author: BISHOP, J.

text:
    JOHN KEARNEY v. COMMISSIONER OF CORRECTION
    (AC 29766)
    Flynn, C. J., and Bishop and Lavery, Js.

      Argued September 18, 2008
    officially released March 17, 2009

      Todd A. Bussert, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Yamini Menon, former deputy assistant state’s attorney, for the appel-lee (respondent).
   Opinion

BISHOP, J.

The petitioner, John Kearney, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing counts one and two of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that the court (1) improperly denied the petitioner’s right to present “new” allegations of ineffective assistance of trial counsel and (2) improperly dismissed the petitioner’s claim of ineffective assistance of habeas counsel. We reverse the judgment of the habeas court in part.

The following factual and procedural background is relevant to our resolution of the petitioner’s appeal. On December 19, 1995, the petitioner pleaded guilty under the Alford doctrine to the murder of his wife in violation of General Statutes § 53a-54a (a). On January 31,1996, the court sentenced the petitioner to a term of forty-two years in the custody of the commissioner of correction, execution suspended after thirty years and five years probation. The petitioner did not file a direct appeal from the judgment of conviction.

On November 13, 1997, the petitioner filed a pro se petition for a writ of habeas corpus. Subsequently, on December 30,1999, the petitioner’s habeas counsel filed an amended petition for a writ of habeas corpus. In the amended petition, the petitioner alleged (1) ineffective assistance of trial counsel and (2) that the petitioner’s plea was not knowing, intelligent and voluntary. By memorandum of decision dated April 20, 2000, the habeas court dismissed the petitioner’s amended petition for a writ of habeas corpus. The court thereafter granted the petition for certification to appeal. On June 5, 2000, the petitioner appealed from the judgment of the habeas court, and, on December 4, 2001, this court affirmed the judgment. See Kearney v. Commissioner of Correction, 67 Conn. App. 232, 786 A.2d 1180 (2001).

On October 21, 2005, the petitioner filed this second petition for a writ of habeas corpus. In count one of the petition, the petitioner again alleged ineffective assistance of trial counsel, and, in count two, ineffective assistance of habeas counsel. On January 6, 2006, the respondent, the commissioner of correction, filed a motion to dismiss count one of the second petition pursuant to Practice Book § 23-29 (3) as a successive petition and an abuse of the writ. The respondent also claimed that the petitioner was barred from relitigating the claims set forth in count one due to the doctrines of res judicata and collateral estoppel. On May 2, 2006, the habeas court held a hearing regarding the respondent’s motion to dismiss count one of the petitioner’s second petition. By memorandum of decision filed May 16, 2006, the habeas court dismissed count one of the petition on the ground of res judicata. The court also, sua sponte, dismissed count two of the petition on the same ground.

Subsequently, on September 22, 2006, the petitioner filed a petition for certification to appeal, which the habeas court denied on September 26,2006. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner challenges the denial of his petition for certification to appeal as well as the judgment dismissing his petition for a writ of habeas corpus. We conclude that the court did not abuse its discretion in denying certification to appeal from the judgment regarding count one, ineffective assistance of trial counsel, but that the court did abuse its discretion in denying certification to appeal from the dismissal of count two regarding the effectiveness of habeas counsel.

The standard of review and legal principles that guide our resolution of the petitioner’s appeal are clear. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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. . . .

“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. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Citations omitted; internal quotation marks omitted.) J.R. v. Commissioner of Correction, 105 Conn. App. 827, 830-32, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008). Having set forth the applicable legal principles, we now address the petitioner’s claims in turn.

I

The petitioner first claims that the court improperly dismissed his claim of ineffective assistance of trial counsel because his habeas petition raised new allegations not subject to the respondent’s claim of res judi-cata. The habeas court found that the petition was barred by the doctrine of res judicata because judgment previously had been rendered on the same legal claim. Relying on Gagne v. Norton, 189 Conn. 29, 453 A.2d 1162 (1983), the habeas court further concluded that even if the court adopted the petitioner’s argument that the two petitions contained different factual allegations, the former judgment served as an absolute bar to claims that might have been made. “[A] final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved. If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made.” (Emphasis added; internal quotation marks omitted.) Id., 32. We conclude that the habeas court properly dismissed the claim alleging ineffective assistance by trial counsel because the claim was based on the same legal ground as was in the initial petition, and the petitioner has made no claim that the additional factual allegations contained in the present petition in support of his claim of ineffective assistance of trial counsel represent new facts not reasonably available to him at the time of his initial petition.

The following additional facts aid our discussion. The allegations underlying the petitioner’s ineffective assistance of trial counsel claim in the petition at issue are substantially the same as those raised in his prior petition, which also alleged the ineffective assistance of his trial counsel. Paragraphs 17, 18, 19, 20, 23, 24 and 26 of count one of the second petition practically mirror paragraphs 12, 13, 14, 15, 17, 18, 19, and 20 of count one of the first petition. The new allegations in the present petition regarding the effectiveness of trial counsel are set forth in paragraphs 21, 22, 25, and 27 of count one of the petition. Nowhere in the petition does the petitioner aver that these newly alleged facts were not known by him, or not reasonably available to him, when he filed his first habeas petition.

Additionally, the relief that the petitioner requested in both petitions is substantially the same. In the first petition, the petitioner requested the withdrawal of his plea, restoration of the criminal case to the Superior Court docket for further proceedings and restoration of the right to sentence review. In the second petition, the petitioner requested the same relief and that he be released from custody.

The petitioner argues that the habeas court improperly dismissed the first count of the petition at issue because that count “contains allegations of ineffective assistance of criminal trial counsel absent from the petition heard in the first habeas case.” The petitioner appears to believe that the mere assertion of new factual allegations in a second petition in support of the same claim of ineffective assistance of trial counsel raised in an earlier petition is adequate to elude dismissal of the latter petition. Moreover, the petitioner contends that these claims do not constitute either the “same ground” or grounds that were “previously denied” within the narrow meaning of Practice Book § 23-29 (3).

In turn, the respondent argues that the doctrine of res judicata, or claim preclusion, bars relitigation of the petitioner’s ineffective assistance of trial counsel claim and that even if res judicata does not apply, the habeas court’s dismissal of the “new” ineffective claims is sustainable on two alternate grounds: (1) the differing factual allegations pleaded in support of the claim of ineffective assistance of trial counsel in the second habeas petition constitute the same legal “ground” as the claim raised in the prior petition and therefore were dismissed properly pursuant to Practice Book § 23-29 (3); and (2) the “new” allegations in count one constituted an abuse of the writ because the petitioner could have raised them in his first habeas proceeding, and, therefore, they were dismissed properly. Because the petitioner asserted a claim that previously had been adjudicated fully on its merits and has made no showing that the new factual allegations contained in the petition at issue were not available to him when he filed his first petition, we agree with the habeas court that this claim was barred by the doctrine of res judicata. The court, therefore, properly dismissed the claim pursuant to Practice Book § 23-29 (3).

We first analyze the application of the doctrine of res judicata in the habeas context. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. . . . However, [u] ñique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding.” (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 66-67, 951 A.2d 520 (2008).

Thus, a habeas petition may be vulnerable to dismissal by reason of claim preclusion only if it is premised on the same ground actually litigated in a previously dismissed habeas petition. We recognize, therefore, that the application of the doctrine of claim preclusion to a habeas petition is narrower than in a general civil context because of the nature of the Great Writ.

A narrowing of the application of the doctrine of res judicata to habeas proceedings is encapsulated in Practice Book § 23-29, which states: “The judicial authority, may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . .”

Interpreting the interplay between Practice Book § 23-29 and the doctrine of res judicata, our Supreme Court has noted that “[i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841 (1980)], we observed that pursuant to Practice Book § 531 [now § 23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. We emphasized the narrowness of our construction of Practice Book [§ 23-29] by holding that dismissal of a second habeas petition without an evidentiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence. . . . Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed.” (Emphasis added; internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn. App. 180, 188-89, 192, 908 A.2d 581 (2006), appeal dismissed after remand, 112 Conn. App. 137, 962 A.2d 148 (2009).

In sum, the doctrine of res judicata in the habeas context must be read in conjunction with Practice Book § 23-29 (3), which narrows its application. Following this analytical pathway, a second petition alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition. “In this context, a ground has been defined as sufficient legal basis for granting the relief sought.” (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn. App. 300, 306, 950 A.2d 619 (2008). The case at hand parallels this court’s opinion in McClendon v. Commissioner of Correction, 93 Conn. App. 228, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006), in which we stated: “[Wjhere successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” Id., 231. In McClendon, as in this appeal, the petitioner had filed an earlier petition on the same grounds as his subsequent petition. In McClendon, as in this case, the petitioner did not claim in his petition, or make an offer of proof in opposition to the respondent’s motion to dismiss, that the new facts that he alleged in the second petition were not reasonably available to him at the time of the prior petition. We therefore concluded that the habeas court properly dismissed the petition.

Accordingly, in the present case, we conclude that the habeas court properly determined that the judgment rendered by the first habeas court was a judgment on the merits on the issue of ineffective assistance of the petitioner’s trial counsel. We further conclude that the habeas court properly found that the petitioner had an opportunity to litigate fully the effectiveness of his trial counsel in his first habeas proceeding. See Brown v. Commissioner of Correction, 44 Conn. App. 746, 751, 692 A.2d 1285 (1997) (rejecting petitioner’s claim of ineffective assistance of counsel as barred under doctrine of res judicata where petitioner raised additional ineffective assistance claims that could have been raised in first proceeding).

As noted, the petitioner failed to allege that the “new” facts in the second petition were “not reasonably available at the time of the prior petition . . . .” Practice Book § 23-29 (3). The allegations contained in the petitioner’s second habeas petition claiming ineffective assistance of trial counsel constituted the same legal ground as those found in the first habeas petition and simply were expressed in different language. The petitioner reasserted the legal claim in the petition at issue that he had raised in the prior petition, changing only the factual basis of his claim. These “new” allegations could have and should have been raised in his first petition. See Mejia v. Commissioner of Correction, supra, 98 Conn. App. 189.

Because the petitioner asserted a claim that previously had been adjudicated fully on its merits, we agree with the habeas court that this claim was barred by the doctrine of res judicata. Moreover, the petitioner’s contention that the claim raised in the first count of the petition at issue constituted a different legal ground from that raised in the first count of the prior petition is without merit; both petitions presented a claim of ineffective assistance of trial counsel and sought the same relief. As such, this issue is nondebatable among jurists of reason, unresolvable in a manner different from that in which it had been resolved and inadequate to deserve encouragement to proceed further. See Vines v. Commissioner of Correction, 94 Conn. App. 288, 294, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A. 2d 1222 (2006). In sum, we conclude that the petitioner has failed to demonstrate that the habeas court abused its discretion in denying certification to appeal as to this claim of ineffective assistance of trial counsel. The court properly dismissed the first count of the habeas petition.

fi

The petitioner next claims that the court improperly dismissed his claim of ineffective assistance of his habeas counsel as set forth in the second count of this second habeas petition. We agree and conclude that the court abused its discretion by denying the petition for certification to appeal from the judgment dismissing the petition for a writ of habeas corpus.

The following additional facts relate to our discussion of the petitioner’s claim. Count two of the petition claimed, inter alia, that the petitioner’s habeas counsel failed (1) to conduct sufficient investigation into any potential affirmative defenses available to the petitioner, (2) to conduct sufficient investigation into witnesses available to support the petitioner’s potential defenses and how trial counsel did not investigate those defenses, (3) to provide expert testimony to support habeas corpus issues, (4) to satisfy his burden of proof at trial regarding the issue of trial counsel exerting undue influence over the petitioner regarding the petitioner’s decision to plead, (5) to satisfy his burden of proof at trial regarding the issue of violation of the petitioner’s right to due process and (6) to preserve adequately the record for appeal.

The habeas court concluded that because the claim against trial counsel was foreclosed, the petitioner would be unable to show prejudice even if habeas counsel had been ineffective. The court explained: “The second count attempts to ascribe to habeas counsel all of the alleged misdeeds of trial counsel. These allegations were made in the first petition and were addressed by the court. In that proceeding, the trial court’s decision was that the petitioner had not established that trial counsel was ineffective nor that but for his performance the outcome would have been more favorable. That decision was affirmed on appeal. . . . The second count is therefore dismissed.” (Citation omitted.)

On appeal, the respondent concedes that the petitioner is entitled to an evidentiary hearing with respect to his claim of ineffective assistance of habeas counsel, and we agree. Because the petitioner’s claim that his habeas counsel was ineffective was brought for the first time in the petition at issue, it is not subject to dismissal by application of Practice Book § 23-29 (3). Simply put, this new claim is not barred by res judicata. See Mejia v. Commissioner of Correction, supra, 98 Conn. App. 192 (finding claim against prior habeas counsel constituted new ground or legal basis for relief).

The respondent correctly notes that in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court concluded that this court properly reversed the habeas court’s dismissal of a claim of ineffective assistance of habeas counsel and remanded the case for a hearing on that claim. Id., 837-38. In Lozada, the principal issue before our Supreme Court was whether a petitioner could seek a writ of habeas corpus on the ground that his habeas counsel had rendered ineffective assistance. The court first determined that a petitioner is entitled to competent habeas counsel. Id., 838-39. The court then stated: “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. . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” (Citations omitted.) Id., 842-43. Finally, the court concluded that “[t]he claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue.” Id., 844. The teaching of Lozada is that a habeas petitioner is entitled to make a claim that he or she was deprived of effective habeas counsel in a prior petition, and the petitioner is entitled to advance this claim in an evidentiary proceeding. Regardless of the difficult burden undertaken by a habeas petitioner who claims the ineffective assistance of habeas counsel, such a claim is not subject to dismissal on the ground that an earlier habeas petition that was based on the ineffectiveness of trial counsel had been unsuccessful. See Harris v. Commissioner of Correction, 108 Conn. App. 201, 206, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). We conclude, therefore, that the court incorrectly dismissed the second count of the petition without giving the petitioner an opportunity to provide evidence that he was deprived of the effective assistance of habeas counsel.

The judgment is reversed only as to the claim of ineffective assistance of habeas counsel and the case is remanded for further proceedings in accordance with law. The appeal is dismissed in all other respects.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.l, 772 A.2d 690 (2001).

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       In its memorandum of decision, the habeas court stated: “The court is persuaded that trial counsel did discuss [the defense of extreme emotional disturbance] with the petitioner and did give [the] petitioner his opinion that in the circumstances of [the] petitioner’s case, it was not a viable defense. . . . The court finds that the petitioner has failed to establish, by a fair preponderance of the evidence, any of his claims that trial counsel rendered ineffective assistance in the course of his representation of the petitioner [and has] failed to establish a reasonable likelihood that . . . but for the deficient performance of trial counsel, it was reasonably likely that the outcome would have been more favorable to the petitioner.”

       On or about May 24, 2000, the petitioner filed a pro se petition for a writ of habeas corpus, docket number CV-00-0439113-S. The petitioner’s counsel subsequently filed an amended petition on October 21, 2005.

       The second petition for a writ of habeas corpus also included: count three, ineffective assistance of appellate counsel. On December 14, 2006, the petitioner withdrew this claim.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . .

         The allegations of ineffective assistance of counsel in the first count of the first petition were:
      “12. Defense counsel did not conduct sufficient investigation into [the] [p]etitioner’s case, particularly [the] [p]etitioner’s competency to stand trial and potential affirmative defenses available to [the] [petitioner; specifically intoxication and/or extreme emotional disturbance.
      “13. Defense counsel did not conduct sufficient investigation into witnesses available to support potential defenses.
      “14. Defense counsel did not adequately consult with or advise [the] [petitioner concerning what evidence the state would likely rely upon to support the charge.
      “15. Defense counsel did not adequately advise [the] [p]etitioner concerning the elements of potential affirmative defenses available to [the] [p]eti-tioner.
      “16. Defense counsel failed to seek any determination as to [the] [petitioner's competency to stand trial.
      “17. Defense counsel did not adequately consult with or advise [the] [pjetitioner concerning the status of plea negotiations, the plea agreement described above or the consequences of accepting the plea agreement.
      “18. Defense counsel, by the manner and timing with which he consulted [the] [petitioner regarding the case, exercised undue influence on [the] [petitioner's decision with respect to whether to accept the plea agreement or assert his right to trial, thereby depriving [the] [petitioner of his right to trial.
      “19. Defense counsel failed to protect [the] [petitioner’s right to seek review of the sentence imposed.
      “20. That as a result of defense counsel’s failure to take appropriate action [the] [petitioner’s rights with respect to sentence review are now time barred.
      “21. That [the] [petitioner did not waive or otherwise deliberately bypass his right to sentence review.”
      The repeated allegations of ineffective assistance of counsel in the first count of the second petition were:
      “17. Trial counsel did not conduct sufficient investigation into [the] [petitioner's case, particularly any potential affirmative defenses available to [the] [p]etitioner.
      “18. Trial counsel did not conduct sufficient investigation into witnesses available to support [the] [petitioner's potential defenses.
      “19. Trial counsel did not adequately advise [the] [petitioner concerning the elements of potential affirmative defenses available to [the] [petitioner.
      “20. Trial counsel did not adequately advise [the] [petitioner concerning the evidence the state would likely rely upon to support the charges. . . .
      “23. Trial counsel did not adequately consult with or advise [the] [petitioner concerning the status of any plea negotiations, any potential plea agreements or the consequences of accepting a plea agreement as opposed to the consequences of going to trial before a jury.
      “24. Trial counsel, by the manner and timing with which he consulted [the] [petitioner regarding the case, exercised undue influence on [the] [petitioner’s decision with respect to whether to go to trial or accept any potential plea offers. . . .
      “26. Trial counsel failed to ensure that [the] [petitioner received his right to a [s]entence [rjeview.”

       Those allegations are as follows:
      “21. Trial counsel failed to adequately advise [the] [petitioner of the elements of a [p]robable [c]ause [hjearing.
      “22. Trial counsel failed to adequately advise [the] [petitioner of the consequences of waiving a [pjrobable [c]ause hearing as opposed to going forward with said hearing. . . .
      “25. Trial counsel failed to protect [the] [petitioner’s due process rights under the [s]tate and [fjederal [c]onstitutions by failing to object to a plea and canvass which was neither knowing, voluntary nor intelligent. . . .

        “27. Trial counsel failed to adequately preserve and protect the record for appeal.”

       See Carter v. Commissioner of Correction, 109 Conn. App. 300, 304 n.5, 950 A.2d 619 (2008), in which this court observed: “ ‘Res judicata’ in the context of habeas corpus actions has a more narrow scope than in most contexts. It is clear that the habeas court in this case applied the more narrow standard, as expressed in Practice Book § 23-29 (3).”


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    EUGENIA MARTINO, ADMINISTRATRIX (ESTATE OF FRANCESCA M. BENEDETTO) v. AMANDA SCALZO, EXECUTRIX (ESTATE OF ZACARIAS DACOSTA, JR.), ET AL.
    (AC 29205)
    MeLachlan, Lavine and Foti, Js.
    Argued October 17, 2008
    officially released March 24, 2009

      Raymond C. Lubus, for the appellant (defendant Zacarías DaCosta, Sr.).

      Timothy Brignole, with whom, on the brief, was Juri E. Taalman, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, Zacarías DaCosta, Sr., appeals from the judgment of the Superior Court, sitting as the court of probate, denying his secured claim against the estate of Zacarías DaCosta, Jr. The defendant claims that the trial court improperly raised, sua sponte, and applied the statute of limitations contained in General Statutes § 42a-3-118 (b). We agree and reverse the judgment of the court.

The following facts and procedural history are relevant to the resolution of the defendant’s claims. On May 29, 2005, Zacarias DaCosta, Jr., and Francesca M. Benedetto died from gunshot wounds. On August 8, 2005, the defendant made a claim on the estate of Zacarias DaCosta, Jr., for $118,000 and interest on a mortgage issued to the defendant. On September 6, 2005, the plaintiff, Eugenia Martino in her capacity as administratrix of the estate of Francesca M. Benedetto, made a $5,000,000 unsecured claim against the estate of Zacarias DaCosta, Jr., for the wrongful death of Benedetto. On May 15, 2007, judgment was rendered in Superior Court for the plaintiff in her wrongful death action in the amount of $5,000,000. The plaintiff filed a petition to contest the validity of the defendant’s claim in the Probate Court, alleging the “illegality of the mortgage and promissory note” and relying on only General Statutes §§ 49-4a, 49-4b (c), 49-31b, 42a-3-105 and 42a-3-104. The Probate Court, Hon. Dianne E. Yamin, found that the defendant “could not recall particulars from so many years ago.” She also found, “[b]ased on the testimony at the hearing ... a debt of $51,000.”

The plaintiff appealed from the judgment of the court of probate, alleging in relevant part that: “At the time of . . . DaCosta, Jr.’s death, there was an alleged mortgage in the sum of [$118,000] recorded as a mortgage on the real estate of . . . DaCosta, Jr., located at 7 Bullet Hill Road in Danbury, Connecticut, which mortgage was to his parents, [the defendant] and Antoinette DaCosta. . . . [The defendant] and Antoinette DaCosta have no copy of a promissory note and have no recollection of any terms and conditions of the promissory note, yet made a claim against the [estate of DaCosta, Jr.] for the full amount of [$118,000] plus accruing interest from the date of the mortgage. . . . The [e] state of Francesca M. Benedetto filed a petition to contest the validity of a debt regarding the debt of [the defendant] and Antoinette DaCosta on the mortgage, which petition went to a hearing on March 21, 2006. . . . The Probate Court erred in deciding that a portion of the mortgage should be paid from the assets of the [estate of DaCosta, Jr.].” A trial was held in the Superior Court, Frankel, J., presiding, on June 26, 2007. In accordance with court orders, posttrial briefs were filed by the plaintiff and the defendant on July 30, 2007, and the plaintiff filed a reply brief on August 13,2007. There was no mention of General Statutes § 42a-3-118 in the plaintiffs complaint, during trial or in the posttrial briefs.

On August 28, 2007, the court issued a memorandum of decision and denied the defendant’s claim. The court stated that “[t]he only issue before the court is whether [the defendant’s] claim against the estate is valid. . . . [The defendant] claim[s] that there was a mortgage recorded on the land records of the town of Danbury.” The court concluded that “[t]he lost note in this case [was] rather irrelevant. The mortgage note was ‘on demand.’ In the 11 years that the mortgage and note were in place, the lenders never once made demand on the note. The father never asked his son to repay any monies. ... All credible evidence is that no demands were made for the repayment of the loans. . . . General Statutes § 42a-3-118 (b) provides in relevant part that ‘[i]f no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years.’ . . . The defendant’s claim for the payment on the mortgage given to his son arose on November 30, 1994. The defendant, however, did not make a demand for payment on the note for nearly eleven years. It was not until after the [death of DaCosta, Jr.] on May 29, 2005, at the time the executrix began the administration of the estate that the first demand for payment was made. Therefore, under § 42a-3-118 (b), the defendant’s claim to recoup the amount owed to him on the note is invalid because more than ten years had transpired. . . . The claim of [the defendant] and Antoinette DaCosta is denied.”

The defendant claims that the trial court improperly raised the statute of limitations contained in General Statutes § 42a-3-118 sua sponte after the plaintiff failed to include it in any pleading or argue that it applied. We agree.

The defendant’s claim is entitled to plenary review. “The interpretation of the requirements of the rules of practice presents a question of law, over which our review is plenary.” Cue Associates, LLC v. Cast Iron Associates, LLC, 111 Conn. App. 107, 111, 958 A.2d 772 (2008). In addition, “[t]he construction of a pleading is a question of law, over which we exercise plenary review.” Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003). Practice Book § 10-76 (a) provides: “Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions.” Practice Book § 10-50 provides that “[f]acts which are consistent with [the claimant’s allegations] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . the statute of limitations . . . must be specially pleaded . . . .” “The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.” (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 491, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“An additional consideration informs the analysis when the pleading in question is a special defense raising a statute of limitations. In instances in which a limitations period is contained within the statute that establishes the underlying remedy, such a limitations period is jurisdictional and cannot be waived. . . . However, when the right of action exists independently of the statute in which the limitations period is found, the statutory bar is considered personal and procedural and is deemed waived if not specially pleaded. . . .

“In Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 691, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998), the plaintiffs brought a three count complaint alleging breach of contract, misrepresentation and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant pleaded special defenses, including the statute of limitations. . . . The trial court granted the defendant’s motion for summary judgment, holding that the limitations period for actions sounding in tort found in [General Statutes] § 52-577 barred the plaintiffs’ misrepresentation claim. . . .

“On appeal, the plaintiffs in Avon Meadow Condominium Assn., Inc., argued that the defendant’s failure to plead specifically as a special defense the statute of limitations found in § 52-577 precluded the trial court from applying that section to bar their misrepresentation claim. . . . The defendant contended that, although it explicitly referenced only [General Statutes] § 52-581, the wording of the special defense nevertheless was sufficient to raise the defense to the misrepresentation claim. . . .

“This court reversed the judgment of the trial court, concluding that because the defendant cited General Statutes § 52-581, which pertains to contracts exclusively, it did not plead § 52-577. Moreover, there [was] no reference made to § 52-577, which applies to actions sounding in tort. . . . Because the defendant had not pleaded the statute of limitations section specifically, we concluded that it had waived its right to have that defense considered by the trial court. . . .

“We recently addressed the issue of whether a trial court properly rejected a party’s statute of limitations defense on the basis of the party’s failure to plead the statute providing for that defense specifically. In Ramondetta v. Amenta, 97 Conn. App. 151, 161, 903 A.2d 232 (2006), the plaintiffs attempted to raise the special defense of the statute of limitations to the defendant’s unjust enrichment counterclaim, which was based on an underlying oral contract. The plaintiffs pleaded that the defendant’s claims are barred by the applicable [s]tatute of [1]imitations. . . . The plaintiffs’ only subsequent reference to the special defense came in their posttrial memorandum of law, which stated: Clearly, the statute of limitations for an oral agreement is three (3) years, with a limitation for a written agreement being six (6) years. . . .

“We held that the trial court properly considered the plaintiffs’ statute of limitations defense waived. At no point from the filing of the defendant’s counterclaim to the rendering of judgment by the court did the plaintiffs identify the applicable statute on which they relied. That infirmity is fatal to the plaintiffs’ claim. The underlying purpose of affirmative pleading is to apprise the court and the opposing party of the issue to be tried. . . . Consistent with that purpose, a party raising a statute of limitations defense must identify the statute that allegedly is applicable. In pleading such a defense, the bare assertion that the applicable statute of limitations bars a particular action is inadequate to apprise the court or the opposing party sufficiently of the nature of the defense. . . . We find the rationale of such a holding persuasive because if a particular statute of limitations is not pleaded, the plaintiff is not on notice to plead and prove matters in avoidance of the particular statute of limitations not pleaded. See Practice Book § 10-57. Where a particular statute of limitations . . . is not jurisdictional and has not been pleaded, [the opposing party] is entitled to conclude that it was waived.” (Citations omitted; emphasis added; internal quotation marks omitted.) Cue Associates, LLC v. Cast Iron Associates, LLC, supra, 111 Conn. App. 112-15.

The defendant claims that the trial court improperly applied § 42a-3-118 (b), sua sponte, to its determination of the defendant’s claim on the estate of DaCosta, Jr. The defendant argues that the plaintiffs failure, in the pleadings or otherwise, during her appeal from the Probate Court, to raise the statute of limitations contained in § 42a-3-118 (b) constituted a waiver of the special defense and denied him the opportunity to address the applicability of that statute of limitations. The plaintiff argues that she “raised and argued the issues relating to the statute of limitations contained in ... § 42a-3-118 (b)” by discussing the applicability of General Statutes § 49-13 in her posttrial reply brief. Alternatively, the plaintiff argues that the statute of limitations properly was raised sua sponte because the defendant’s claim was declared “invalid” by the trial court, and, therefore, “the trial [c]ourt lacked subject matter jurisdiction to consider it.” We agree with the defendant.

Despite the plaintiffs argument, the § 42a-3-118 statute of limitations is not jurisdictional. The right to enforce a mortgage existed at common law, and even if the defendant’s claim were based on the enforcement of a note, such a right also existed at common law. Thus, § 42a-3-118 contains a statute of limitations that is procedural, not substantive, and does not implicate the subject matter jurisdiction of the court. As such, it may be waived. See Cue Associates, LLC v. Cast Iron Associates, LLC, supra, 111 Conn. App. 112.

The plaintiff was, therefore, responsible for pleading the statute of limitations so as to “apprise the court and opposing counsel of the issues to be tried.” McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn. App. 491. The plaintiff neither pleaded the statute of limitations nor apprised the defendant that it was at issue. Because of the court’s sua sponte application of the statute of limitations, the defendant was not afforded the opportunity to plead and present evidence in avoidance of the statute of limitations. See, e.g., Cadle Co. v. Errato, 71 Conn. App. 447, 460, 802 A.2d 887 (statute of limitations defense contained in § 42a-3-118 can be lost by unequivocal acknowledgment of debt which tolls statute of limitations), cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

The rationale of Cue Associates, LLC, controls our analysis of the plaintiffs assertion that “although § 42a-3-118 (b) was not specifically cited in the pleadings or the briefs, it was referenced by description in § 49-13 (a) [1] (c) and argued in the plaintiffs reply brief, wherein the plaintiff claimed that the mortgage was invalid pursuant to § 49-13 [c] . . . .” We conclude that the plaintiffs inclusion of § 49-13 in her posttrial reply brief, filed on the last day on which reply briefs could be filed, cannot possibly be said to apprise the defendant of the issue to be tried. Accordingly, we conclude that the plaintiff waived the application of § 42a-3-118 (b) to the defendant’s claim and the court’s application of it was improper.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The named defendant, Amanda Scalzo, executrix of the estate of Zacarias DaCosta, Jr., filed an appeal from the trial court judgment, and the defendant Zacarias DaCosta, Sr., the father of Zacarias DaCosta, Jr., filed a cross appeal. The named defendant subsequently withdrew her appeal. Antoinette DaCosta, the mother of Zacarias DaCosta, Jr., was also a defendant at trial, but has not appealed. We therefore refer in this opinion to Zacarias DaCosta, Sr., as the defendant.

       The defendant claimed on appeal that General Statutes § 42a-3-118 (b) is not applicable to its claim on the estate of DaCosta, Jr. We ordered the parties to file supplemental briefs addressing: “Whether the parties pleaded and argued . . . the issue of the statute of limitations contained in General Statutes § 42a-3-118 (b). If not, whether it was proper for the trial court, sua sponte, to decide the case on the basis of the statute of limitations.” The parties filed their supplemental briefs on January 9, 2009. In light of the parties’ arguments in the supplemental briefs, we find the issue of waiver dispositive and need not resolve the defendant’s claim regarding the applicability of the statute of limitations.
      The plaintiff claims that (1) General Statutes § 49-13 may be asserted in a probate proceeding as an affirmative defense to the debt claimed by the defendant, even though it is not a foreclosure action, (2) the defendant’s mortgage fails to meet the requirements and criteria for an open-ended mortgage, (3) the statute of frauds applies to a promissory note and no action may be brought on such an alleged note when the original note cannot be found and no copy exists, (4) parol evidence may not be admitted to provide the terms and conditions of a promissory note when neither the original note, nor a copy therof, can be found, (5) the transaction involving an alleged note and mortgage had no validity, and courts will not enforce a transaction where a layperson engages in what amounts to an unauthorized practice of law in preparing the alleged note and mortgage and in advising the parties of their respective rights and duties and (6) the dead man’s statute, General Statutes § 52-172, should have precluded the statements of DaCosta, Jr., from being admitted. We do not resolve the plaintiffs claims relying on factual determinations because the record is insufficient for our review. We decline to review the plaintiffs purely legal claims because any discussion of those issues would result in an advisory opinion. “[Our Supreme Court has] consistently held that [our courts should] not render advisory opinions. . . . [W]here the question presented is purely academic, we must refuse to entertain the appeal.” (Internal quotation marks omitted.) Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 419, 880 A.2d 882 (2005)
      On remand, we expect that the court will address the validity of the claim.

       The defendant also made several claims, for which there are no security, that are not at issue in this case.

       The plaintiff cited “General Statutes § 49-31(b)” in her petition, but we conclude that she intended to refer to § 49-31b because of her allegation that the mortgage did not state the maximum term of the promissory note. In addition, § 49-31 (b) does not exist and § 49-31 refers to actions against the state.

       The $51,000 debt consisted of the defendant’s loan to DaCosta, Jr., of $35,000 cash and the defendant’s purchase of a $16,000 truck for DaCosta, Jr.

       The defendant’s claim in the Probate Court and on appeal in the Superior Court was asserted as a mortgage.

       Although the plaintiff repeatedly refers in her supplemental brief to General Statutes “§ 49-13 (a) (C)” and occasionally to “§ 49-13 (c),” we assume (hat (he plaintiff intended to refer to § 49-13 (a) (1) (C) and (c), respectively.
      General Statutes § 49-13 provides in relevant part: “(a) When the record title to real property is encumbered (1) by any undischarged mortgage, and ...(C) the mortgage does not disclose the time when the note or indebtedness is payable or disclose the time for full performance of the conditions of the mortgage and ten years have passed without any payment on account of the promissory note or other written evidence of indebtedness . . . (he person owning the property, or the equity in the property, may bring a petition to the superior court for the judicial district in which the property is situated, setting forth the facts and claiming a judgment as provided in this section. ...(c) Such notice having been given according to the order and duly proven, the court may proceed to a hearing of the cause at such time as it deems proper, and, if no evidence is offered of any payment on account of the debt secured by the mortgage within a period set out in subsection (a) of this section, or of any other act within such a period as provided in said subsection (a) in recognition of its existence as a valid mortgage . . . the court may render a judgment reciting the facts and its findings in relation thereto and declaring the mortgage . . . invalid as a lien against the real estate . . . .” (Emphasis added.)
      We note that the plaintiff has made no argument that she satisfied the procedural directives of § 49-13. See Gordon v. Tufano, 188 Conn. 477, 483-84, 450 A.2d 852 (1982). It is well settled that § 49-13 allows a court to remove a mortgage which is undisputed and does not empower a court to determine the validity of a disputed mortgage; accordingly, it is not clear that the court would have had jurisdiction in the present case to discharge the mortgage under § 49-13. See id., 483-85; see also Ratick v. Scalo, 165 Conn. 675, 679-80, 345 A.2d 26 (1974) (motion to cancel lis pendens not appropriate procedure for declaring lis pendens invalid under § 49-13).

       The plaintiff also states in support of her argument that she introduced testimony “that the mortgage in question in the present case [was] unpaid by [DaCosta, Jr.] . . . for a period of more than ten . . . years.” The defendant, however, had no reason to believe that this testimony was not directed at the plaintiffs allegation that the mortgage was fraudulent.

       We repeat, in light of the plaintiffs ambiguously worded claim, that the plaintiffs posttrial reply brief discussed General Statutes § 49-13, mot General Statutes § 42a-3-118 (b). Thus, the plaintiff appears to assert only that she argued § 49-13 in her posttrial brief.

       We do not today endorse the raising of a statute of limitations at any time after the pleadings are closed, but we note that introduction of the issue at such a late date could never be said to fairly apprise the opposing party.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. TODD LAMAR JONES
    (AC 28038)
    Flynn, C. J., and DiPentima and Peters, Js.

      Argued October 29, 2008
    officially released March 24, 2009

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Todd Lamar Jones, appeals from the judgment of conviction, rendered after a trial to the court, of transporting cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), as set forth in count one of the long form information, two counts of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), as set forth in counts two and three of the long form information, and interfering with an officer in violation of General Statutes (Rev. to 2005) § 53a-167a (a), as set forth in count four of the information. On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence after concluding that (1) the police had not subjected him to a seizure or, in the alternative, that the police had a reasonable and articulable suspicion justifying the seizure, and (2) he did not have standing to challenge the legality of the evidence seized from his hotel room. We affirm the judgment of the trial court.

The court reasonably could have found the following facts, which are relevant to our resolution of the issues on appeal. On August 22, 2005, Detective Fred Wil-coxson of the Stratford police department parked his vehicle at St. Michael’s Cemetery on Stratford Avenue in Stratford to monitor the activities at the Stratford Motor Inn (motel), which is located across the street from the cemetery. The defendant, driving a green Chevrolet Lumina, drove into the motel parking lot and exited his vehicle, leaving open the driver’s side door of the vehicle. His passenger, Roy Jones, remained in the vehicle. The defendant walked quickly and entered room four. Just a few minutes later, he returned to his vehicle and drove out of the parking lot. Wilcoxson became suspicious and followed the defendant’s vehicle.

Shortly thereafter, the defendant stopped his vehicle at a traffic light, and Wilcoxson drove alongside him. Wilcoxson then observed the defendant drinking from a bottle of beer. Wilcoxson contacted Stratford Officer Ulysses Munoz via the walkie-talkie component of his cellular telephone, asking him to intercept the defendant because the defendant was drinking beer while operating a motor vehicle. Wilcoxson and Munoz spoke several times while Munoz was en route to the defendant’s location. Before Munoz had the opportunity to stop the defendant’s vehicle, the defendant parked on Yale Street several feet from the curbing. Munoz, without activating the siren or emergency lights, parked approximately one car length behind the defendant’s vehicle and approached it on foot. As Munoz approached the driver’s side door, he saw the defendant hand a Heineken bottle to his passenger. Munoz asked the defendant for his license, insurance card and vehicle registration. The defendant stated that he did not have a valid driver’s license, but he gave Munoz the other documents that he had requested. Munoz then walked to the passenger side of the vehicle and requested that the passenger provide identification, which he did. Munoz saw two Heineken bottles behind the legs of the passenger, and he asked the passenger to exit the vehicle. As the passenger exited, Munoz saw Wilcoxson approaching the vehicle. The defendant then began moaning, complaining of cramps, while bending over toward the passenger’s seat and fumbling around in his waistband. Wilcoxson asked the defendant to put his hands up, but the defendant did not comply. Wilcoxson then told the defendant to exit the vehicle; the defendant complied but continued to hunch over and fumble around his waistband. When the defendant stood straight up, a bag of crack cocaine fell from his shorts and landed on the ground. The defendant tried to stomp on the drugs. After a brief scuffle, Wilcoxson and Munoz handcuffed the defendant and placed him under arrest. When the defendant stood up after being handcuffed, several more bags of crack cocaine fell from his shorts.

Wilcoxson and several other officers went back to the motel and questioned employees about the occupants of room four. The employees showed Wilcoxson a picture of the defendant, and they confirmed that the motel key card seized from the defendant was for room four. Wilcoxson and other officers then went to room four and knocked on the door. A young boy answered the door, and Wilcoxson saw a woman, later identified as the defendant’s girlfriend, SharondaTuck, and two bags of marijuana lying on a nightstand in plain view. Tuck admitted that the marijuana belonged to her, and she was arrested. Wilcoxson and the other officers searched the motel room and found other drugs and drug paraphernalia and a pistol.

On the basis of these facts, the defendant was convicted of transporting cocaine with intent to sell, two counts of possession of cocaine with intent to sell and interfering with an officer. This appeal followed.

I

On appeal, the defendant first claims that the court improperly denied his motion to suppress after concluding that the police had not subjected him to a seizure or concluding, in the alternative, that the police had a reasonable and articulable suspicion justifying a seizure. The defendant claims that the seizure violated article first, §§ 7 and 9, of the constitution of Connecticut. Although we conclude that the court improperly found that the defendant was not subjected to a seizure at the time Munoz asked him for his driver’s license, insurance card and vehicle registration, we agree with the court’s alternative finding that the investigatory seizure was justified because the police had a reasonable and articulable suspicion of illegal activity.

Our rules of practice provide: “Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.” Practice Book § 41-12; see also General Statutes § 54-33f. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance. ... In [a] case, in which we are required to determine whether the defendant was seized by the police, we are presented with a mixed question of law and fact that requires our independent review.” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843-44, 955 A.2d 43 (2008). “When considering the validity of a . . . stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations omitted; internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 503, 838 A.2d 981 (2004).

A

The defendant claims that the court improperly concluded that he was not subjected to a seizure. We agree.

Our Supreme Court recently articulated “the legal test used to determine when a person is seized within the meaning of article first, §§ 7 and 9, of our state constitution. ... [A] person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained. . . . The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . The inquiry is objective, focusing on a reasonable person’s probable reaction to the officer’s conduct. See, e.g., [id., 503] ([i]n determining the . . . question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard . . .).” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, supra, 288 Conn. 844-46.

We begin by determining whether there was a sufficient show of authority by the police to constitute a seizure. “A proper analysis of this question is necessarily fact intensive, requiring a careful examination of the entirety of the circumstances in order to determine whether the police engaged in a coercive display of authority such that a reasonable person in the defendant’s position would not have felt free to leave. . . . In United States v. Mendenhall, [446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)], the Supreme Court listed a number of factors that, ‘in view of all of the circumstances surrounding the incident,’ might indicate a sufficient show of authority to create a seizure. ‘Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ Id.; see also Michigan v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (‘[T]he police conduct involved . . . would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [the] respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded [the] respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block [the] respondent’s course or otherwise control the direction or speed of his movement.’).” State v. Burroughs, supra, 288 Conn. 846-47.

In Burroughs, our Supreme Court determined that the defendant in that case was not subjected to a seizure when two officers approached his vehicle, one on each side of the vehicle, because there was no showing of authority or use of physical force. Id., 840-52. The court did explain, however, that its conclusion would be different if the police had parked behind the defendant’s vehicle and activated the police siren, thereby demonstrating their authority: “[A] reasonable person in the defendant’s position would not have felt free to leave if . . . the officers . . . had demonstrated their authority by pulling up behind the defendant’s vehicle and activating their patrol car’s overhead flashing lights.” Id., 851.

We also find informative the recent holding in State v. Silva, 285 Conn. 447, 939 A.2d 581 (2008). In Silva, our Supreme Court determined that a refusal to produce motor vehicle documents when requested by an officer, in accordance with General Statutes § 14-217, may constitute a violation of § 53a-167a, interfering with an officer. Id., 456-57; see also State v. Aloi, 280 Conn 824, 832-33,911 A.2d 1086 (2007) (refusal to provide identification to police when asked may interfere with officer’s ability to perform duty and thus may violate § 53a-167a).

In the present case, we conclude that once Munoz approached the defendant’s vehicle and requested that the defendant produce his documents, thereby exercising police authority, the defendant was not free to leave and was under seizure. Pursuant to § 14-217, the defendant was required to produce those documents under penalty of law. A refusal to produce them may have subjected him to a violation of § 14-217, as well as a misdemeanor charge of interfering with an officer pursuant to § 53a-167a. Accordingly, we conclude that the defendant was under seizure once Munoz requested that he produce his documents; no reasonable person in the defendant’s position would have felt free to leave. See State v. Burroughs, supra, 288 Conn. 846.

B

Having determined that the defendant was subjected to a seizure once Munoz requested that he produce his documents, we next must determine whether Munoz possessed a reasonable and articulable suspicion at the time of the seizure. See State v. Santos, supra, 267 Conn. 503. The defendant argues that the “court improperly concluded that Munoz had a reasonable and articulable suspicion based on: (1) the transmission from Wil-coxson regarding [the defendant’s] drinking while driving in [the] defendant’s car; (2) Munoz’ observation, when approaching the [defendant’s vehicle], of [the] defendant handing the passenger a Heineken bottle and (3) parking illegally in violation of a Stratford town ordinance.” He also argues that the stop was pretextual. We are not persuaded.

“Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a police officer has the authority, under the fourth amendment to the United States constitution, to stop the operator of a car if the officer has a reasonable and articulable suspicion that the operator has engaged in illegal conduct. In furtherance of this constitutional principle, our Supreme Court has held that a police officer has the right to conduct a Terry stop even if the reason for the stop is only that the officer observed an infraction under our traffic laws. State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988).” State v. Cyrus, 111 Conn. App. 482, 483, 959 A.2d 1054 (2008).

“Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances. . . . The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review. . . .

“An appeal challenging the factual basis of a court’s decision that a reasonable and articulable suspicion exists requires that we determine, in light of the record taken as a whole, (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the [court’s] conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) State v. Thomas, 98 Conn. App. 542, 548-49, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007).

In the present case, the trial court concluded that the seizure of the defendant was not pretextual and that Munoz had a reasonable and articulable suspicion based on the court’s findings that (1) Wilcoxson reported to Munoz that he saw the defendant drinking while operating his motor vehicle, which is a class C misdemeanor punishable by a maximum of three months imprisonment pursuant to General Statutes §§ 53a-36 and 53a-213, (2) as Munoz approached the defendant’s vehicle, he personally observed the defendant handing his passenger a Heineken beer bottle and (3) the defendant parked his vehicle more than one foot from the curb in violation of a Stratford town ordinance.

The defendant contends that the court initially found some inconsistencies and credibility issues in the testimony of Munoz and Wilcoxson, especially related to the timing of Wilcoxson’s observation of the defendant drinking and the fact that the officers did not secure the beer bottles for evidence. He then contends that the court’s stated findings in its articulation on the issue of reasonable and articulable suspicion were at odds with its initial findings, which, he claims, demonstrates that there is a fundamental flaw in the evidence. The defendant further argues that the court’s finding that he was parked illegally was clearly erroneous because he was parked for only two to three minutes while in the vehicle, and the parking ordinance at issue “presumes that an owner or operator will not be in the car when notice of the violation issued.” (Emphasis in original.) He asks that we conclude that the court improperly found that he parked illegally under these facts or, in the alternative, that such illegal parking does not provide a constitutionally sufficient justification for a seizure. After thoroughly reviewing the record, we conclude that the court’s findings were not clearly erroneous, that the record supports the court’s conclusion that the seizure of the defendant was not pretextual and that Munoz had a reasonable and articulable suspicion justifying a seizure of the defendant.

As our Supreme Court has explained: “A police officer has the right to stop a motor vehicle operating on a Connecticut highway even if the reason for the stop is only an infraction under our traffic laws.” State v. Dukes, supra, 209 Conn. 122. Parking more than one foot from the curbing on a public road is an infraction under General Statutes § 14-251 and Stratford Town Ordinances § 203-8. Here, Munoz testified that he observed that the defendant was parked “several feet” from the curbing, which testimony was credited by the trial court in its findings. Because this finding is supported by the record, we conclude that the defendant has failed to prove that it was clearly erroneous.

Next, we examine the defendant’s contention that § 203-8 of the Stratford Town Ordinances does not apply if the driver remains in the vehicle while parked several feet from the curbing. The defendant attempts to distinguish State v. Gordon, 84 Conn. App. 519, 524-25, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004), from the facts of this case. Similar to counsel in the present case, appellate counsel in Gordon had argued in his appellate brief that parking in a no parking zone did not give the police a reasonable and articulable suspicion warranting further investigation but, rather, that it simply authorized the police to leave a ticket on the vehicle’s windshield. We conclude that the facts of this case are not distinguishable, in any meaningful way, from the relevant facts in Gordon.

In Gordon, the defendant parked his vehicle on the side of the road in an area marked with several no parking signs and remained parked there for approximately three minutes. Id., 521. A police officer was concerned because of the hazards posed by parking in such an area, and he approached the defendant’s vehicle to see if assistance was needed. Id., 521-22. After speaking with the driver of the vehicle, the police officer determined that the defendant was intoxicated and arrested him. Id., 522. The court found that “the defendant was parked illegally in violation of General Statutes § 14-251 when the officers approached his vehicle and concluded that that violation provided the officers with a reasonable and articulable suspicion that a crime was being committed.” Id., 523. In upholding the trial court’s determination, we explained that the police officer “had a reasonable and articulable suspicion to approach the defendant’s vehicle because it was parked in a no parking zone.” (Emphasis added.) Id., 525.

In the present case, the defendant was parked illegally, “several feet” from the curbing on a public roadway. Munoz testified that he witnessed this and approached the vehicle. The defendant admits that he, like the defendant in Gordon, had been parked for two to three minutes. Accordingly, we do not find the facts of Gordon substantially distinguishable from the facts in the present case. Applying an objective standard to these circumstances, as we must, we conclude that the court properly found that the defendant parked his vehicle in violation of § 203-8 of the Stratford Town Ordinances and General Statutes § 14-251, and we further conclude, therefore, as we did in Gordon, that the police officer had a reasonable and articulable suspicion to approach the defendant’s vehicle because it was parked illegally. On this basis alone, the investigatory seizure was justified. Accordingly, we need not review the additional basis for the court’s conclusion, having concluded that there was a reasonable and articulable suspicion justifying the investigatory seizure because the defendant was parked illegally. We will examine, however, the defendant’s contention that the seizure was pretextual.

The defendant also argues that, even if there was a reasonable and articulable suspicion on which Munoz could have effected a valid seizure, Wilcoxson followed the defendant and requested that Munoz stop him for pretextual reasons, raising an issue concerning what the defendant terms “preconceived culpability” or the “insidious specter of profiling” because the defendant “is a young black male.” In effect, the defendant asks that we hold that it is the subjective intent of the officers that should govern our determination of whether a motor vehicle stop is pretextual. As the Supreme Court held in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), an objective standard is employed to test whether the action of law enforcement violates the fourth amendment to the United States constitution. Because Munoz had a reasonable and arti-culable suspicion, which objectively was based on investigating the defendant’s illegally parked vehicle, Munoz’ investigatory seizure was justified under the fourth amendment. Although the defendant argues that this allegedly pretextual stop also violated the state constitution, he provides no analysis under our state constitution. “We . . . repeatedly [have] apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 518 n.l, 853 A.2d 105 (2004).

n

The defendant next claims that the court improperly denied his motion to suppress certain evidence after concluding that he did not have standing to challenge “the legality of items seized without a warrant in room four of the motel.” The defendant argues that the court’s ruling was improper because additional evidence “adduced at trial confirmed that [he] had standing,” and, therefore, the court improperly denied the defendant’s motion to reconsider the ruling on his motion to suppress and improperly denied his motion to suppress. We do not agree.

We again note our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling]

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications. ... In order to meet this rule of standing ... a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact specific inquiry into all the relevant circumstances. . . . Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing . . . .” (Citation omitted; internal quotation marks omitted.) State v. Kalphat, 285 Conn. 367, 374-75, 939 A.2d 1165 (2008). “[T]he trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 93, 675 A.2d 866 (1996).

“It is well established that the owner or tenant of a dwelling has standing to contest the legality of a search of that premises. . . . However, [t]he capacity to claim the protection of the fourth amendment does not depend upon a proprietary interest, permanency of residence, or payment of rent but upon whether the person who claims fourth amendment protection has a reasonable expectation of privacy in the invaded area. . . . Further, the fact that a person does not have the exclusive use of an area does not bar his having a reasonable expectation of privacy that furnishes standing to object to a government seizure. . . . Accordingly, a person who makes a telephone call from a public telephone booth may challenge the state’s warrantless interception of the call . . . and an overnight guest has the right to contest a warrantless entry into his or her host’s home. . . . Thus, a person may have a sufficient interest in a place other than his home to enable him to be free in that place from unreasonable searches and seizures ... so long as the place is one in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.” (Citations omitted; internal quotation marks omitted.) Id., 93-94.

The following facts, discerned from the record, are necessary for our resolution of the defendant’s claim. During the suppression hearing, the defendant called Wilcoxson to the witness stand for the purpose of “showing standing.” Wilcoxson testified that he obtained a motel key card from the defendant during his arrest and that, after the defendant was arrested, Wilcoxson went to the motel office. He also stated that the key card he obtained from the defendant was for room number four. When asked if he saw “any photographs ... of a resident of the [motel]” upon inquiry at the motel office, Wilcoxson responded, “I saw a picture of [the defendant].” He further stated that the photograph that he saw of the defendant related to room number four. After going to room number four, Wil-coxson testified, he knocked on the door, and a female answered; there also was a young child in the room. He then testified that it was the child who actually opened the door while the woman sat inside the room.

In its April 4, 2006 oral ruling regarding the issue of standing, the court, Hauser, J., stated in relevant part: “[T]he court further concludes that the defendant has not established standing in the search of unit number four nor in the items seized therein. The defendant points to the fact that he possessed ... a key card to that room . . . [and] to a picture of the defendant which was in the possession of the office of the [motel], and that picture related to unit number four. He finally points out that the inventory form filed by the police listed unit four as the defendant’s home address. It should be noted that the tow form [for the defendant’s vehicle] also made out by the police indicated Bridgeport as [the defendant’s] address, as did the certified copy of the motor vehicle registration offered by the defendant. His [identification] card listed Waterbury as his address.

“There is no evidence that [the defendant] was the one who actually rented room number four. There is no evidence that he paid for the room. There is no evidence that he ever stayed at the room. There is no evidence asserting that any personal property in the room belonged to him. The evidence indicates that his only personal contact with unit four came when he parked near that unit, went very quickly inside, leaving the car door opened, carrying nothing, and returned to his car in a very short time, again carrying nothing. There’s no evidence that he used a key to open the door. . . . There was no evidence of the occupant sharing the room with him. There was no testimony from anyone concerning his asserted status.” On the basis of these findings, the court concluded that the defendant had not demonstrated that he had standing to challenge the legality of the search of room number four of the motel or the items seized therein.

The defendant claims that he had a reasonable expectation of privacy in room four of the motel and, therefore, that the court improperly concluded that he lacked standing to challenge the search thereof. The defendant does not argue that the evidence he submitted at the suppression hearing alone was sufficient to establish that he had standing to contest the legality of the search of room number four. Rather, he argues that the court’s denial of his motion to reconsider this ruling after further evidence was produced at trial was improper because that additional evidence proved that the defendant had standing. The defendant claims that, taking all of the evidence into consideration, the court improperly denied his motion to suppress the search of room number four and the evidence found therein. We are not persuaded.

As the trial court, Hauser, J., observed in its April 4, 2006 oral ruling regarding the issue of standing, although the defendant had a key card for room number four and that was the address listed for the defendant on the police inventory form, the tow form and his motor vehicle registration listed Bridgeport as his address, and his identification card listed Waterbury as his address. The court also found that there was no evidence that the defendant was the person who rented room number four, paid for room number four or had any personal property in room number four.

The defendant argues, however, that further evidence was presented at trial that established that he was, in fact, the person who had rented room number four and that it was “his room.” The defendant contends that this additional evidence, taken together with the previous evidence, was sufficient to establish his standing to contest the search of room number four and the evidence seized therefrom and that the court abused its discretion when it denied his motion to reconsider the issue of standing and his motion to suppress. The state urges that we not consider the evidence offered at trial, before a different judge, in assessing the propriety of the initial ruling that the defendant did not possess standing to challenge the search of room number four. It argues that the defendant failed in his burden of proof at the suppression hearing and that any additional evidence offered at the time of trial should not be used to evaluate the earlier ruling. Accordingly, it contends that the only ruling we should consider is the ruling on the motion for reconsideration. Assuming, without deciding, that the evidence offered at trial properly may be considered when determining the propriety of the denial of a motion to suppress when the court has been asked to reconsider its ruling following the presentation of the additional evidence at trial; see generally State v. Lewis, 60 Conn. App. 219, 245 n.28, 759 A.2d 518 (recognizing that to determine whether a defendant’s constitutional rights have been infringed, appellate court must review record in entirety and not just evidence before trial court at time of ruling, but finding it significant that defendant never asked trial court to reconsider findings made at suppression hearing in light of trial testimony), cert. denied, 255 Conn. 906, 762 A.2d 911 (2000); we conclude, on the basis of the entire record before us, that the defendant has failed to prove that the court, Thim, J., improperly ruled that there remained insufficient evidence that the defendant had a reasonable expectation of privacy in room number four.

The defendant directs us to the trial testimony of Tuck, his then girlfriend, which he claims “standing alone proves that [he had] a legitimate expectation of privacy in room four of the motel.” The defendant contends that Tuck testified that she and her son “had been living with the defendant for approximately thirty days in room four” and that “it was his room.” The state responds by arguing that “the trial court implicitly rejected Tuck’s testimony when it stated, after listening to her testify, that it did not hear anything that would cause it to change Judge Hauser’s decision.” The state also argues that because “the trial court was free to reject Tuck’s testimony, it did not abuse its discretion in denying the defendant’s motion for reconsideration.”

During trial, defense counsel argued that, in addition to being the defendant’s then girlfriend, Tuck also was his codefendant, charged with possession of the same narcotics for which the defendant was charged, those found in room number four. Defense counsel explained that Tuck was “being offered leniency for her testimony” against the defendant. After being called to the witness stand, Tuck testified at the defendant’s trial in the presence of her attorney. She stated that on the evening of August 22, 2005, she and her son were in room number four of the motel and that she awoke to find several police officers in her room. The officers asked her for permission to search the room, and she granted them permission. She stated that the police first found two bags of marijuana on the top of the nightstand and that the marijuana belonged to her. After searching further, the police found a gun, crack cocaine and a scale, and, she stated, those items did not belong to her.

Tuck further testified that she and her son had been in room number four for approximately thirty days, and she acknowledged that “the defendant [had] come to that room on other days before the day of August 22, 2005.” She also stated that she had never seen the defendant do anything with the items that the police found during their search. She testified that she did have an agreement with the state that she would “testify to the stuff that does not belong to [her and own] up to what belongs to [her]. That’s the marijuana.” She further stated that a charge of risk of injury to a child, a weapons charge and a possession of crack cocaine charge “would be throw[n] out” and that her testimony at the defendant’s trial would not be used against her.

When cross-examined by defense counsel, Tuck testified that she lived in room number four but that she had no knowledge of the gun hidden between the box spring and the mattress or the crack cocaine hidden inside the nightstand. She had never seen those items nor had she seen the defendant with those items. When asked by defense counsel: “So, you didn’t know it was there. You don’t know if he knew it was there, right?” She responded: “It was his room. If it was — it’s not mine, so who else would it have been?” She then stated that she was living and sleeping there and that the defendant was staying with her in that room.

Following Tuck’s testimony, the defendant filed a motion to reconsider his motion to suppress and asked the court to be heard on the motion. During oral argument on the motion, defense counsel stated that he “obviously [did not] want to waive any claim that [he might] have to asking Judge Hauser to reconsider his ruling on the motion to suppress.” Nevertheless, he argued the merits of the motion before Judge Thim and did not request that it be heard by Judge Hauser. The defendant argued that Tuck’s testimony that the room belonged to him provided the additional evidence necessary to prove that he had standing to challenge the search of room number four. Following argument, the court stated: “Judge Hauser’s ruling is the rule of the case, and I have seen — I have heard nothing before me such that I should change his decision. So the motion for reconsideration is denied.”

The defendant contends that the mere words of Tuck stating that “it was his room” sufficed to establish the defendant’s standing. We are not persuaded. Tuck admitted that she was given leniency in exchange for her testimony against the defendant. She also testified that she was motivated to testify, at least in part, by the thought of her three children. Although, during cross-examination, she stated that it was the defendant’s room, she also stated that she and her son lived and slept in that room and that she had no knowledge of the gun or the crack cocaine that was found in the room. There is nothing in the record to indicate what portion, if any, of Tuck’s testimony the court found credible. It is the province of the trial court to accept or reject, in whole or in part, the testimony of a witness. See State v. Goodspeed, 107 Conn. App. 717, 728-29, 946 A.2d 312 (“In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the [finder of fact], and, therefore, we must afford those determinations great deference. . . . The [finder of fact] can . . . decide what — all, none or some — of a witness’ testimony to accept or reject.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 287 Conn. 920, 951 A.2d 570 (2008). Accordingly, we are unable to conclude that the court improperly concluded that Tuck’s testimony did not provide sufficient additional evidence to establish the defendant’s standing to challenge the search of room number four.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted on a charge of interfering with a search in violation of General Statutes § 54-33d as set forth in count five of the long form information. The court also found that the state had failed to prove that the defendant was a persistent drug offender pursuant to General Statutes §§ 21a-277 and 21a-278 as charged in apart B information. Following the defendant’s conviction, the court merged counts one and two — illegal transport of cocaine and one count of possession of cocaine with intent to sell — for purposes of sentencing. The defendant then was sentenced to a total effective term of sixteen years incarceration, suspended after ten years, with five years of probation.

       See footnote 1.

       Article first, § 7, of the constitution of Connecticut provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       General Statutes § 14-217 provides in relevant part: “No person who is operating or in charge of any motor vehicle, when requested by any officer in uniform . . . may refuse to give his name and address or the name and address of the owner of the motor vehicle or give a false name or address, or refuse, on demand of such officer, agent or other person, to produce his motor vehicle registration certificate, operator’s license and any automobile insurance identification card .... Violation of any provision of this section shall be an infraction.”
      General Statutes (Rev. to 2005) § 53a-167a provides: “(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer or firefighter in the performance of such peace officer’s or firefighter’s duties.
      “(b) Interfering with an officer is a class A misdemeanor.”

       We note that “[t]he determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 227, 673 A.2d 1098 (1996).

       General Statutes § 14-251 provides in relevant part: “No vehicle shall be permitted to remain stationary . . . upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb. . . . Nothing in this section shall be construed to . . . prohibit a vehicle from stopping ... on any highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances. Violation of any provision of this section shall be an infraction.”

       Stratford Town Ordinance § 203-8 provides in relevant part: “A. When there is a violation of this Article by a person, a member of the Police Department shall attach to the vehicle in violation a notice to the owner or operator thereof that such vehicle has been parked in violation of the provisions of this Article and directing such owner or operator to report to the officer on duty in the Police Department in regard to such violation. Each such owner or operator shall, within 10 days of the time when such notice was attached to his vehicle, pay to such desk officer as a penalty for and in full satisfaction of such violation the following amounts:
      “(1) Group I. Penalty: $25.
      “(a) No-parking zone . . .
      “(h) Too far from curb . . . .”

       The defendant does not contest that he was parked more than one foot away from the curbing, nor does he directly challenge Munoz’ testimony that he was parked “several feet” from the curbing.

       In State v. Dalzell, 282 Conn. 709, 716 n.5, 924 A.2d 809 (2007), our Supreme Court explained that it has not “defined the term ‘pretextual’ stop, and [it did] not do so in [the Dalzell] case . . . .” The court noted, however, that the defendant in that case had claimed that a “pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop. The classic example . . . occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal drug activity.” (Internal quotation marks omitted.) Id. In the present case, the defendant does not set forth a definition of “pretextual,” but he implicitly uses a definition similar to that in Dalzell.

       Although the state urges us to employ the abuse of discretion standard, applicable to our review of a court’s ruling on a motion for reconsideration, we conclude that such a standard is inapplicable in this case because the court, in effect, granted the motion to reconsider but denied the requested relief.