working in the Newhallville section of New Haven. Muro received information from an informant that the [petitioner] was selling drugs at 51 Lilac Street, which was approximately 820 feet from the Lincoln Basset School. He and Carusone, both of whom knew the [petitioner], drove by the address and saw the [petitioner] on the front porch. They set up a surveillance of the [petitioner’s] activities. Muro watched the front porch from a nearby alley. Carusone remained at a police substation parking lot, ready to assist Muro upon apprehension of the [petitioner].

“Muro observed a female walk up to the porch of the building and heard her say she ‘wanted one.’ The [petitioner] reached into his right pants pocket, pulled out a clear plastic bag, removed an item from it, and handed it to the female. The female then gave the [petitioner] money. A short time later, Muro saw the [petitioner] carry out a second transaction with another individual similar to the previous transaction.

“After informing Carusone of his observations, the officers returned to the premises under surveillance where Muro encountered the [petitioner] in the hallway and arrested him. In his right pocket, the [petitioner] had a clear plastic bag containing packets of white powder that field-tested positive for cocaine.” Id., 612. The petitioner was convicted by a jury of possession of cocaine with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and possession of cocaine with the intent to sell within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a (b).

Subsequent to his direct appeal, the petitioner filed a petition for a writ of habeas corpus alleging that his trial counsel was ineffective. The first habeas court dismissed his petition. This court affirmed the dismissal in a memorandum decision. Denby v. Commissioner of Correction, 47 Conn. App. 931, 707 A.2d 1287, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998). The petitioner then filed three amended petitions for writs of habeas corpus, which alleged that his first habeas counsel had failed to render effective assistance and that he was in fact innocent of the underlying criminal charges because he was drug-dependent. The petitions were consolidated for trial. In a thorough memorandum of decision, the habeas court dismissed the petitions, concluding that the assistance of the petitioner’s first habeas counsel was not deficient and that the petitioner had failed to sustain his burden of proof with respect to his claim of innocence. Following the habeas court’s granting of certification to appeal, the petitioner appealed from the dismissal of his petitions to this court.

I

We first address the petitioner’s claims of ineffective assistance of his first habeas counsel. We disagree with the petitioner’s claims because he has not demonstrated that he was prejudiced by his counsel’s performance, regardless of whether counsel’s performance was deficient.

Our Supreme Court set the standard of review to be afforded an appeal from the dismissal of a habeas corpus petition alleging ineffective assistance of habeas counsel in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). “To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Aillon v. Meachum, [211 Conn. 352, 357, 559 A.2d 206 (1989)]. . . . Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial.” (Internal quotation marks omitted.) Lozada v. Warden, supra, 842-43.

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 6, 761 A.2d 740 (2000).

Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong. See Taft v. Commissioner of Correction, 47 Conn. App. 499, 504, 703 A.2d 1184 (1998). We therefore need not decide whether the petitioner was denied the effective assistance of either his trial or habeas counsel because he has failed to demonstrate that he was prejudiced by his counsels’ assistance, whether or not it was deficient.

Although the petitioner alleged thirteen ways in which his first habeas counsel’s representation was ineffective, at his habeas trial he focused on habeas counsel’s failure to raise claims that his trial counsel did not call expert witnesses and offer his medical records into evidence to prove that he was drug-dependent, did not call an audiologist as an. expert witness to testify that Muro could not have heard the conversation between the petitioner and individuals buying narcotics from him, and did not inform him of an offer to plea bargain. He also focused on the fact that his first habeas counsel did not raise the issue that the petitioner was not represented by counsel at his pretrial and arraignment. The petitioner has pursued all of these claims on appeal, except the claim related to an offer to plea bargain. We address each of these claims in turn, mindful that the petitioner’s claims related to his habeas counsel must fail if his claims of ineffective assistance of trial counsel are unavailing. See Lozada v. Warden, supra, 223 Conn. 842-43.

A

The petitioner’s claim of ineffective assistance of trial counsel with respect to his drug dependency founders in the face of his theory of defense at trial and his claims of actual innocence in his habeas petitions. The substance of the petitioner’s habeas argument is that if his trial counsel had proved that he was drug-dependent, he would not have been convicted of violating §§ 21a-278 (b) and 21a-278a (b) and therefore he would have received a shorter sentence.

The habeas court concluded that the petitioner’s defense of drug dependency, if pressed at trial, would have undermined his claim of innocence. In reaching its conclusion, the habeas court noted that the petitioner testified that he abused drugs and his brother-in-law testified that they used drugs together. The habeas court also reviewed the medical records that the petitioner claimed should have been offered into evidence. The petitioner also testified that he did not sell narcotics. The court stated that “the presentation and emphasis on such evidence would likely have undercut the petitioner’s primary theory of defense — that he didn’t do it. First, many of these records were generated by the department of correction as a result of screenings during prior periods of incarceration, a fact that would otherwise remain unknown to the jury. Second, the more he and his counsel chose to emphasize how much his desire for drugs controlled his actions, the less likely the jury was to believe that the petitioner would not have engaged in the crime of possession with intent to sell. Moreover, at the first habeas trial, the petitioner’s trial counsel testified that he had no recollection of any discussion with the petitioner about a trial strategy that would have attacked the claim that the petitioner was not drug-dependent and admitted the difficulty of advancing such alternative defense theories simultaneously.”

On the basis of our review of the record and the applicable law, we agree with the reasoning of the habeas court and conclude that the petitioner has failed to overcome the Strickland prejudice prong with respect to the assistance rendered by his trial counsel.

B

The petitioner’s second ineffective assistance claim is that his first habeas counsel failed to present a claim that the petitioner was not represented by counsel during his arraignment and plea negotiations in violation of the sixth amendment to the United States constitution. He claims further that his failure to be represented by counsel during these proceedings tainted the entire course of the proceedings against him and caused him prejudice. The habeas court found to the contrary.

The petitioner was not incarcerated while the underlying charges were pending against him because he had posted a $25,000 bond. At the time, he was represented by private counsel on other charges, and he and his family were attempting to secure private counsel on the new charges as well. There is no evidence that the petitioner was not informed of his right to be represented by a public defender if he could not hire private counsel, and there is no evidence that he ever applied for a public defender. To the contrary, he was told repeatedly that he should have an attorney. Eventually, he obtained the services of trial counsel, who was employed by New Haven Legal Assistance. Although he retained trial counsel shortly before trial, counsel was able to prepare adequately. In fact, trial counsel was familiar with the petitioner, having previously represented him in a criminal case that went to trial and in which the petitioner was acquitted. There has been no showing of any prejudice to the petitioner by what appears to have been his choice not to request a public defender to represent him and by postponing the engagement of his trial counsel until shortly before trial. We agree with the habeas court’s analysis of the evidence.

C

The last of the petitioner’s ineffective assistance claims concerns trial counsel's failure to obtain expert testimony to impeach Muro’s testimony as to what he had heard. During the habeas hearing, counsel presented expert testimony from an audiologist to the effect that Muro could not have heard a woman tell the petitioner that she “wanted one” from where he was observing the activity on the porch at 51 Lilac Street. The habeas court concluded that whether a person could hear a conversation 100 feet away was within the realm of ordinary human experience and that the jury needed no assistance from an expert witness in that regard. More importantly, however, the habeas court noted that the more damaging part of the police officer’s testimony concerned what he observed, not what he heard. Muro saw the petitioner hand the woman something that he retrieved from a clear plastic bag in his pocket and receive money in exchange. The contents of the bag later proved to be cocaine. On the basis of what Muro saw, a jury reasonably could have concluded that the petitioner sold cocaine to the woman. We therefore conclude that the petitioner was not prejudiced by his trial counsel’s failure to call an audiologist to provide expert testimony.

II

The petitioner’s last claim is that the habeas court improperly concluded that he was not innocent of the crimes with which he was charged. We do not agree.

In a petition for a writ of habeas corpus, “the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial— he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997).

At trial, the petitioner testified before the jury that he abused drugs. His brother-in-law testified that he and the petitioner used drugs. The jury, however, declined to believe that the petitioner was drug-dependent. The issue was one of credibility. “[T]he credibility of a witness is for the jury to determine.” State v. Morant, 242 Conn. 666, 682, 701 A.2d 1 (1997). This court does not sit as another “juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Cooper, 65 Conn. App. 551, 557-58, 783 A.2d 100 (2001).

During the habeas hearing, the habeas court found the testimony of the petitioner’s expert, Robert San-t’Angelo, wanting, concluding that Sant’Angelo’s testimony at trial would have suffered the same infirmities that it had suffered during the habeas hearing. San-t’Angelo was retained after the petitioner had been arrested and charged with the crimes of which he was convicted. He never had the benefit of examining the petitioner at or near the time of the relevant events. The petitioner therefore failed to prove by clear and convincing evidence that he was a drug-dependent individual and therefore could not have been found guilty of violating §§ 21a-278 (b) and 21a-278a (b). He also failed to establish that no reasonable fact finder would find him innocent of the crimes with which he was charged.

The judgments are affirmed.

In this opinion the other judges concurred.

       Throughout this opinion, references to the habeas petitions and to the habeas court are to the petitioner’s second habeas action, unless otherwise noted.

       General Statutes § 21a-278 (b) provides in relevant pari,: “Any person who . . . distributes, sells . . . dispenses . . . transports with the intent to sell or dispense, possesses with the intent to sell or dispense . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person . . . shall be imprisoned not less than five years nor more than twenty years . . . (Emphasis added.)

       General Statutes (Rev. to 1991) § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278, and who is not, at the time of such action, a drug-dependent person, by . . . distributing, selling . . . transporting with the intent to sell or dispense, possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school shall be imprisoned for a term of three years . . . .” (Emphasis added.)


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ANGEL GUADALUPE
    (AC 20219)
    Foti, Schaller and Dranginis, Js.
    Argued September 10
    officially released November 13, 2001

      Jeffrey D. Cedarfield, with whom, on the brief, was Patrick Tomasiewicz, for the appellant (defendant).

      David M. Greenberg, certified legal intern, with whom were Rita M. Shair, senior assistant state’s attorney, and, on the brief, Scott J. Murphy, state’s attorney, and Mary Rose Pálmese, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Angel Guadalupe, appeals from the judgment of conviction, rendered after a jury-trial, of the crime of criminal impersonation in violation of General Statutes § BSa-lSO. On appeal, the defendant claims that the state failed to present sufficient evidence to support his conviction and that the trial court improperly denied his motion for a judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident underlying this appeal, the defendant was a surety bail bondsman and owned a bail bond company. Part of his livelihood included working as a bail enforcement agent, apprehending individuals who failed to appear in court after having posted bond through him. The defendant previously had been employed by another bail bond company.

On the evening of October 23, 1998, the defendant was working as a bouncer at Sports Palace, a bar in New Britain. Although it was not his regular job, the defendant agreed to work as a bouncer that night, without pay. He did so as a favor to the bar’s owner and because he was looking for someone who had skipped his bail and who, the defendant believed, might patronize the bar that evening. As a bouncer, the defendant was responsible for checking patrons’ identifications, searching patrons for possession of weapons and collecting a cover charge for admission into the bar.

On that same evening, detectives from the statewide narcotics task force, assisted by members of the state liquor commission and officers from the New Britain police department, were conducting an undercover operation to investigate and raid several local establishments, where they suspected underage drinking and narcotics use might occur. Sports Palace was one of the establishments suspected as being a site of such activity, and it was a target of the investigation that evening. The task force’s plan was to send undercover detectives into targeted establishments to conduct observations and then to conduct a raid of the establishment with uniformed police officers to arrest any persons who were violating the law.

At approximately 9 p.m., Detectives Ian Case, Matt Barnwell and David Diaz, all members of the task force, wearing civilian clothing as part of the undercover portion of their investigation, drove an unmarked Ford Mustang to Sports Palace. When the three men approached the entrance to the bar, they encountered the defendant. The defendant searched Case and found a gun tucked in his clothing. After the defendant asked to see a permit for the gun, Case told the defendant that he did not want to enter the bar, and the three detectives returned to their vehicle, parked about fifty feet away from the bar.

Case sat in the driver’s seat of the vehicle and notified officers that the group had failed to enter the bar, and that uniformed officers should nevertheless raid the bar. At that time, Barnwell squatted down near the passenger door of the vehicle and conversed with Case through an open window. Diaz stood alongside a nearby fence. The defendant observed the activities of the three detectives and became suspicious of them. The defendant left the entrance to the bar and went to the trunk of his vehicle, parked approximately thirty feet behind the detectives’ vehicle. He retrieved a gun, handcuffs and a badge that his previous employer had issued to him. He intended to intimidate the detectives into leaving the area. The defendant then ran toward the detectives’ vehicle, pointing both his gun and his badge at Case, and yelled, “[P]ut your hands up in the air.” Barn-well ran to the front of the vehicle to take cover while both Case and Diaz attempted to defuse the situation by telling the defendant that they were police officers.

The defendant walked toward the front of the vehicle and found Barnwell crouched down in front of the vehicle. By that time, Barnwell had drawn his gun, and both he and the defendant were pointing guns at one another. Two uniformed New Britain police officers, Rodney Williams and Daniel McAloon, arrived on the scene and came upon the standoff. Both officers noticed the defendant pointing his gun and badge at Barnwell. Both officers told the defendant several times to drop his weapon. McAloon realized that he knew the defendant, and it was not until he shouted, “Angel, drop the gun,” that the defendant obeyed the officers’ orders. Thereafter, the officers arrested the defendant. Additional facts will be set forth as necessary.

On appeal, the defendant argues that the court improperly denied his motion for a judgment of acquittal because the state failed to prove beyond a reasonable doubt that the badge that he displayed during the incident was one that lawfully distinguished a public servant. Specifically, he argues that the evidence adduced at trial concerning his badge did not support, but, rather, refuted the jury’s finding that his badge lawfully distinguished him as a public servant for purposes of § 53a-130. In that regard, he argues that the evidence demonstrated only that the badge “looked like a law enforcement agent’s badge” or that the badge identified the defendant as a fugitive recovery agent. He argues that neither of those findings sufficiently supports his conviction.

We first articulate the familiar standard of review applicable to the defendant’s claim. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Citation omitted; internal quotation marks omitted.) State v. Carter, 64 Conn. App. 631, 636, 781 A.2d 376, cert. denied, 258 Conn. 914, 782 A.2d 1247 (2001).

We next define the essential element that is involved in this appeal and that is integral to the crime of which the defendant stands convicted. The relevant portion of § 53a-130 (a) (3) provides that a person is guilty of criminal impersonation when he or she “pretends to be a public servant other than a sworn member of an organized local police department or the Division of State Police within the Department of Public Safety, or wears or displays without authority any . . . badge ... by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.” This court in State v. Giorgio, 2 Conn. App. 204, 209-10, 477 A.2d 134 (1984), determined that the definition of “public servant” in General Statutes § 53a-146 (3) applies to § 53a-130. Section 53a-146 (3) provides that a “ ‘[p]ublic servant’ is an officer or employee of government, elected or appointed, and any person participating as an advisor, consultant or otherwise, paid or unpaid, in performing a governmental function.” Section 53a-146 (4) provides that “ ‘ [government’ includes any branch, subdivision or agency of the state or any locality within it.”

In the present case, the state bore the burden of proving the following elements beyond a reasonable doubt: (1) the defendant displayed a badge; (2) the badge was of such nature that it would lawfully distinguish its holder to be a member of the class of persons described in the statute; (3) the defendant lacked any authority to display the badge; and (4) the defendant displayed the badge with the specific intent to induce another to submit to such pretended official authority or otherwise to act in reliance on such authority. The defendant concedes that he displayed a badge during the incident and does not address the third or fourth elements. Accordingly, our analysis concerns whether the state satisfied its burden of proof for the second element of the offense.

At trial, the detectives and officers involved in the incident provided detailed testimony about the defendant’s badge. Diaz testified that the defendant held “some type of gold badge [with] gold coloring.” McAloon testified that the badge that the defendant used looked very similar to his own police badge. Williams testified that although he knew at the time of trial that the defendant’s badge was inscribed with the words “special agent,” he did not know the specific type of badge that the defendant possessed at the time of the incident. He testified that at that time, the badge appeared to be a law enforcement badge of some type.

During redirect examination, McAloon displayed his own New Britain police department badge, and held it next to the defendant’s badge and testified as to their similarities. The defendant testified that his badge did appear to be similar “in color” to McAloon’s badge, but that his badge was not similar “in symbol and what it says.” He further testified, however, that he was not certain if such details would be distinguishable from a distance of more than ten feet. Peter Torres, who worked at the door of Sports Palace on the night of the incident and who witnessed much of the incident, testified that he saw the defendant remove his badge from his trunk, but that he could not see the exact type of badge that the defendant displayed that evening.

After reviewing the record, we conclude that the jury had before it adequate evidence upon which to find that the defendant displayed what appeared to be a lawfully issued badge for a member of the class of persons described in § 53a-130. We reach that conclusion on the basis of the witness’ perceptions of the defendant’s badge during the incident and the factual scenario in which the defendant displayed it. We reiterate that this court is bound to construe the evidence presented in support of this element of the crime “in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 540, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). In this case, it would have been appropriate for the jury to have considered the distances between the detectives and officers, and from the defendant during the incident, the time of day when the incident occurred, the circumstances under which the defendant acted and the manner in which the defendant displayed his badge. It would be neither unreasonable nor irrational for the jury to have concluded that the defendant displayed a badge that appeared lawfully to distinguish him to be within the large class of persons described in the statute and that he intended to induce others to submit to this pretended authority.

Our case law reflects the expectation that jurors will not only weigh conflicting evidence and resolve issues of credibility as they resolve factual issues, but also that they will consider evidence on the basis of their common sense. Jurors are not “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Valinski, 61 Conn. App. 576, 582, 767 A.2d 746 (2001). In that light, the court properly instructed the jurors that they were free to “draw reasonable and logical” inferences from the evidence before them.

Although the defendant argues that the only reasonable finding supported by the evidence was that the badge looked like a law enforcement agent’s badge or that it was a fugitive recovery agent badge, we conclude otherwise. Witnesses testified not only that the badge looked like a law enforcement agent’s badge, but that they were unable to tell what type of badge the defendant was displaying during the incident. The jury could infer reasonably, on the basis of the aforementioned factors, that the defendant displayed what appeared to be a badge that any number of public servants might lawfully carry.

The defendant also argues that the statute required the state to “prove that the badge displayed by the defendant identified him as a public servant and did so by means prescribed by law.” He further argues that “in order for a badge to lawfully distinguish a public servant, it must identify the bearer as such and must do so in a manner prescribed by law.” In that regard, the defendant posits that the state was required to prove that his badge was an authentic badge in the sense that it was a badge that lawfully distinguished its bearer to be of the class of persons described in the statute.

Our interpretation of the statute is to the contrary. The defendant in State v. Giorgio, supra, 2 Conn. App. 204, the recipient of an honorary deputy sheriffs badge that conferred on him no power or authority, stopped the victim in that case as she drove on Interstate 95 in New Haven. After he approached her car, he flashed his silver badge at her and told her she had been speeding. While considering the issues before it on appeal, this court stated that “[t]he defendant’s contention that the state was required to prove which specific public servant the defendant was impersonating [was] baseless.” (Emphasis added.) Id., 211. The defendant submits that Giorgio is inapposite, arguing that it concerns only that portion of § 53a-130 (a) (3) that deals with individuals who pretend to be public servants. We do not interpret Giorgio or the statute so narrowly.

When interpreting statutes, we afford statutory language its plain and ordinary meaning and “refrain from reading into statutes provisions that are not clearly stated . . . .” State v. Stewart, 64 Conn. App. 340, 349, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). The court must also use its common sense and “avoid a consequence which fails to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain.” (Internal quotation marks omitted.) Visco v. Cody, 16 Conn. App. 444, 448, 547 A.2d 935 (1988). Likewise, “the court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature.” (Internal quotation marks omitted.) State v. Harris, 32 Conn. App. 831, 840, 632 A.2d 50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994).

We do not interpret § 53a-130 to require the use of an official, or real, badge. During oral argument, the defendant conceded that the use of an “identical replica,” though not officially issued, would give rise to a conviction under the statute. That reflects the inherent difficulty in interpreting the statute in the manner that he suggests while still interpreting the statute to achieve its logical and rational ends. The goal of the statute is to prohibit criminal impersonation. Among other things, the statute prohibits an individual from using a badge with the intent of inducing another to submit to authority that he or she does not possess. Because the state proved beyond a reasonable doubt that the defendant used a badge that appeared to lawfully distinguish him and that he used the badge in the manner proscribed by the statute, we are unable to see how the issue of the badge’s lineage or authenticity bears on the goals that the legislature sought to achieve.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-130 (a) provides in relevant part: “A person is guilty of criminal impersonation when he . . . (3) pretends to be a public servant other than a sworn member of an organized local police department or the Division of State Police within the Department of Public Safety, or wears or displays without authority any uniform, badge or shield by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”
      The state also charged the defendant with one count of reckless endangerment in the first degree in violation of General Statutes § 53a-63, one count of threatening in violation of General Statutes § 53a-62 and one count of breach of the peace in violation of General Statutes § 53a-181. The jury returned verdicts of not guilty on each of those counts.


author: PER CURIAM.

text:
    PRIMARY CONSTRUCTION SERVICES, LLC v. NORTH AMERICAN SPECIALTY INSURANCE COMPANY
    (AC 21368)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Steven J. Leo filed a brief for the appellant (defendant).

      Richard M. Franchi filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The plaintiff, Primary Construction Services, LLC, brought this action against the defendant, North American Specialty Insurance Company, seeking to recover on a payment bond and a performance bond issued by the defendant. The bonds covered a general contractor, G & T Construction Services, Inc. (G & T Services), for a certain construction project in Westbrook. The plaintiff claimed that it had contracted with G & T Services as a subcontractor and that G & T Services had breached its contract by failing to pay the plaintiff for its work on the project. The parties disagreed over the original contract price and the extent of the work that the plaintiff had performed. Following a trial, the court found in favor of the plaintiff and awarded damages accordingly. The defendant thereafter brought the present appeal, challenging the court’s determination of the original contract price. We affirm the judgment of the trial court.

The crux of this appeal is whether the court properly determined the original contract price for the plaintiffs work on the project. The defendant argues in its brief that the court improperly calculated the contract price by including the value of certain metal grates, which, it argues, were an option that the plaintiff never supplied.

We review challenges to a trial court’s factual determinations under the clearly erroneous standard of review. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) 225 Associates v. Connecticut Housing Finance Authority, 65 Conn. App. 112, 116, 782 A.2d 189 (2001).

The court found that the parties had agreed to several modifications to the plaintiffs original estimate after G & T Services had accepted the plaintiffs bid to perform work as a subcontractor. The court found that the evidence established the original contract price as $53,062.30. The court then deducted from that amount the value of items that G & T Services had agreed to provide and further deducted from that figure the amount that G & T services already had paid the plaintiff to reach its final award (representing the amount owed the plaintiff on the contract).

The defendant argues that the court improperly determined the original contract price by including the value of certain metal grates that, it argues, were an option that the plaintiff never supplied. We are not persuaded. The court’s discussion of how it reached the contract price is limited. The court did not state that it included the value of those grates when it arrived at the contract price, and we decline to join the defendant in so speculating.

It is apparent that the present dispute required the court to make a series of factual determinations concerning what modifications the parties made to the plaintiffs original estimate. Given the varied factual issues before the trial court and the limited record before us, we are unable to review the defendant’s claim regarding the metal grates.

“Without any specific findings of fact ... we cannot determine the basis of the court’s ruling . . . .” (Internal quotation marks omitted.) State v. Arisco, 39 Conn. App. 11, 15, 663 A.2d 442 (1995). Furthermore, “we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Internal quotation marks omitted.) Id., 16. We have noted on several occasions that an appellant bears the burden of furnishing this court with an adequate record to review. See Practice Book § 61-10. Where a trial court’s decision “does not include adequate findings of fact . . . the appellant must seek an articulation of the trial court’s decision as to the relevant facts it found and the underlying reasons for it.” (Internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693, 697, 767 A.2d 1232 (2001); see Practice Book § 66-5.

The judgment is affirmed.


text:
    JOHN PITTMAN v. COMMISSIONER OF CORRECTION
    (AC 20073)
    Foü, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Norman A. Pattis, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, John Pittman, appeals from the judgment dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly determined that he was not deprived of the effective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and sentenced to sixty years imprisonment. Our Supreme Court affirmed his conviction in State v. Pittman, 209 Conn. 596, 553 A.2d 155 (1989). The habeas court denied the petitioner’s amended petition for a writ of habeas corpus, and, on the granting of certification, the petitioner appealed to this court.

The petitioner claims that his attorney discussed presenting a demonstration to the jury using a mannequin, the victim’s clothing and knives similar to those owned by the petitioner. No such demonstration was conducted. The habeas court, in its memorandum of decision, concluded that the petitioner failed to prove that the use of a mannequin would have affected the result of the trial or that trial counsel’s performance prejudiced the petitioner.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. ” (Citation omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 737-38, 779 A.2d 156 (2001).

“[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Id., 738.

On the basis of our review of the record, we conclude that the habeas court properly determined that the petitioner failed to satisfy his burden of establishing that his trial counsel provided ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The judgment is affirmed.


text:
    MICHAEL J. YORGENSEN ET AL. v. BROPHY AHERN DEVELOPMENT COMPANY ET AL.
    (AC 21355)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Patrick L. Kennedy filed a brief for the appellants (named defendant et al.).

      Michael J. Yorgensen, pro se, the appellee (named plaintiff), filed a brief.
   Opinion

PER CURIAM.

The plaintiffs, Michael Yorgensen and Monique Yorgensen, lessors of a rental unit of the defendant Brophy Ahem Development Company, brought this action to recover monetary damages arising from the failure of the defendants, the development company and its owners, to return their security deposit at the end of their lease. At the conclusion of the lease, the defendants retained $1334 of the deposit to cover damages for cleaning and repairs to the unit and an additional $37.80 in interest. After a court trial, the court concluded that the plaintiffs were properly entitled to a refund of the balance of their security deposit of $1165.60. The court also concluded that the plaintiffs were entitled to punitive damages, pursuant to General Statutes § 47a-21 (d) (2), twice the amount of their security deposit. After the court denied the defendants’ motion for reconsideration, the defendants brought the present appeal, arguing that the court improperly awarded double damages under the statute because the plaintiffs did not specifically seek such punitive damages in their complaint. We affirm the judgment of the trial court.

Because this issue is one of law, our review is plenary. Practice Book § 10-3 (a) provides that “[w]hen any claim made in a complaint, cross complaint, special defense or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” As this court has noted, however, “our courts have held that the requirement that the pleader specifically identify the statute on which he relies is directory rather than mandatory.” Criscuolo v. Mauro Motors, Inc., 58 Conn. App. 537, 545, 754 A.2d 810 (2000). Similarly, our Supreme Court has held that a trial court may award damages in excess of the amount stated in the demand for relief attached to a plaintiffs complaint. See Southington ’84 Associates v. Silver Dollar Stores, Inc., 237 Conn. 758, 762, 678 A.2d 968 (1996).

These cases make clear that the proper test to apply is whether the court's action causes unfair surprise or prejudice to the defendants. See id.; Criscuolo v. Mauro Motors, Inc., supra, 58 Conn. App. 547. This test is appropriate because, as this court has observed, “[t]he modem trend ... is to construe pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 765, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). The complaint should “fairly put the defendant on notice of the claims against him.” (Internal quotation marks omitted.) Id., 764.

Applying these considerations to the present case, we cannot say that the court’s award in any way caused the defendants to suffer prejudice or surprise. The plaintiffs originally brought their complaint in small claims court. The allegations in that complaint fell squarely within § 47a-21 (d) (2) and formed the basis for the court’s award. Furthermore, the defendants alleged, in an affidavit filed with the court in support of their motion to transfer the case to the regular docket, that they acted “in accordance with Connecticut General Statutes § 47a-21.” It would be disingenuous for the defendants to argue before this court that they were not on notice that the plaintiffs’ claim for damages arose out of § 47a-21 (d) (2). Given that the plaintiffs’ claim fell under the statute and the facts that the defendants cited to the statute and the court based its award on a violation of the terms of the statute, we conclude that the court’s decision is not legally improper.

The judgment is affirmed.

       The plaintiffs alleged that the defendant Brophy Ahem Development Company was owned by the defendants Lawrence Brophy and Kevin Ahem. They subsequently withdrew the action as against Ahem. We refer in this opinion to Brophy Ahem Development Company and Lawrence Brophy as the defendants.

       General Statutes § 47a-21 (d) (2) provides in relevant part: “Any . . . landlord who violates any provision of this subsection shall be hable for twice the amount or value of any security deposit paid by such tenant. . . .”


text:
    ESSAID MEZRIOUI v. COMMISSIONER OF CORRECTION
    (AC 20851)
    Foti, Landau and Dranginis, Js.
    Submitted on briefs September 12
    officially released November 13, 2001

      Sarah F. Summons, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, Timothy J. Sugrue, senior assistant state’s attorney, and Edward R. Narus, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Essaid Mezrioui, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus in which he alleged ineffective assistance of counsel. The petitioner claims that the court improperly concluded that defense counsel (1) performed a sufficient pretrial investigation, (2) adequately examined and cross-examined witnesses, (3) did not fail to call certain witnesses and (4) adequately cross-examined the alleged victim. We affirm the judgment of the habeas court.

We must first set forth our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel .... In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 70-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).

On the basis of our review of the record, we conclude that the petitioner did not overcome the presumption that under the circumstances, trial counsel employed sound trial strategy. See Hull v. Warden, 32 Conn. App. 170, 175-76, 628 A.2d 32, cert. denied, 227 Conn. 920, 632 A.2d 691 (1993). The petitioner failed to sustain his burden of proving that counsel’s performance was deficient and that the petitioner suffered actual prejudice. See Strickland v. Washington, supra, 466 U.S. 687. The habeas court properly concluded as it did.

The judgment is affirmed.