text:
    STATE OF CONNECTICUT v. RAFAEL ABREU
    (AC 28450)
    Flynn, C. J., and Harper and Peters, Js.

      Argued November 15, 2007
    officially released March 11, 2008

      James B. Streeto, assistant public defender, for the appellant (defendant).

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

FLYNN, C. J.

The defendant, Rafael Abreu, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). On appeal, the defendant claims that the trial court (1) violated his right to present a defense by excluding evidence of (a) the victim’s alleged drug activity and (b) the defendant’s knowledge of the prior arrests of the victim, the victim’s alleged status as a fugitive, the victim’s use of an alias and the victim’s blood alcohol content on the night of the shooting and (2) improperly denied his motion to suppress the statement he gave to the police. We disagree with the defendant’s principal evidentiary claim and conclude that he may not ask the jury to infer from the victim’s alleged status as a drug dealer that the victim was armed and about to use deadly physical force against him and may not rely on that improper inference as justification for killing the victim in self-defense. See State v. Lewis, 220 Conn. 602, 619-20, 600 A.2d 1330 (1991). Evidence of the victim’s alleged involvement in drug activity was, thus, properly excluded. We also conclude that the court properly excluded evidence of the defendant’s knowledge of the prior arrests of the victim, the victim’s alleged status as a fugitive and the victim’s blood alcohol content on the night of the shooting and, therefore, reject all of the defendant’s evidentiary claims. Finally, because the defendant has not shown that the court’s findings as to the voluntariness of his confession were clearly erroneous, and because the court’s factual determinations support the finding that the defendant’s confession was voluntary, we conclude that the court properly denied the motion to suppress the defendant’s confession and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Several days prior to October 20, 2002, the defendant and some others, including Elvis Castro and Castro’s girlfriend, Vanessa Garcia, were at the Los Amigos pool hall in Waterbury. At some point, an altercation ensued between the defendant and a group of patrons, which included the victim, Juan Carlos Martinez, also known as Jeremy Contres. During the altercation, the defendant was beaten and struck in the head with beer bottles.

On October 20, 2002, the defendant, Castro and a few others went to the Eldorado Cafe in Waterbury. While having drinks, the defendant recognized one or more persons in the cafe as having been part of the group of people who had been at the pool hall days earlier and had beaten him. Thereafter, the defendant exited the cafe. A confrontation subsequently occurred between the defendant, the victim and others. The defendant shot the victim, and the victim died. The defendant admitted shooting the victim but asserted that the shooting had been done in self-defense. The defendant subsequently was arrested. He was charged by information with murder in violation of General Statutes § 53a-54a (a). After a trial to the juiy, the defendant was convicted of the lesser included offense of manslaughter in the first degree with a firearm. The court sentenced the defendant to thirty-eight years imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court’s exclusion of certain evidence constituted an abuse of discretion and deprived him of his constitutional right to present a defense as guaranteed by the sixth and fourteenth amendments to the United States constitution. Specifically, the defendant argues that the court improperly excluded evidence material to his claim of self-defense. We disagree.

We first set forth our standard of review. “As we recently observed, [a] defendant’s right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence. . . . The sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated. . . .

“The standard of review we apply to a trial court’s evidentiary rulings is well settled. Such rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion. . . . Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. ... In our review, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . .

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. ... To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . The determination of whether a matter is relevant to a material issue rests within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Miller, 95 Conn. App. 362, 386-88, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006).

A

The defendant claims that the court’s refusal to allow him to testify regarding the victim’s alleged drug activity constituted an abuse of discretion and deprived him of his constitutional right to present a defense as guaranteed by the sixth and fourteenth amendments to the United States constitution. We disagree.

The following additional facts are relevant to our resolution of this issue. At the close of the state’s casein-chief, the court heard an offer of proof concerning certain evidence sought to be admitted by the defendant. The defendant sought to testily that the victim had been engaged in the selling of drugs and that persons engaged in such activity usually carry guns and large amounts of cash. The defendant also sought to testify that he had been engaged in drug transactions with the victim and the other participants in the pool hall fight and that the initial fight did not concern a baseball cap, but rather concerned a drug transaction that had ended badly. See footnote 2. The defendant claimed that this evidence was admissible as proof of his state of mind, namely, his fear of the victim and his perception that the victim was dangerous and armed, and, therefore, that the evidence was relevant to his claim of self-defense. The court excluded the proffered evidence regarding drug related activity, reasoning: “I’m not trying, [a] drug case. ... It is confusing the issue at hand. Did [the defendant] intend to cause the death of [the victim]? That’s the issue.”

The matter was revisited the next morning. The defendant again sought to testify that the pool hall incident was the result of a disagreement concerning a drug transaction but acknowledged that such evidence might be prejudicial and inflammatory. The court repeated its earlier ruling that the evidence related to “a collateral issue at best in terms of his self-defense. . . . [I]t focuses the jury on something other than the issue here. . . . It’s not going to be a minitiial on who’s a drug dealer, how is he involved in cbrug dealing. It lends itself to speculation, conjecture, aside from the issue.”

At trial, the defendant testified that the pool hall fight did not concern a baseball cap. He also testified that the victim had participated in the fight and had struck him in the head with a beer bottle. He further testified that he had not sought medical attention following the pool hall fight because Castro had told him that he and his family would be in danger from the people who had attacked him at the pool hall if the police became involved. Specifically, the defendant testified that on October 20, 2002, he was in fear of the victim, who had a reputation in the community as being a dangerous and violent person. Additionally, the defendant testified that as a result of his fear, he had purchased a handgun for protection.

The defendant claims that the excluded evidence was relevant to his state of mind at the time of the shooting. The defendant argues that his proffered testimony that the victim was a drug dealer and that drug dealers are often armed constitutes evidence of the victim’s propensity for violence and was relevant to his state of mind. The defendant, however, has failed to demonstrate that the evidence of drug activity on the part of the victim was relevant to the issue before the jury.

The unsubstantiated allegation by the defendant regarding the status of the victim as a drug dealer, without more, was not probative of the victim’s propensity for violence under State v. Carter, 228 Conn. 412, 636 A.2d 821 (1994). In Carter, our Supreme Court held that the trial court’s denial of the defendant’s request to open his case after the defense had rested to allow the introduction of the victim’s criminal record, which included a conviction for possession of narcotics with intent to sell, was unreasonable and, therefore, constituted an abuse of discretion. Id., 416-29. Regarding the admissibility of the victim’s prior narcotics conviction, the court observed: “Although a drug trafficking conviction, without more, is not likely to be probative of a homicide victim’s propensity for violence, notwithstanding the well established correlation between drug dealing and firearms . . . such a conviction may be relevant to the victim’s violent character, and therefore to the defendant’s claim of self-defense, depending upon the specific facts and circumstances of the case and the conviction. Here, the victim’s drug dealing activities were so closely linked to the victim’s alleged Ado-lent conduct and use of firearms, and to the defendant’s alleged fear of the victim, that the Adctim’s recent conviction for possession of narcotics with intent to sell had a direct bearing on the defendant’s claim that the victim was a violent drug dealer whom the defendant had shot and killed in self-defense.” (Citations omitted; internal quotation marks omitted.) Id., 424 n.15. In this case, the victim’s alleged involvement in drug activity was not based on a criminal conviction but solely on an unsubstantiated allegation by the defendant.

Additionally, a person’s status as a drug dealer and the well established correlation between drug dealing and firearms; see, e.g., State v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993); is insufficient to substantiate a belief that such a person is armed or dangerous at the time he is killed. According to State v. Lewis, supra, 220 Conn. 619-20, evidence that the victim was a drug dealer, if credited, would not have allowed the jury to find that at the time the defendant killed the victim, it was reasonable for him to believe that the victim was about to use deadly physical force or to inflict great bodily harm and that it was necessary to kill the victim to prevent such conduct. Furthermore, in this case, no evidence was adduced or proffered that the victim was armed when the defendant shot him or even that the defendant had ever seen or known the victim to be in possession of a firearm. There was no evidence that drug activity played a role on the night that the victim was shot. Consequently, the excluded evidence was not relevant, as the defendant contends, to put the shooting in proper context.

B

The defendant next claims that the court improperly excluded proffered evidence regarding his knowledge of the prior arrests of the victim, the victim’s alleged status as a fugitive, the victim’s use of an alias and the victim’s blood alcohol content on the night of the shooting. We address each challenged exclusion in turn.

1

During the defendant’s offer of proof at the close of the state’s case-in-chief, he, inter alia, sought to admit evidence that he knew that the victim previously had been arrested in other states. The court properly excluded this evidence.

It is undisputed that the victim had never been convicted of any crime. Although specific acts of violence not resulting in a criminal conviction are inadmissible to prove the victim’s violent character; State v. DeJesus, 260 Conn. 466, 482, 797 A.2d 1101 (2002); “[e]vidence of prior bad acts by the victim perpetrated on the defendant may be admissible to show the defendant’s state of mind.” State v. Collins, 68 Conn. App. 828, 836, 793 A.2d 1160, cert. denied, 260 Conn. 941, 835 A.2d 58 (2002). The specific acts leading to the victim’s arrest in other states are not admissible under Collins because those acts did not involve the victim and the defendant. We conclude, therefore, that the court did not abuse its discretion in precluding the defendant from testifying as to his knowledge of the prior out-of-state conduct and subsequent arrests of the victim.

2

The defendant also sought to admit evidence that he was aware that the victim was a fugitive from other states, arguing that the victim’s status as a fugitive was relevant to his state of mind and the reputation of the victim. The court properly excluded this evidence. “While relevant evidence is generally admissible, the trial judge has a certain amount of discretion in excluding such evidence; matters likely to mislead a jury, or to be misused by it, or to unnecessarily complicate a case, or of slight, remote, or conjectural significance, ought not to be admitted.” (Internal quotation marks omitted.) State v. Gooch, 186 Conn. 17, 23, 438 A.2d 867 (1982). Without some specific connection between the victim’s alleged status as a fugitive and the defendant’s interaction with the victim, the proffered testimony bore no logical connection to the victim’s propensity for violence or aggression toward the defendant.

3

The defendant also proffered evidence that the victim used the alias, Jeremy Contres, in order to explain references to the victim by this name during the defendant’s discussions with the police. The court saw no “problem with that question” and admitted the evidence for that purpose. The defendant seems to claim that the court improperly failed to admit the evidence for the purpose of showing the defendant’s state of mind at the time of the shooting. The trial record before us does not indicate that he proffered the evidence for any purpose other than to explain the use of the name, Jeremy Contres, during the defendant’s interview with police.

4

Finally, the defendant proffered testimony that, on the basis of his observations, he believed that the victim may have been intoxicated. The defendant claimed that intoxication would have led the victim to have an increased level of aggression, and, therefore, evidence of the victim’s intoxication was relevant to whether the victim was the initial aggressor and relevant to the defendant’s state of mind at the time of the shooting, namely, the reasonableness of his fear. The defendant sought to call a toxicologist to testify that the autopsy records indicated that the victim’s blood alcohol content was 0.17 of a percent. The court permitted the defendant to testify regarding his observations on which he based his belief that the victim was intoxicated. The court, however, excluded evidence regarding the victim’s blood alcohol content to show that the victim was the aggressor, absent some evidence that the alcohol in the victim caused him to be more aggressive. The court offered to excuse the jury if and when such connective evidence were proffered. The defendant never proffered evidence establishing such a connection. The court, therefore, properly determined that the defendant’s proffer regarding the victim’s blood alcohol content was deficient because it lacked any evidence connecting the victim’s level of intoxication with a tendency toward aggression.

Accordingly, we conclude that to the extent that the court excluded evidence as claimed by the defendant, such exclusion was not improper.

II

The defendant next claims that the court improperly denied his motion to suppress the statement he gave to the police. Specifically, the defendant contends that his statement was involuntary and the consequence of pressures exerted by the police. We disagree.

Our standard of review of the court’s findings and conclusions in connection with a motion to suppress is well established. “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 memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 514, 903 A.2d 169 (2006).

“[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... The ultimate test remains .... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. . . . [W]e review the voluntariness of a confession independently, based on our own scrupulous examination of the record. . . .

“We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Internal quotation marks omitted.) State v. Spells, 76 Conn. App. 67, 88, 818 A.2d 808, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003).

“The admissibility of a confession is initially a question of fact for the trial court. ... In view of the constitutional dimension of the issue, the trial court’s finding of voluntariness is, however, subject to an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . . We review the record in its entirety, and are not limited to the evidence before the trial court at the time the ruling was made on the motion to suppress.” (Citations omitted; internal quotation marks omitted.) State v. Whitaker, 215 Conn. 739, 742, 578 A.2d 1031 (1990).

Our examination of the record relating to the interrogation reveals the following. In his motion to suppress filed April 12, 2005, the defendant alleged, inter alia, that his statement had been given involuntarily in violation of Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). On May 5, 2005, a hearing was held on the motion. Detective Sergeant Eugene Coyle and Detective Michael O’Loughlin were the only witnesses who testified at the hearing on the motion to suppress.

Coyle testified that when he first arrived on the scene of the shooting, he approached the defendant, who at that time already was in custody, introduced himself and asked the defendant if he knew what had happened. In response, the defendant stated that he had nothing to say. Subsequently, the defendant was transported to a holding cell. At approximately 2:30 a.m., Coyle entered the holding cell, advised the defendant of his Miranda rights and asked him if he knew anything about the murder. The defendant again told Coyle that he had nothing to say, and Coyle left the holding cell. Later that morning, at approximately 8:30 a.m., Coyle returned again to the holding cell and informed the defendant that after interviewing numerous individuals, the defendant had been implicated as the shooter in the murder investigation. The defendant agreed to speak with Coyle, was taken to an interview room and was advised again of his Miranda rights, which he acknowledged and waived in writing. The defendant thereafter provided the police with the information contained in his written statement.

O’Loughlin testified that he was present in the interview room while Coyle conducted his interview of the defendant. O’Loughlin observed the defendant receive and waive his Miranda rights and give his statement. O’Loughlin testified that the defendant was subjected to no threats of any kind.

The defendant argued at the suppression hearing that his statement had been obtained unlawfully because “he wasn’t given the opportunity ... to get a lawyer, talk to a lawyer. . . . He’s there for approximately twelve hours. He does not see a lawyer. . . . That would be [the] claim, Your Honor.” The court denied the motion and found that the defendant was in custody, Miranda warnings were given and that the defendant made a knowing, voluntary and intelligent waiver of those rights. The court also found that the defendant’s confession was given in a free and voluntary manner absent any compulsion by the police.

Although he did not testify at the suppression hearing, the defendant did testify at trial. He stated that while at the police station he was scared, in denial and was crying, felt sick to his stomach and was told by Coyle that if he did not cooperate with the police, he would “never see the light of day . . . again.” He also testified that he had consumed alcohol prior to giving his statement to the police. On appeal, the defendant argues that we must analyze the voluntariness of his confession on the basis of the entire record, including his trial testimony. In doing so, we conclude that the court’s finding that the defendant’s confession was given in a free and voluntary manner must stand.

After informing the defendant that he had been implicated as the shooter in the murder investigation, the defendant agreed to speak with Coyle. The defendant was advised of his Miranda rights for a second time and waived those rights in writing. “[A] warning at the time of the interrogation is indispensable to overcome its pressures and to [e]nsure that the individual knows he is free to exercise the privilege at that point in time.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 338, 696 A.2d 944 (1997). There was no evidence offered that the defendant had requested an attorney.

The defendant maintains that circumstances of his interrogation were coercive, that he was only twenty years old and had completed only one year of high school, that he had been held in police custody for twelve hours prior to interrogation, that he had had at least some drinks prior to his arrest and that there was no evidence that he was provided with either food or drink at the police station. Although these factors are relevant to the voluntariness determination, they are not dispositive. “The use of drugs or the ingestion of alcoholic beverages does not, in and of itself, render a subsequent confession inadmissible, but it is one factor to be considered in judging the voluntariness of a statement.” State v. Madera, 210 Conn. 22, 42, 554 A.2d 263 (1989). The defendant’s trial testimony that he consumed only two beers at the cafe twelve hours prior to giving his statement to police undermines any suggestion that the influence of alcohol played a role in his decision to confess. We also note that the defendant was in police custody for approximately twelve hours and interviewed by police for approximately one hour before giving his written confession. See State v. Carter, 189 Conn. 631, 638, 458 A.2d 379 (1983) (eight hour period of detention before having given third confession, although substantial, “does not remotely approach the length of those interrogations held to be so objectionable on that ground among others as to warrant reversal of a finding by a trial court that a confession was voluntary”); see also State v. Lapointe, 237 Conn. 694, 734, 678 A.2d 942 (eight and three-quarter hour police interview), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); State v. DeAngelis, 200 Conn. 224, 233, 511 A.2d 310 (1986) (ten and one-half hour police interview).

In this case, there is no evidence that the police officers who interviewed the defendant subjected him to protracted periods of grueling interrogation. Additionally, the defendant has not pointed us to anything in the record that would indicate that he was susceptible to coercion on the basis of his age or level of education. See State v. Perez, 218 Conn. 714, 722, 591 A.2d 119 (1991) (age fourteen); State v. Spyke, 68 Conn. App. 97, 101, 792 A.2d 93, (age sixteen; failed to complete ninth grade), cert. denied, 261 Conn. 909, 804 A.2d 214 (2002). Although the defendant claims that there was no evidence in the record that he was provided with either food or drink at the police station, he does not direct us to any evidence in the record that would indicate that he was denied such necessities. The defendant also argues that his statement was involuntary because he was in a fragile emotional state. However, “the fact that [a] defendant was . . . upset emotionally, [does not] necessarily render his statements inadmissible.” (Internal quotation marks omitted.) State v. Madera, supra, 210 Conn. 44.

In this case, other relevant factors also indicate that the defendant did not confess because his will to remain silent was overborne but, rather, that he confessed of his free will. The defendant testified at trial that the police did not hurt him physically and that he decided to talk to the police in the morning after the incident because Coyle informed the defendant that he had spoken with Castro, and he thought Castro had told Coyle the truth when they spoke, and, accordingly, the defendant wanted to speak with Coyle. The defendant also had prior experience with the criminal justice system. His prior exposure to the criminal justice system, as a result of at least five prior arrests in a number of different states, is relevant to his claim of police coercion in obtaining the confession. See id., 45. Given this prior experience, we conclude that at the time he gave his statement to the police, the defendant was well acquainted with the criminal justice system. Accordingly, Coyle’s alleged “light of day” comment was unlikely to have had an effect on the defendant. Taken as a whole, the officer’s comment did not constitute conduct “such as to overbear [the defendant’s] will to resist and bring about confessions not freely self determined . . . .” (Internal quotation marks omitted.) State v. Boscarino, 204 Conn. 714, 740, 529 A.2d 1260 (1987). On the basis of our scrupulous and independent review of the entire record, we conclude that the state has proven the voluntariness of the defendant’s confession by a preponderance of the evidence. See State v. Lawrence, 282 Conn. 141, 177, 920 A.2d 236 (2007).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55a (a) provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. ...”

       Castro and Garcia testified that the altercation began when the defendant removed a baseball cap from another person’s head and refused to return it. The defendant testified that the altercation did not concern a baseball cap.

       In his written and signed statement, the defendant admitted to shooting the victim on the night in question.

       The defendant chose not to testify at the pretrial hearing on his motion to suppress. At trial, however, he testified as to his fragile emotional state and that Coyle told him that if he did not cooperate, he would “never see the light of day . . . again.” We also consider it significant that the defendant never asked the trial court, to reconsider its findings made at the suppression hearing in the light of his trial testimony. See State v. Lewis, 60 Conn. App. 219, 245 n.28, 759 A.2d 518, cert. denied, 255 Conn. 906, 762 A.2d 911 (2000).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIS WRIGHT
    (AC 28037)
    McLachlan, Beach and Pellegnno, Js.

      Argued January 4
    officially released March 11, 2008

      Christopher M. Neary, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Jeffrey Lee, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Willis Wright, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32. On appeal, he claims that the court (1) improperly found that there was sufficient evidence before it to establish, by a preponderance of evidence, that he violated the terms of his probation and (2) abused its discretion when it found that the rehabilitative aspects of the defendant’s probation were no longer being met. We affirm the judgment of the trial court.

In 2003, the defendant pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and was sentenced to a term of ten years imprisonment, execution suspended after two years, and five years probation. The defendant also pleaded guilty to reckless endangerment in the first degree in violation of General Statutes § 53a-63 and was sentenced to one year imprisonment, execution suspended, and three years probation, to run concurrently with his sentence on the narcotics charge. In January, 2004, the defendant was released from prison and began serving his probationary term. One condition of his probation was that he not “violate any criminal law of the United States, this state or any other state or territory.”

Evidence was presented at the violation of probation hearing from which the court reasonably could have found the following facts. On November 23, 2004, the defendant and his girlfriend, Alisha Padilla, were engaged in a dispute while Padilla was en route to cash a check. After Padilla told the defendant she no longer wanted to speak with him, the defendant grabbed Padilla’s purse from her arm, removed several pieces of identification and threw the purse on the ground. Padilla called the police, who arrested the defendant and charged him with robbery in the third degree in violation of General Statutes § 53a-136. Padilla later indicated that she did not want to pursue charges against the defendant. The defendant’s probation officer, Emily Cross, noted the arrest but did not pursue a warrant for his arrest for violation of probation at that time.

The following summer, on August 2, 2005, Officer William Rivera of the Hartford police department and United States Marshal Andrew Tingley were assigned to patrol the north end of Hartford as part of a joint task force aimed at combating violent crime. They were in an unmarked car with tinted windows and were dressed in plain clothes. As they were heading north on Main Street, Rivera saw the defendant walking along the street and drove over to the curb. Rivera wanted to speak with the defendant, whom he recognized from a previous arrest, about a shooting that had taken place earlier in the summer in which the defendant had been shot and injured and the defendant’s friend had been killed. Rivera also thought the defendant might be in possession of a handgun.

After Rivera had driven to the curb, Tingley rolled down the passenger side front window. The defendant approached the car and, after seeing the occupants, put his hand near his waistband and exposed a black handle. Tingley and Rivera thought the object was a gun, and Rivera sent a dispatch alerting Hartford police that the defendant had a firearm. When the defendant saw Rivera making a police dispatch, he immediately fled northbound on Main Street. Rivera and Tingley pursued the defendant by vehicle and then on foot. Their pursuit was assisted by civilians who told them the direction in which the defendant was headed. Eventually, the foot chase led Tingley and Rivera to 29 Mather Street, a multifamily residence, where they were told by police officers already at the scene that two individuals had run into the building.

One of those officers, Detective Patrick Farrell, after having arrived at the scene, saw that a panel of the right front door of the building appeared to have been kicked in. Farrell looked into the opening and saw an individual hiding in the stairwell. Officers entered the building and detained a Hispanic male. Because he did not fit the description of the defendant, a black male, the officers continued to search the building until they came to a bedroom in the apparently abandoned third floor apartment that was locked from the inside. At that time, there were five or six officers on the third floor, and transmission over the police radio was loud enough for anyone in the third floor to hear that police were present. A canine unit was dispatched, and police announced that a dog was going to search the premises. A police dog searched for but did not locate the defendant. A SWAT team was then dispatched. While waiting for it to arrive, Farrell heard noises coming from the locked bedroom. Officers forced their way into the room and found the unarmed defendant hiding in a closet. The defendant was arrested and charged with burglary, criminal possession of a weapon, carrying a pistol without a permit, theft of a firearm and interfering with a peace officer. After the defendant was arrested, Tingley and Rivera attempted to retrace the defendant’s path. They found a firearm in a grassy area behind a fence but had not seen the defendant run past that area. When Cross became aware of the second arrest, she pursued a warrant for the defendant’s arrest for violation of probation, as she believed that the beneficial aspects of probation no longer existed for the defendant.

On June 27 and July 20, 2006, a violation of probation hearing was held at which Padilla, Tingley, Farrell, Cross and the defendant testified before the court, Mullarkey, J. After hearing testimony, on July 20, 2006, the court found a violation of a condition of the defendant’s probation, concluding, “by more than a fair preponderance of the evidence,” that the state had met its burden of proof on the charges of burglary in the third degree and criminal trespass in the second degree. The court further found that “the beneficial and rehabilitative aspects of the defendant’s probation not only are no longer being met but were not even being met while the defendant was on probation.”

On July 28, 2006, the defendant pleaded guilty to robbery and larceny charges arising out of his conduct on November 23, 2004. The court sentenced the defendant to serve a total effective sentence of ninety months on those charges. On July 28, 2006, the court also sentenced the defendant to serve a ninety month sentence on the violation of probation charge to run concurrently with his sentence on the burglary and robbery conviction. This appeal followed.

As a preliminary matter, the state claims that, pursuant to State v. Singleton, 274 Conn. 426, 436, 876 A.2d 1 (2005), and State v. Preston, 93 Conn. App. 527, 889 A.2d 845, cert. granted, 278 Conn. 901, 896 A.2d 106 (2006), the defendant’s appeal is moot because he pleaded guilty to charges that were included in one of the grounds for the state’s claim that the defendant violated the terms of his probation. We are not persuaded.

Mootness implicates the subject matter jurisdiction of this court. State v. Singleton, supra, 274 Conn. 436. It is a well settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction. Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 125, 836 A.2d 414 (2003). “A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Board of Education v. State Board of Education, 243 Conn. 772, 777, 709 A.2d 510 (1998). Here, the warrant against the defendant for violation of probation was based on charges arising out of two separate events, namely, the November, 2004 robbery incident and the August, 2005 burglary incident. In its oral decision regarding the violation of probation, however, the court made an unequivocal finding only as to the burglary. Therefore, despite the defendant’s guilty plea as to the robbery, an actual controversy still exists as to the conduct that gave rise to the court’s finding of a violation of probation. Put another way, as in Singleton, the defendant here pleaded guilty to a crime charged as a basis for violation of probation; unlike in Singleton, however, the defendant did not plead guilty to the same criminal transaction for which probation was revoked. Consequently, we conclude that the defendant’s claims on appeal are not moot because a controversy exists as to the burglary charge, on which the probation violation was based, but to which the defendant did not plead guilty.

I

The defendant first claims that the court improperly found that there was sufficient evidence before it to establish, by a preponderance of evidence, that he violated the terms of his probation. Specifically, the defendant argues that there was not sufficient evidence to find that he committed burglary in the third degree because the state did not establish (1) that the burglary occurred at night, (2) that the building the defendant entered was occupied and (3) that the defendant intended to commit a crime therein. We disagree.

“A challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. ... A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 80-81, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003).

A

The defendant first argues that there was insufficient evidence to find him guilty of burglary in the third degree because the state failed to prove that “the breaking and entering occurred at night . . . .” We disagree.

In crafting his argument, the defendant fails to recognize that the court found that the state met its burden of proof on the charge of burglary in the third degree. Although proof of commission of a burglary at night is a required element of burglary in the second degree; see General Statutes § 53a-102 (a) (1); State v. Russell, 101 Conn. App. 298, 323, 922 A.2d 191 (“[t]o convict the defendant of burglary in the second degree, the state needed to establish . . . that he entered or remained in the victim’s house unlawfully and that he did so at night with the intent to commit a crime therein”), cert. denied, 284 Conn. 910, 931 A.2d 934 (2007); burglary in the third degree has no such requirement. See General Statutes § 53a-103 (a) (“[a] person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein”). Accordingly, the state was not required to prove that the defendant entered 29 Mather Street at night to prove a violation of burglary in the third degree.

B

The defendant next argues, presumably in reference to the court’s finding that the state met its burden of proof on the lesser included charge of criminal trespass in the second degree, that the state failed “to show that someone or some entity has occupational rights to [29 Mather Street].” The state counters that such a showing is not required. We agree with the state.

General Statutes § 53a-108 (a) provides in relevant part that “[a] person is guilty of criminal trespass in the second degree when, knowing that such person is not licensed or privileged to do so, (1) such person enters or remains in a building . . . .” The defendant’s argument relies on the language found in General Statutes § 53a-100 (a), which provides in relevant part that “ ‘[b]uilding’ in addition to its ordinary meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or any building with a valid certificate of occupancy . . . .” (Emphasis added.) According to the defendant, because the state did not produce a certificate of occupancy for 29 Mather Street and the apartment appeared to be abandoned, he could not have committed a trespass in the second degree.

“In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) State v. Bennett-Gibson, 84 Conn. App. 48, 68, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d 570 (2004). A common sense reading of § 53a-100 leads us to the conclusion that, in addition to the ordinary meaning of building, a certificate of occupancy may be used to bring any other structure within the meaning of the statute if it does not fit within the ordinary meaning of that term. Accordingly, no certificate is required to be shown if the structure in question falls within the ordinary meaning of building. This court, citing Black’s Law Dictionary, has defined the term “building” as a “[structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like.” (Internal quotation marks omitted.) State v. Perez, 78 Conn. App. 610, 636, 828 A.2d 626 (2003), cert. denied, 271 Conn. 901, 859 A.2d 565 (2004). The structure in question here was described by Farrell as a multifamily residence that appeared to be either abandoned or under reconstruction. This description of the premises falls within the ordinary meaning of building. Therefore, the state was not required to prove any specific ability to occupy 29 Mather Street.

C

The defendant also argues that the state failed to prove that he intended to commit a crime upon entering 29 Mather Street. The essence of the defendant’s argument is that, notwithstanding his flight from police and subsequent concealment in 29 Mather Street, the court improperly failed to consider the defenses of self-defense and necessity as justifications for the defendant’s actions. We are not persuaded.

The following additional facts are necessary to our resolution of the defendant’s claim. At the probation hearing, the defendant testified that he was in a constant state of fear during the summer of 2005 because he had sustained a gunshot wound in a shooting incident in which a close friend had been killed. The defendant further testified that he fled from police because he thought they were assailants from a rival neighborhood faction. In reaching its disposition on the violation of probation charge, however, the court expressly did not credit the defendant’s version of events.

Nevertheless, even if the defendant’s testimony had been credited, neither the statutory defense of self-defense nor the common-law defense of necessity are applicable to the situation at hand. The defense of self-defense may be implicated only when a defendant has used force on another. See General Statutes § 53a-19 (a) (“a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force”). The defendant did not use force on any of the officers present at the scene. The defense of necessity requires “a showing by the defendant (a) that there [was] no . . . legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipated to exist between [the] defendant’s action and the avoidance of harm.” (Internal quotation marks omitted.) State v. Marsala, 59 Conn. App. 135, 142, 755 A.2d 965, cert. denied, 254 Conn. 948, 762 A.2d 905 (2000). A review of the record reveals that the defendant’s testimony provided no evidence of imminent harm or lack of legal alternatives available to him.

Because there was evidence to support a conclusion that the defendant intended to interfere with the police, we conclude that the court’s finding that the state met its burden of proof on the charge of burglary in the third degree was not clearly erroneous.

II

The defendant next claims that the court abused its discretion by finding that the rehabilitative aspects of probation were not being met. We disagree.

“On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public. ... As we have stated, the court is vested with broad discretion in determining whether to revoke a defendant’s probation, and we will not disturb a court’s decision revoking a defendant’s probation unless an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Miller, 83 Com. App. 789, 799-800, 851 A.2d 367, cert. denied, 271 Com. 911, 859 A.2d 573 (2004).

General Statutes § 53a-32 (b) provides in relevant part that revocation shall not be ordered “except upon consideration of the whole record . . . .” The record reveals that the defendant’s underlying conviction was for possession of narcotics and reckless endangerment. The probation officer testified that “because we have someone out in the community that keeps getting arrested, and these are becoming increasingly serious crimes, and I’ve done the best I could to locate this person, to contact this person, to refer him to a program, to meet with him, and he’s continued to get arrested ... in my opinion, the beneficial aspects of probation no longer exist.” In addition, the court found that the defendant had been arrested on two separate occasions and had committed burglary. Those findings alone were sufficient to support the revocation of probation. Cf. Payne v. Robinson, 10 Conn. App. 395, 402-403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). Upon review of the entire record, we conclude that the court’s finding that the rehabilitative aspects of probation were not being met was not an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record is not clear as to whether burglary in the second degree or burglary in the third degree was claimed by the state to be a basis of the violation of probation hearing. Because the court clearly found that the defendant committed burglary in the third degree, the discrepancy is immaterial.

       Specifically, the defendant pleaded guilty to larceny in the second degree in violation of General Statutes § 53a-123 and robbery in the third degree in violation of § 53a-136.

       We note that even though the sentences in this case were concurrent, and there is no dispute as to the robbery plea and sentence, case law supports the notion that collateral consequences would result from a finding of violation of probation. See, e.g., State v. McElveen, 261 Conn. 198, 216, 802 A.2d 74 (2002). The case, therefore, is not moot.

       The defendant failed to preserve this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “We have stated . . . that [a]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Brown, 90 Conn. App. 835, 838, 879 A.2d 466, cert. denied, 276 Conn. 901, 884 A.2d 1026 (2005).

       We note that Preston, supra, 93 Conn. App. 527, held that on the facts of that case there was no controversy as to whether a condition of probation was violated, so any dispute as to the disposition phase was also moot. Preston is not relevant to the case at hand because we have concluded that there is a case or controversy on the issue of whether the underlying crime (burglary) was committed.


author: GRUENDEL, J.

text:
    GUS CURCIO v. DANIEL BAX ET AL.
    (AC 28065)
    Gruendel, Harper and Berdon, Js.

      Argued January 8
    officially released March 11, 2008

      Nathalie Feola-Guerrieri, with whom, on the brief, was Daniel Shepro, for the appellant (plaintiff).

      Anthony M. Macleod, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The plaintiff, Gus Curcio, sought damages under General Statutes § 49-8 (c), a temporary and permanent injunction requiring the defendants, Daniel Bax and Katherine Bax, to execute a release of the security on a promissory note and a judgment that he is not liable to the defendants for further payments. The trial court rendered judgment in favor of the defendants. From that judgment, the plaintiff appeals. He claims that the court improperly concluded that he was not entitled to a credit against the purchase price when it (1) erroneously found that he was not entitled to credits for certain debts and (2) failed to include a credit against the purchase price for sales tax in interpreting the parties’ settlement agreement. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. On June 18, 2001, the plaintiff and the defendants entered into a settlement agreement under which the plaintiff purchased from the defendants 100 percent of the stock and some of the assets of the Bax Group, Inc. (corporation), a Connecticut corporation doing business as Charity Technologies, for $475,000. The purchase price was to be paid by a nonrefundable deposit in the amount of $100,000, a certified or bank check in the amount of $175,000 and a promissory note in the amount of $200,000. The promissory note contained two early payoff provisions. Relevant to this appeal is § 1 (d) of the promissory note, which provides that if the plaintiff pays the defendants $102,500 on or before July 31, 2001, then the balance due shall be fully satisfied and the defendants shall mark the note as paid in full and return it to the plaintiff.

Section eight of the settlement agreement provides that the plaintiff will assume certain corporation debts and liabilities, which do not exceed an agreed estimated amount. If the actual debts exceed the agreed estimated amount by more than $15,000, the plaintiff will be entitled to a credit against the purchase price. Section eight of the settlement agreement provides in relevant part: “Buyer understands that [the corporation] owes debts (and such debts of Sellers that were utilized for [coiporation] business) that total approximately $1,425,000 as of June 18, 2001 and as set forth in schedule 3. . . . While Sellers have made a good faith attempt to list all [corporation] debts as of the date of this Agreement, it is understood and agreed that Sellers shall not be considered to have materially breached this Agreement in the event that any debt is understated by $5,000 or less, or if in the aggregate they failed to disclose or understate [corporation] debts of up to a maximum of $15,000. Accordingly, Buyer shall not be entitled to a set-off or credit in the purchase amount for the foregoing debts unless the aggregate exceeds the amount of $1,425,000.00 (less $75,000 paid from Seller’s funds) plus $15,000 but Buyer shall be entitled to a credit or reimbursement for any excess of $1,440,000.”

In a letter dated July 30, 2001, the plaintiff notified the defendants that, after calculating the corporation’s actual debts, he discovered that they exceeded the estimated debts listed in schedule three by at least $102,500, the amount due under the early payoff provision contained in the promissory note. He therefore requested that the credit he was owed be used to satisfy the promissory note in full. In October, 2001, the plaintiff sent the defendants a second letter in which he estimated that the actual debt exceeded the estimated debt by $162,395.22. When the defendants did not apply the calculated credit to the note and release the mortgage, the plaintiff commenced an action for damages under § 49-8 (c), an injunction to compel the defendants to release the security on the promissory note and a judgment that he was not liable for future payments to the defendants. After a trial to the court, the court found that the plaintiff was not entitled to a credit against the purchase price and that he had not tendered $102,500 on or before July 31,2001, in accordance with the note’s early payoff provision. Therefore, the court ruled that the plaintiff was not entitled to a release of the security on the note, and, consequently, he was not entitled to damages pursuant to § 49-8 (c) or a judgment that he was no longer liable to the defendants for further payments. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that several of the court’s findings of fact regarding whether he was entitled to a credit against the purchase price were clearly erroneous. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 517, 914 A.2d 1058 (2007). We conclude that there is evidence in the record to support each challenged finding.

The plaintiffs July 30, 2001 letter included a list of debts for which the plaintiff claimed a credit against the purchase price. The plaintiff claimed that the actual amounts of twenty-four debts listed on schedule three exceeded the estimated amounts by enough to warrant a credit against the purchase price, in accordance with § 8 of the agreement. On appeal, the plaintiff claims that the court made improper findings regarding the difference between the estimated debt and the actual debt for the following items: property taxes, accrued payroll, two American Express debts, May and June commissions, consulting services, commission check corrections, a Verizon check and unemployment payments.

The court found that the plaintiff failed to provide evidence to substantiate his claimed credits for property taxes, May commissions and Connecticut unemployment benefits payments. Specifically, the court found that the plaintiff failed to provide the court with any tax bills as proof of the claimed property tax debt, the calculation of the May commissions debt was fraudulent and the plaintiff failed to provide the court with any other valid evidence for it to use to determine the amount of credit, if any, to which the plaintiff was entitled, and the plaintiff failed to prove that he paid the employees or the state the claimed unemployment benefits debt. On appeal, the plaintiff merely recites the estimated debt for each item and the actual debt as calculated by him, as proof that he was owed a credit for each item. He does not offer any reason as to why the court’s findings were clearly erroneous. Because the plaintiff failed to refer this court to any evidence that refutes the trial court’s findings, we conclude that those findings are not clearly erroneous.

The court also found that the plaintiff was not entitled to his claimed credit for accrued payroll. When calculating the accrued payroll debt, the plaintiff used gross pay amounts as opposed to net pay amounts. The defendants testified that the federal and state tax debt for accrued payroll was listed as a separate debt on schedule three. Consequently, when the defendants listed the accrued payroll debt on schedule three, they listed it as a net pay amount as opposed to a gross pay amount. The court found that the plaintiff was not entitled to a credit for the amount of the claimed debt because it was the difference between the gross pay amount and the net pay amount, which was listed on schedule three as a separate tax debt. As there was evidence to support the court’s finding, it is not clearly erroneous.

The court found that the plaintiff was not entitled to a credit for the claimed American Express debt in excess of that listed on the agreement because he admitted at trial that § 8 of the agreement provides that he will indemnify the defendants and hold them harmless from American Express debt totaling not more than $135,000. The court found that the claimed debt did not exceed $135,000, and so the plaintiff was not entitled to a credit for the debt. As there was evidence to support the court’s finding, it is not improper.

The court found that the plaintiff was not entitled to a credit for commissions owed in June, 2001, prorated for the eighteen days in June prior to the closing. Although the agreement provided for an estimated amount for May commissions, it did not provide that the defendants would be responsible for a prorated amount for June commissions. The court found that because the agreement controls, the plaintiff was not entitled to the claimed debt. As there was evidence from which the court could make this finding, it, too, is not clearly erroneous.

Regarding consulting services, the plaintiff provided the court with invoices as well as a consulting service agreement. The service agreement provided that the services were performed for both the plaintiff and the defendants and that both were to give approval and authorization for services. On the basis of this evidence, the court found that the plaintiff and the defendants were responsible for the consulting service debt. Consequently, the plaintiff was entitled to half of his claimed excess debt for this item. In light of the foregoing, the court’s finding is not clearly erroneous.

The court also found that the plaintiffs claim for a commission check corrections debt was invalid because the debt was not contemplated by schedule three. The court determined that the corrections were the result of fraudulent calculations made by the plaintiffs computer analyst for May commissions. The fraudulent calculations for May commissions resulted in additional commissions checks being sent to certain customers. The court found that the agreement did not state that the defendants were responsible for calculating May commissions and that they should not be held liable for the results of the fraudulent calculations. Again, as there was evidence in the record to support this finding, it is not clearly erroneous.

Last, the court found that the plaintiff was not entitled to a claimed credit for a check returned by Verizon because this debt was disclosed on schedule six of the agreement as part of the outstanding operations budget. As there was evidence to support the court’s finding, it is not clearly erroneous.

II

The plaintiff next claims that the court improperly interpreted the agreement to provide that the Connecticut sales tax audit liability was a postclosing debt that he agreed to assume and for which he could not claim a credit.

The standard of review for the interpretation of a contract is well established. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [when] there is definitive contract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary].” (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 7,931 A.2d 837 (2007). “A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Kline v. Kline, 101 Conn. App. 402, 408, 922 A.2d 261, cert. denied, 284 Conn. 901, 931 A.2d 263 (2007). In the present case, the language of the settlement agreement concerning Connecticut sales tax audit liability is clear and definitive. Accordingly, our review of the court’s interpretation of the agreement involves a question of law over which our review is plenary.

The court found that, according to the language of the agreement, Connecticut sales tax audit liability was not a debt pursuant to § 8, for which the plaintiff could claim a credit against the purchase price. Rather, pursuant to § 10 of the agreement, it was a postclosing obligation that the plaintiff agreed to assume. Section ten of the agreement provides in relevant part: “The parties agree that on and after the closing date, all expenses of [the corporation’s] business operations, including, but not limited to . . . sale and use tax liability, including contingent liability arising from any audit relating to the post-closing periods or pre-closing period . . . shall be assumed by [the corporation].” The plaintiff claims that even though the debt is provided for in § 10, it is still a debt listed on schedule three, and, as such, any amount that exceeds the estimated amount on schedule three should be applied to a credit against the purchase price. The court found that although listed on schedule three, the sales and use tax audit liability is not a debt pursuant to § 8. Section eight provides in relevant part: “Buyer understands that [the corporation] owes debts . . . that total approximately $1,425,000 as of June 18, 2001 and as set forth in schedule 3.” The debts, therefore, contemplated by § 8 are those set forth on schedule three and those that figure into the total of $1,425,000. As the plaintiff contends, the debt for sales tax audit liability is listed on schedule three. It is listed, however, as a liability separate from the other debts that total $1,425,000. Therefore, according to the plain language of § 10, as well as the plain language of § 8, the credit claimed by the plaintiff, although appearing on schedule three, is not a debt pursuant to § 8 for which the plaintiff can claim a credit. The court, therefore, properly found that the plaintiff was not entitled to the claimed debt as a credit.

After resolving the plaintiffs claims regarding debts in excess of the amount agreed to, the court calculated the difference between the estimated debt listed on schedule three and the actual debt, which was comprised of the undisputed debt and half of the debt for consulting services. The court determined that the amount by which the actual debts exceeded the estimated debts was $14,313.42. Because this amount was within the agreed margin of error of $15,000 stipulated to in the agreement, the court determined that the plaintiff was not entitled to a credit against the purchase price. In addition, the court found that the plaintiff had not tendered to the defendants $102,500 on or before July 31, 2001, to render the note paid in full. The court concluded that the plaintiff was not entitled to a release of the security on the note and, consequently, not entitled to damages pursuant to § 49-8 (c) or a judgment that he was not liable to the defendants for further payments. We agree with the court and, accordingly, affirm the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-8 (c) provides in relevant part: “The mortgagee or plaintiff or the plaintiffs attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiffs attorney .... The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiffs attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorney’s fees.”

       The plaintiff also claims that the court improperly interpreted the parties’ settlement agreement (1) to require him to pay scheduled debts before receiving a credit against the purchase price, and (2) to require the promissory note be paid in cash and not by a credit against the purchase price. Because we conclude that the court’s finding that the plaintiff was not entitled to a credit against the purchase price was proper, we need not address those claims.

       The court found that nine of the debts listed by the plaintiff were not disputed by the defendants. The plaintiff includes eight of these undisputed debts in his claim on appeal. Because the court recognized these eight debts as undisputed and factored them into the amount owed to the plaintiff when it calculated whether the plaintiff was owed a credit against the purchase price, we will not address them.

       The plaintiff conceded at trial that his computer consultant simply multiplied the April commissions by 1.1 to calculate the claimed May commissions debt.

       The defendants conceded that the actual net accrued payroll exceeded the estimated net accrued payroll amount by $708.11. The court factored this amount into its calculation of excess debt in determining whether the actual debt exceeded the estimated debt to the extent that the plaintiff was entitled to a credit against the purchase price.

       This figure is a closing date estimate of debt. The actual total listed on schedule three is $1,419,479.28. It is clear from the agreement that the contingent use and sales tax liability estimate was not factored into either amount.

       Moreover, the court noted that on June 29, 2001, the plaintiff filed a petition in bankruptcy on behalf of the corporation. By the plaintiffs own admission, many of the debts for which he claimed a credit had been discharged by the Bankruptcy Court.


author: McLACHLAN, J.

text:
    MICHAEL J. JARRETT v. COMMISSIONER OF CORRECTION
    (AC 28297)
    DiPentima, McLachlan and Lavine, Js.

      Submitted on briefs January 4
    officially released March 11, 2008

      Michael Oh, special public defender, filed a brief for the appellant (petitioner).

      Gail P. Hardy, state’s attorney, James A. Killen, senior assistant state’s attorney, and John Dropick, former assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

McLACHLAN, J.

The petitioner, Michael J. Jarrett, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. This appeal comes to us some twelve years after the habeas court denied the petitioner’s first petition for a writ of habeas corpus. Although the court certified the appeal, none was filed. The petitioner, in his second petition for a writ of habeas corpus, claimed ineffective assistance of counsel for failure to prosecute the appeal. In that habeas proceeding, his appellate rights were reinstated, and, thus, this appeal is from his first habeas proceeding. The petitioner claims on appeal that the habeas court improperly sustained the objection by the respondent, the commissioner of correction (commissioner), to the introduction of evidence in support of his claim of an unconstitutional appellate delay. We affirm the judgment of the habeas court.

The underlying facts and procedural history are not in dispute. The petitioner was charged with the crime of murder, pursuant to General Statutes § 53a-54a (a), for an incident that occurred on September 6, 1983. The petitioner and his girlfriend had entered into a suicide pact, and in accordance with this pact he fatally stabbed her and then stabbed himself. On October 19, 1985, the petitioner was found guilty of murder by a three judge panel, and on January 31, 1986, he was sentenced to a fifty year term of imprisonment. More than four years later, on July 12, 1990, the petitioner filed an appeal. On May 21, 1991, the Supreme Court affirmed his conviction. See State v. Jarrett, 218 Conn. 766, 591 A.2d 1225 (1991).

The petitioner filed, pro se, his petition for a writ of habeas corpus on February 3, 1995, and then obtained counsel, who amended his petition on June 10, 1996. The habeas hearing occurred on June 14, 1996. The two count petition claimed that (1) trial counsel was ineffective because he was unable to communicate effectively with the petitioner and improperly advised him to not testify at trial, and (2) the four years between the conviction and the time it took the public defender’s office to file the appeal was an unconstitutional delay, which he would not have suffered if he had been represented by private counsel. The habeas court, W. Sullivan, J., denied the petition on June 25, 1996. The court analyzed both of the petitioner’s counts as ineffective assistance of counsel claims. With respect to both claims, the court concluded that the petitioner had failed to meet his burden under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On July 16, 1996, the court granted the petition for certification to appeal. The petitioner’s counsel failed to file a timely appeal. Now, on appeal, the petitioner’s only claim is that the habeas court should have permitted him to introduce evidence in support of his claim of appellate delay.

Although we typically review evidentiary determinations under an abuse of discretion standard, “[w]hen the issue is appellate delay, which invokes the constitutional guaranties of due process and equal protection,” plenary review is appropriate. Gaines v. Manson, 194 Conn. 510, 517, 481 A.2d 1084 (1984). Thus, in the present case our review is plenary.

The petitioner asserts that, during the habeas trial, when his counsel “began to elicit testimony regarding the appellate delay, the commissioner objected on the grounds that the petitioner suffered no prejudice with respect to his appeal, since the appeal was ultimately filed and decided . . . .” The commissioner objected to the attempt of the petitioner’s counsel to offer evidence concerning appellate delay, and the court sustained the objection, finding that there was no prejudice. The petitioner argues that the habeas court, in reaching this conclusion, did not engage in the proper balancing of all of the factors articulated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972): (1) the length of delay; (2) the reason or justification for delay; (3) the petitioner’s assertion of his right; and (4) any prejudice resulting from the delay. Id., 530. Instead, the habeas court dismissed the first three factors and focused solely on the fourth factor: prejudice. Particularly, the petitioner claims that the court made “a decision on the petitioner’s appellate delay claim having considered only one of the four Barker factors before evidence was introduced on all the factors, and then the court precluded that evidence from being introduced.”

The petitioner relies on Gaines v. Manson, supra, 194 Conn. 510, to provide support for his claim that he should have been permitted to offer evidence of appellate delay because the delay itself is prejudicial. In Gaines, seven criminal defendants sought a writ of habeas coipus, alleging that their continued incarceration was illegal because the still pending appeals of their state court convictions had been “unreasonably and unjustifiable delayed . . . .” Id., 512. Gaines and the present case are distinguishable. Here, the petitioner’s direct appeal has been decided and his conviction was affirmed, unlike the situation with the petitioners in Gaines, who were waiting for their direct appeals to be prosecuted to a conclusion.

The commissioner argues that the petitioner’s prejudice argument must fail because the petitioner must make an actual showing of prejudice before being entitled to habeas relief. The commissioner claims that Gaines supports the proposition that the weight placed on the prejudice factor depends on the context of the case. “As a general rule, it may well be appropriate to attach special weight in the Barker . . . matrix to the absence of demonstrated prejudice, particularly when the relief that is sought is dismissal of all outstanding criminal charges. Nonetheless, in the final analysis, the role of prejudice must depend upon the entire context in which the claim for relief is presented.” Id., 524. It is clear from the record that the court understood that the delay had occurred but, following Gaines, afforded this aspect of the Barker factors the appropriate weight because, in fact, the petitioner suffered no prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The [petitioner] and the victim became romantically involved after the victim began babysitting for the [petitioner’s] son. Because of a substantial age disparity between the [petitioner], who was in his thirties, and his teenage victim, the victim’s mother filed a complaint that led to the [petitioner’s] conviction of risk of injury to a child, for which he received a suspended sentence conditioned on his not seeing the victim. Distressed by the efforts to enforce their separation, which the [petitioner] and the victim knowingly tried to circumvent, they entered into a suicide pact. Each of them alluded to their plan of action in conversations with a mutual friend ....
      “On September 6, 1988, in a park in Manchester, the [petitioner] killed the victim stabbing her twice with his knife, and stabbed her once more after her death. Although he thereafter also stabbed himself, his three self-inflicted lacerations proved not to be fatal.” State v. Jarrett, 218 Conn. 766, 767-68, 591 A.2d 1225 (1991).

       In asserting his argument, the petitioner makes two claims. First, he claims that the court failed to balance the four factors set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which our Supreme Court has applied to claims of appellate delay. The petitioner claims that the court focused solely on the prejudice factor and did not consider the other factors. Second, the petitioner claims that the court improperly required a showing that the delay was prejudicial to him. Because the issues are interrelated, we will treat both claims together.

        The transcript reflects the following exchange:
      “[The Respondent’s Counsel]: He isn’t going to receive any relief through this particular claim because he had a full appeal. He isn’t claiming his appeal rights vanished somewhere or his appeal wasn’t proceeded on through neglect or unconcern or perhaps miscommunication. He had a full appeal; he’s not going to be able to show any prejudice to that claim.
      “[The Petitioner’s Counsel]: Only—only—I agree that there are—there is a certain problem with that. The basic claim would ultimately be our ability to come here to habeas corpus relief, which, because we were required to exhaust appellate remedies for matters which appear of record, that that took some five years after the—the trial itself. . . . Again, I’m not saying that he was deprived of appellate rights; it’s perfectly true that that did happen. The question is, how did we get thirteen years after the incident and eleven years after the trial to have only had the one appeal? That’s what we’re here now on. . . .
      “The Court: If his appeal had been overturned, you might have a point, but it wasn’t. His appeal was affirmed according to your amended petition.
      “[The Petitioner’s Counsel]: That’s correct.
      “The Court: So, I don’t care if he took it fifty years after; it was affirmed, it wouldn’t have changed. He wasn’t prejudiced by the lateness of the appeal; he’d still be in jail. He is in jail.”

       The commissioner claims that the petitioner’s claim fails because it is based on a factual premise that is not supported by the record. The commissioner maintains that the “habeas court did not ‘preclude’ or ‘bar’ the petitioner from presenting any evidence he so desired regarding his claim of appellate delay. The record reflects that the petitioner’s habeas counsel asked a number of questions of the petitioner [at trial] regarding his appeal prior to [the commissioner’s] counsel interjecting.” In fact, there are eight pages of transcript from the habeas trial in which the petitioner’s counsel asked the petitioner about his appeal. After this examination, the record shows that the commissioner’s attorney requested an offer of proof on the petitioner’s claim to his appeal rights. Moreover, the record also reflects that the court considered the petitioner’s appellate delay claim further by expressing its skepticism and disagreement regarding the petitioner’s ability to prevail on the claim. On the basis of this, the commissioner argues that there is no merit to the petitioner’s claim that the habeas court “precluded” or “barred” questions related to his appellate delay. In light of the result we reach, we need not decide this issue.


author: BISHOP, J. FLYNN, C. J.,

text:
    STATE OF CONNECTICUT v. STEPHEN J. WILLIAMS
    (AC 26901)
    Flynn, C. J., and Bishop and DiPentima, Js.

      Argued September 24, 2007
    officially released March 11, 2008

      Stephen J. Williams, pro se, the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were James E. Thomas, former state’s attorney, and, on the brief, Adam B. Scott, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Stephen J. Williams, appeals from the judgments of the trial court denying his motions to dismiss and his motion for return of bond. We dismiss the defendant’s first claim as moot. We affirm the judgment of the trial court as to his second claim.

On April 4,2005, in accordance with a plea agreement, the defendant was granted accelerated rehabilitation for a charge of reckless driving in violation of General Statutes § 14-222. By the terms of the agreement, the defendant was given thirty days probation, which was completed on May 4, 2005, and on that date this charge was dismissed. Additionally, as part of the plea agreement, the state entered nolles on the remaining charges of failure to appear and driving while under suspension.

On May 26, 2005, the defendant filed motions to dismiss the charges for driving while under suspension and failure to appear, asserting that, in accordance with the plea agreement, they, too, should have been dismissed on May 4,2005, when the reckless driving charge was dismissed. On May 27, 2005, the court denied both motions. On June 9, 2005, the defendant filed a second motion for return of bond for the $250 cash bond that he had posted himself. The court denied the motion. This appeal followed.

Because mootness implicates this court’s subject matter jurisdiction, we begin by addressing the state’s claim in this regard. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Lucas v. Deutsche Bank National Trust Co., 103 Conn. App. 762, 766, 931 A.2d 378 (2007).

The basis of the state’s mootness claim is its assertion that, by operation of statute, the two charges that were nolled were dismissed thirteen months after the plea agreement. The state argues, as well, that the statute of limitations in this case has run, and, as a result, the defendant is in exactly the same position he would have been in had the court granted his motions to dismiss. We agree with the state.

Our Supreme Court has held that although nolles and dismissals have technically different meanings, they carry the same legal and practical effect. Cislo v. Shelton, 240 Conn. 590, 608, 692 A.2d 1255 (1997). The entry of a nolle followed by the lapse of the statutory period of thirteen months results in the mandatory erasure of the pertinent records pursuant to General Statutes § 54-142a (c). General Statutes § 54-142a (c) uses the term “nolle” in a “context that renders the provisions of § 54-142a (c) the functional equivalent of a dismissal. . . . This construction of § 54-142a (c) is also consistent with much of the general jurisprudence of nolles and dismissals. Although they have some doctrinal and procedural differences ... in some legal respects they are treated as fungible. See, e.g., State v. Gaston, [198 Conn. 435, 440, 503 A.2d 594 (1986)] (nolle and dismissal treated same for purposes of speedy trial analysis); See v. Gosselin, 133 Conn. 158, 160-61, 48 A.2d 560 (1946) (nolle and dismissal treated same for purposes of subsequent action for malicious prosecution).” (Citation omitted.) Cislo v. Shelton, supra, 608-609.

Here, because the nolles were entered on April 4, 2005, and more than thirteen months have elapsed, the erasure statute has expunged any record of the defendant’s arrest. Additionally, the statute of limitations has run, thereby precluding the state from reprosecuting the defendant. The same result would have been obtained had the court dismissed the charges. Accordingly, because there is no practical relief that we can afford the defendant, his claim that the court improperly denied his motions to dismiss is moot.

The defendant’s second claim is that his $250 cash bond posted in connection with the information in the first case charging him with reckless driving should have been returned to him. “The determination of an appropriate pretrial bond is a matter within the sound discretion of the trial court. . . . An appeal therefrom will be sustained only in the event that it appears that the trial court has exercised its discretion in so unreasonable a manner as to constitute an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. McDowell, 241 Conn. 413, 415, 696 A.2d 977 (1997).

The following additional facts are relevant to the defendant’s claim. The defendant failed to appear before the court twice. On the second occasion, the court indicated that the defendant had another failure to appear in another court, that he had failed to appear for trial and that there was a jury in the building for selection for his trial. In denying his motion for return of bond, the court did not make a finding that the defendant’s failure to appear was not wilful, and the defendant did not seek an articulation as to the reasoning of the court’s decision. In light of the foregoing, we cannot conclude that the court abused its discretion in denying the defendant’s motion for return of bond.

The appeal is dismissed as to the denial of the defendant’s motions to dismiss and the judgment in the first case is affirmed.

In this opinion DiPENTIMA, J., concurred.

FLYNN, C. J.,

concurring. I agree with the majority

that the defendant, Stephen J. Williams, cannot prevail on his claim that he was entitled to a dismissal pursuant to General Statutes § 54-56b. I reach that conclusion, however, on grounds different from those relied on by the majority. The record is clear that the defendant made a plea agreement to accept a nolle on the remaining charges, and he did not object to the nolle “at the time it [was] offered” as is required under Practice Book § 39-30. He demanded neither a dismissal nor an immediate trial. Rather, he accepted the plea agreement on the record and specifically acknowledged that these were the terms of the plea agreement. He, therefore, has waived any right to a dismissal of the charges under § 54-56b.

I write separately because our Supreme Court determined in Cislo v. Shelton, 240 Conn. 590, 598, 692 A.2d 1255 (1997), only that a nolle was the equivalent of a dismissal for purposes of triggering provisions of an indemnity statute, General Statutes § 53-39a, requiring that police officers be reimbursed for their attorney’s fees in certain circumstances where criminal charges against them are dismissed or the officers are found not guilty. The case did not involve a defendant’s constitutional right against double jeopardy or his right under § 54-56b to demand a trial or a dismissal, and, therefore, I would not rely on Cislo as persuasive precedent for the present case.

Our Supreme Court made it plain in State v. Herring, 209 Conn. 52, 57-58, 547 A.2d 6 (1988), that “[e]ven if the statute of limitations as to . . . misdemeanors were to expire and the erasure statute become operative to deprive the state of access to records concerning [those] charges so as to render reinitiation of prosecution difficult or improbable, reinitiation of prosecution is not impossible.” The court went on to explain that “[t]he statute of limitations is an affirmative defense, not a jurisdictional bar to prosecution . . . and the erasure statute does not foreclose the utilization of the personal and independent observation of witnesses to initiate a new prosecution.” (Citation omitted.) Id., 58.

The court reasoned that “the effect of the entry of the nolles was only to terminate this particular prosecution without an acquittal and without placing the defendant in jeopardy, [and, therefore] he remains vulnerable to reinstatement of a prosecution against him.” Id., 57. The court did not hold the issue moot, even where the statute of limitations had run on the underlying misdemeanor charges and the erasure statute had become effective. Accordingly, I do not agree with the majority that a nolle and a dismissal carry “the same legal and practical effect.”

       The defendant also asserts that apervasive pattern of judicial misconduct denied him the opportunity for a fair and impartial hearing. The defendant raises this claim for the first time on appeal, and we, therefore, decline to address it. See Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 61, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

       The motions to dismiss were denied by Judge Norko after he had recused himself in this matter. Because we dismiss this claim as moot, we do not reach the issue raised by the defendant on appeal regarding the fact that Judge Norko participated in this matter after recusing himself.

       This court has also dismissed portions of appeals, versus entire cases, as moot. See Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162, 521 A.2d 1065 (1987).

       Although we acknowledge that the statute of limitations is an affirmative defense, not a jurisdictional bar to prosecution; State v. Herring, 209 Conn. 52, 58, 547 A.2d 6 (1988); under the circumstances of this particular case, in which the state has acknowledged that the statute of limitations has run and it is, consequently, barred from reprosecuting the defendant, the nolle is the functional equivalent of a dismissal.

       In his reply brief, the defendant claims that a dismissal would allow him to pursue a claim in the federal courts for unlawful arrest or malicious prosecution, whereas a nolle does not. Because this claim is raised for the first time in his reply brief, we decline to address it. See Grimm v. Grimm, 276 Conn. 377, 393-94 n.19, 886 A.2d 391 (2005) (“[cjlaims ... are unreviewable when raised for the first time in a reply brief’), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       Even if we were to conclude that the defendant’s claim is not moot, because the defendant did not object to the nolles at the time they were entered, and, in fact, the nolles were part of a plea bargain between the defendant and the state, he has waived any claim that the charges should have been dismissed. See General Statutes § 54-56b.

       Practice Book § 39-30 provides: “Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.” (Emphasis added.)