author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. DOUGLAS REID
    (AC 29933)
    Gruendel, Robinson and Borden, Js.

      Argued April 8
    officially released August 24, 2010

      Elizabeth M. Inkster, senior assistant public defender, with whom was Peter G. Billings, deputy assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Marc R. Durso, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Douglas Reid, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b) and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that (1) the trial court improperly permitted expert testimony on an ultimate issue of fact, (2) the evidence adduced at trial was insufficient to sustain his conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project and (3) the court improperly instructed the juiy on the intent element of §§ 21a-277 (a) and 21a-278a (b). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of November 22, 2006, Officers William J. Simpson and Elson Morales of the Bridgeport police department conducted a foot patrol in Marina Village, a federally subsidized housing project. At approximately 4 p.m., they proceeded to the comer of Columbia Street and Johnson Street, a location of frequent narcotic transactions. As the officers entered an adjacent parking lot, they encountered several individuals and decided to conduct a “stop and talk, ” known also as a warrant check. When they approached, the defendant backed away. Despite their instmction that the defendant come back, he resisted. As the other individuals in the parking lot moved forward, the officers witnessed the defendant remove a plastic bag from his pocket, which he tossed to the ground.

Upon recovering the plastic bag, the officers observed that it contained “packaged street level” narcotics. The bag contained ten glassine folds bound by a rubber band. As a result, the officers placed the defendant under arrest and conducted a search incident thereto, which produced four blue glassine folds in his hand and three white glassine folds in his pocket. Field tests performed on samples from the plastic bag recovered from the ground and the three white glassine folds confirmed the presence of narcotics, namely, heroin. At the same time, the four blue glassine folds tested negative. Neither money nor drug paraphernalia were found on the defendant.

The defendant’s criminal prosecution followed. After a trial, the jury found the defendant guilty of possession of narcotics with intent to sell, possession of narcotics with intent to sell within 1500 feet of a public housing project and possession of narcotics. The court rendered judgment accordingly and thereafter sentenced him to a total effective term of twelve years incarceration and five years of special parole. From that judgment, the defendant appeals.

I

The defendant first claims that the court abused its discretion by permitting expert testimony on an ultimate issue of fact. Specifically, he claims that Simpson improperly opined on whether the defendant possessed the narcotics with the intent to sell. We disagree.

The portion of Simpson’s testimony that is challenged on appeal is set forth in the following colloquy:

“[The Prosecutor]: . . . Now, based on your training and experience, everything you’ve gone through and all the arrests you’ve made, when you find somebody that’s in possession of some suspected narcotics that came back positive in the field test, and some suspected narcotics that came back negative in a field test, what is that indicative of?

“[The Witness]: Well, it depends on . . . the quantity that he has on him, the packaging; but usually, if somebody’s [going to] sell bum bags—that’s what you call them, bum bags—it’s usually for selling.
“[The Prosecutor]: And what is a bum bag, if you can just explain that?
“[The Witness]: Well, a bum bag is a misrepresentation ... of a drug, like . . . well, I’ll use crack, for instance. That’s boiled down cocaine. If it’s a misrepresentation, they might use soap, baking soda. Basically, the intent is to sell an individual who thinks it’s narcotics; it’s really not narcotics ....
“[The Prosecutor]: Now . . . when you’ve made arrests of sellers before, what is the typical quantity in packaging . . . that’s usually seized?
“[The Witness]: It varies. It varies off of, I mean, his actions. Just, basically, the quantity of—depending on what the dmg is, say five or more, I mean, depending on where they’re packaged . . . how they’re held. I mean, there’s a lot that goes into it. . . .
“[The Prosecutor]: Well, let me ask you this. When you . . . arrest a buyer or a user . . . suspected user . . . how much narcotics are usually found on them?
“[The Witness]: Probably a slab [which] is another street term for crack or cocaine; probably one or two depending on how much money they had.
“[The Prosecutor]: So, once again ... if you . . . had an arrest of somebody who had narcotics that are both positive and negative, and were packaged bundled in five or more as you’ve just testified to, what would that be indicative to? Would that be indicative of a seller or user?
“[Defense Counsel]: Objection, Your Honor.
“The Court: All right.
“[Defense Counsel]: That’s speculation, and it goes to the ultimate issue.
“The Court: All right. You claim it?
“[The Prosecutor]: Yes, I do.
“The Court: Okay, just briefly.
“[The Prosecutor]: Your Honor, [under State v. Nelson, 17 Conn. App. 556, 555 A.2d 426 (1989), and State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988), it] does not go to the ultimate issue. The officer ... is not testifying as to the defendant’s intent or the defendant’s intent in this case. He’s testifying, basically, on his training and experience in the arrest that he made, and those cases are directly on point.
“The Court: Anything further?
“[Defense Counsel]: No, Your Honor.
“The Court: All right, overruled. . . .
“[The Prosecutor]: Once again, someone who is arrested by yourself in the past that’s found with narcotics that tested positive, suspected narcotics that tested negative bundled in five or more, as you testified, what is that indicative [of] to you?
“[The Witness]: An intent to sell, like—the statute is with intent to sell.
“[The Prosecutor]: Okay.
“[The Witness]: So, someone who’s trying to sell narcotics.”

The issue before us is whether the court improperly admitted expert testimony on the ultimate question for the jury of whether the defendant possessed the narcotics with the intent to sell. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 264, 856 A.2d 917 (2004). That discretion extends to “expert testimony concerning the sale of illicit drugs.” State v. Vilalastra, supra, 207 Conn. 45. Under Connecticut law, an expert witness “may testify that certain behavior by a defendant or his possession of particular items is conduct similar to that engaged in by the typical drug dealer.” Id. At the same time, the state is forbidden from soliciting an expert’s opinion on whether a particular defendant “possessed illegal drugs for sale or consumption.” Id.; see also State v. Campbell, 225 Conn. 650, 656-57, 626 A.2d 287 (1993) (police detective could testify about patterns common to drug sales, but it was improper for him “to testify to his opinion on the ultimate fact of whether the defendant possessed the narcotics with the intent to sell”).

In the present case, Simpson testified in response to a series of hypothetical questions based on his training and experience. The questions concerned prior arrests made by Simpson and referred to “somebody” or “someone”; they never referenced the defendant. See State v. Abreu, 34 Conn. App. 629, 633-34, 643 A.2d 871, cert. denied, 230 Conn. 915, 645 A.2d 1019 (1994). Similarly, Simpson’s answers did not go beyond the scope of the questions, as evinced by his testimony that a hypothetical question indicated “someone who’s trying to sell narcotics.” (Emphasis added.) Simpson also testified as to the quantity of narcotics that a suspect may possess and the manner in which the narcotics may be packaged, which plainly is permissible. See State v. Vilalastra, supra, 207 Conn. 42; State v. Francis, 90 Conn. App. 676, 682, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005); State v. Ogrinc, 29 Conn. App. 694, 699, 617 A.2d 924 (1992). His testimony is a quintessential example of appropriate testimony on the custom and practice of narcotics traffickers generally. State v. Vilalastra, supra, 45; State v. Nelson, supra, 17 Conn. App. 566. Simpson did not opine as to whether the narcotics recovered were possessed by the defendant for either personal use and consumption or with the intent to sell or dispense; cf. State v. Vilalastra, supra, 43; or whether the conduct of the defendant fit the custom and practice he described. See State v. Walton, 227 Conn. 32, 61, 630 A.2d 990 (1993). Rather, it properly was left to the jury to determine whether the actions of the defendant fit that description.

We conclude that the challenged testimony does not include an opinion on the ultimate fact of whether the defendant possessed the narcotics with the intent to sell. The court therefore did not abuse its discretion in admitting that testimony.

n

The defendant next claims that the evidence adduced at trial was insufficient to sustain his conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project. The defendant does not allege that the evidence was insufficient either to sustain his conviction of possession of narcotics with intent to sell in violation of § 21a-277 (a) or to establish that Marina Village is a public housing project. Rather, his precise claim is that there was insufficient evidence from which the jury could have concluded beyond a reasonable doubt that he possessed the specific intent to sell narcotics at a particular location, which the defendant agrees is within 1500 feet of Marina Village. We are not persuaded.

“[T]he [d]ue [pjrocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The standard of review for a sufficiency of the evidence claim employs a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support [its] verdict.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).

It is axiomatic that “the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, it does not dimmish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury] would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006). With that standard in mind, we turn to the defendant’s claim.

Section 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising . . . a public housing project . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 2 la-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project .... For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.” Our Supreme Court has held that a conviction under § 21a-278a (b) requires, as an element of the offense, an intent to sell or dispense narcotics at a location that is geographically within 1500 feet of a public housing project. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995). The state need not prove that a defendant possessed knowledge that the location at issue was within that zone. Id.

It is well settled that “[t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [Wjhether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Downey, 45 Conn. App. 148, 154, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997). In addition, “[i]ntent may ... be inferred from the surrounding circumstances [and] the events leading up to and immediately following [an] incident.” (Internal quotation marks omitted.) State v. Saez, 115 Conn. App. 295, 303, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009).

In the present case, Simpson and Morales encountered the defendant in a parking lot adjacent to the intersection of Columbia Street and Johnson Street. The jury was presented with evidence that this location was an “open air drug market” where drug transactions frequently transpired. Simpson testified that the location was a “hot spot” for drug dealing because “it’s kind of like a freeway. People . . . are able to drive in, meet up there, and they have . . . three routes of escape from there. . . . [T]hey can go up Johnson [Street], they go down Project [Street] and then go back down . . . that other street leading up to it. . . . [T]hat parking lot [where the officers observed the defendant] is one of the main problems that we have in Marina Village. ” Morales similarly testified that Marina Village was a “high crime area” and a center of the “drug trade . . . heroin, specifically. There are multiple dealers of heroin in the Marina Village.” Evidence of the defendant’s presence at such a location suggests an intent to sell or dispense narcotics at a location that is geographically within 1500 feet of a public housing project. See State v. Francis, supra, 90 Conn. App. 682 (noting evidence that defendant was observed in “area known to be a high trafficking area for narcotics”); State v. Jeffreys, 78 Conn. App. 659, 676, 828 A.2d 659 (“the defendant was observed loitering in an area known for commercial drug activity”), cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); State v. Ogrinc, supra, 29 Conn. App. 699 (“[e]vidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell”).

Notably, the defendant does not dispute that he was in possession of narcotics at that location. See State v. Jeffreys, supra, 78 Conn. App. 676. The jury also was presented with evidence regarding the quantity of narcotics found in the defendant’s possession and the manner in which they were packaged, both of which are probative of his intent to sell. See State v. Ogrinc, supra, 29 Conn. App. 699. The officers witnessed the defendant attempt to discard a plastic bag containing ten glassine folds bound by a rubber band and found four blue glassine folds in his hand and three white glassine folds in his pocket. At trial, Simpson offered his expert opinion that a narcotics user usually will be found with only one or two folds of narcotics on his person. See State v. Wright, 47 Conn. App. 559, 566, 707 A.2d 295 (evidence that “the most common purchase for users of drugs is only one or two folds, that it is not common for a user to buy as many as six folds” indicated intent to sell), cert. denied, 244 Conn. 917, 714 A.2d 8 (1998). Similarly, Morales testified on the basis of his training and experience that the quantity of narcotics found and the packaging thereof was indicative of whether the possessor was a seller or user of narcotics. Morales explained that sellers usually package narcotics “in a bundle, ten folds apiece in a rubber band,” noting that sellers usually possess “more than ten folds.” Morales further testified that buyers generally possess only one or two folds that are not “rubber-banded and put together.”

In addition, the jury was presented with evidence that the four blue glassine folds found in the defendant’s hand tested negative for narcotics. In his expert testimony, Simpson detailed the usage by sellers of “bum bags.” See, e.g., United States v. Derr, 990 F.2d 1330, 1332 (D.C. Cir. 1993) (pouches containing fake narcotics commonly known as bum bags); State v. Johnson, 21 Conn. App. 291, 295, 573 A.2d 1218 (1990) (describing bum bags as “phony drugs”). Simpson testified that on numerous occasions he had made arrests in which some of the suspected narcotics recovered tested positive for narcotics and some tested negative. He explained that such instances often involve “bum bags,” which he defined as “a misrepresentation ... of a dmg, like . . . well, I’ll use crack, for instance. That’s boiled down cocaine. If it’s a misrepresentation, they might use soap, baking soda. Basically, the intent is to sell an individual who thinks it’s narcotics; it’s really not narcotics . . . .” On the basis of his training and experience, Simpson offered his expert opinion that the presence of bum bags indicates an intent to sell. Morales likewise testified that he had been involved in numerous arrests in which one portion of the suspected narcotics tested positive for narcotics and the other tested negative. Morales opined that a suspect in such an instance likely is “a person that’s definitely trying to bum someone. . . , [I]f it’s a product that’s not a narcotic . . . they’re not [going to] obviously take it as a user. They would want to try to make money off of it and bum some buyers.” That evidence supports the inference that the defendant intended to sell narcotics in the Marina Village parking lot.

In addition, evidence was before the jury that no chug paraphernalia was found on the defendant. Morales testified that dhug users usually keep chug paraphernalia on their persons and that heroin users tend to keep syringes on their person. “If a defendant has no drug paraphernalia, it is reasonable to infer that he did not intend to use the drugs himself and that also may be factored into the jury’s determination . . . .” State v. Wright, supra, 47 Conn. App. 566; see also State v. Jeffreys, supra, 78 Conn. App. 676. Morales testified that the defendant “had no paraphernalia on him.”

Also relevant is the defendant’s behavior prior to his arrest. The officers first observed the defendant among a group of individuals at a location that was a hot spot for narcotics trafficking. The jury heard testimony from Morales that, as the officers approached the group, the defendant “started backing away, that’s what [drew the attention of my partner and I, as we] started walking toward him, he backed off away from us.” Simpson testified that when they instructed the defendant to come back, “everybody [else] moved forward [and] the defendant was the only one who was backing up . . . .” The officers then witnessed the defendant toss to the ground the plastic bag containing ten glassine folds bound by a rubber band. Intent can be inferred from conduct; see State v. Downey, supra, 45 Conn. App. 154; and the jury properly could consider the aforementioned conduct in determining whether the defendant intended to sell narcotics in the Marina Village parking lot. As this court stated in State v. Ogrinc, supra, 29 Conn. App. 700, “the defendant’s conduct was incriminating. When the defendant observed the police cruiser he warned other drug dealers of its presence, he immediately turned away from the cruiser, and he attempted to conceal the heroin he held in his left hand before tossing it underneath the car.” The jury in this case similarly could have found the defendant’s conduct in the parking lot incriminating.

Finally, we note that it is undisputed that the defendant was at the geographical location at issue for an extended period of time on the day of his arrest. As part of his defense, the defendant presented the testimony of Willie Everett, a resident of Marina Village. Everett testified that he was working on a vehicle in the parking lot adjacent to the intersection of Columbia Street and Johnson Street on the afternoon of November 22, 2006. On direct examination, Everett testified that the defendant had been assisting him at that location that day, stating that “[w]e had been there a while that day. We had been out there for a couple hours.” As a result, the present case is distinguishable from the recent decision of this court in State v. Lewis, 113 Conn. App. 731, 967 A.2d 618, cert. granted, 292 Conn. 906, 973 A.2d 105 (2009). In Lewis, the majority recognized that “there was evidence indicating an intent to sell.” Id., 748. It continued: “The evidence presented in this case, however, did not raise a permissible inference of an intent to sell at the specific location where the defendant was arrested. When stopped by the police, the defendant was on his bicycle in the neighborhood in which he lived. The police did not observe him engage in any activity consistent with immediate drug sales but, rather, stopped him because he resembled the description of a robbery suspect. There was no evidence that the defendant was in the location at issue for any length of time sufficient to support an inference that he was doing more than passing through. The police officers who were dispatched to the area in response to a robbery complaint apprehended the defendant and [a companion] virtually immediately upon seeing him. Although there is evidence, such as the quantity of drugs found on his person and the manner of their packaging, that supports an inference of an intent to sell, the record is devoid of any direct or circumstantial evidence from which the inference of intent to sell at the place of apprehension can permissibly be drawn.” Id., 748-49.

By contrast, the jury in the present case was presented with undisputed evidence, which the defendant offered at trial, establishing his presence at the location in question for an extended period of time. On that evidence, the jury could not reasonably conclude that the defendant was merely passing through the Marina Village parking lot but, rather, was at that location for hours. Furthermore, whereas the officers in Lewis “did not observe [the defendant] engage in any activity consistent with immediate drug sales” and “apprehended the defendant . . . virtually immediately upon seeing him”; id., 748; the officers in the present case apprehended the defendant only after witnessing him back away and toss a plastic bag to the ground that contained packaged narcotics at a location known to be a hot spot for narcotics trafficking.

Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the cumulative force of the evidence established the defendant’s intent to sell narcotics at the Marina Village parking lot beyond a reasonable doubt. Accordingly, the defendant’s claim of evidential insufficiency fails.

Ill

The defendant also contends that the court improperly instructed the jury on the intent element of §§ 21a-277 (a) and 21a-278a (b), thereby diluting the standard of proof in violation of his right to due process under the federal and state constitutions. The defendant did not 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 review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Peeler, 271 Conn. 338, 369 n.29, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845,126 S. Ct. 94,163 L. Ed. 2d 110 (2005). On its merits, the claim fails to satisfy Golding's third prong.

In reviewing claims of instructional impropriety, we are mindful that “[t]he principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [the jury] might find to be established .... When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions . . . under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).

Both possession of narcotics with intent to sell in violation of § 2 la-277 (a) and possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b) are specific intent crimes. See State v. Denby, supra, 235 Conn. 482; State v. Lewis, supra, 113 Conn. App. 737. The defendant maintains that although the court initially charged the jury on both specific and general intent, the court failed to instruct the jury as to the requisite specific intent with respect to the charged offenses, namely, the “ ‘to cause such result’ ” element of §§ 21a-277 (a) and 21a-278a (b). The state responds that the charge, read as a whole, properly instructed the jury on that element. We agree with the state.

In its charge to the jury, the court initially instructed the jury on intent as follows: “Intent relates to the condition of mind of the person who commits the act. It relates to that person’s purpose in doing an act. Our statutes provide that a person acts intentionally with respect to a result described by the statute defining an offense when his conscious objective is to cause such result. A person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct.” Later in its charge, the court instructed the jury on the intent element of §§ 21a-277 (a) and 21a-278a (b), stating in relevant part that “[t]he final element that the state must prove is that the defendant possessed the narcotic substance with intent to sell .... A person acts intentionally with respect to conduct described by a statute defining a crime when his conscious objective is to engage in such conduct. Intent is a conscious purpose to accomplish some objective. It is not necessary that any sale actually occurred. It is only necessary that a defendant intended that a sale would occur. In this regard, you should recall my prior charge on the meaning of intent.”

We agree with the defendant that the court’s isolated instruction that “[a] person acts intentionally with respect to conduct described by a statute defining a crime when his conscious objective is to engage in such conduct” was inappropriate in the context of §§ 21a-277 (a) and 21a-278a (b). At the same time, we review a challenged jury charge not in isolation, but in its entirety. State v. Johnson, 286 Conn. 427, 453, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). As this court recently noted, “the giving of an overinclusive instruction, even more than one time during the course of a charge, is not dispositive of the issue of whether the instruction deprived the defendant of a fair trial; a reviewing court must carefully evaluate the instructions as a whole to gauge their likely effect on the jury in guiding it to a proper verdict in accordance with the law.” State v. Nance, 119 Conn. App. 392, 412, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010).

Earlier in its instructions to the jury, the court explained that certain offenses with which the defendant was charged concerned his intent to sell. Immediately following the aforementioned misstatement, the court instructed the jury that “[ijntent is a conscious purpose to accomplish some objective. It is not necessary that any sale actually occurred. It is only necessary that a defendant intended that a sale would occur.” That instruction properly conveyed to the jury the specific intent element of §§ 21a-277 (a) and 21a-278a (b). Contra State v. Lewis, supra, 113 Conn. App. 738 (court instructed on general intent to “engage in such conduct” but “did not instruct the jury on specific intent” [internal quotation marks omitted]). In addition, the court’s instruction on specific intent was augmented by the subsequent incorporation by reference of its “prior charge on the meaning of intent,” which clarified the distinction between general and specific intent.

Viewed as a whole, the court’s charge instructed the jury that the state was required to prove beyond a reasonable doubt that the defendant acted with the intent to sell narcotics on the afternoon of November 22,2006. Because we cannot say that it is reasonably possible that the jury was misled, the defendant’s claim fails to satisfy Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, counsel for the defendant distinctly raised the claim he now pursues on appeal.

       The court qualified Simpson as an expert, a determination with which the defendant does not quarrel on appeal.

       As the defendant provides no independent state constitutional analysis, we confine our review to his claim under the federal constitution. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998).

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


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    LEONARD PAOLETTA v. ANCHOR REEF CLUB AT BRANFORD, LLC, ET AL.
    (AC 30456)
    Harper, Alvord and Borden, Js.

      Argued January 14
    officially released August 24, 2010

      Daniel Shepro, for the appellants (third party defendant Nicholas Owen et al.).

      Jessica A. Slippen, with whom, on the brief, was Edward P. McCreery III, for the appellees (defendants, third party plaintiffs Anchor Reef Club at Branford, LLC, et al.).
   Opinion

HARPER, J.

The defendants Nicholas Owen and Iron Works Development of Branford, LLC (Iron Works), appeal from the judgment of the trial court rendered in favor of the plaintiffs Anchor Reef Holdings, LLC (Anchor Reef Holdings), and Anchor Reef Club at Bran-ford, LLC (Anchor Reef Club). In their statement of issues, the defendants claim, inter alia, that (1) the court’s interpretation of a stipulated settlement agreement entered into by the parties was incorrect, (2) the court improperly failed to find that the defendants complied with the stipulated settlement agreement, (3) the court improperly determined that the defendants were not owed payments pursuant to the stipulated settlement agreement, and (4) the court improperly determined that the defendants were responsible for paying legal fees and costs incurred by the plaintiffs in defending other actions. The plaintiffs, however, argue that this court should decline to review any of the defendants’ claims on the ground that they are briefed inadequately. We agree with the plaintiffs. The defendants’ brief is wholly inadequate, and we decline to review any of their claims. Accordingly, we affirm the judgment of the trial court.

The case before us has followed a long and tangled procedural path to this court. Because we are disposing of the defendants’ appeal on reviewability grounds, we will provide only a very brief factual background and procedural history. Prior to the present litigation, Anchor Reef Holdings and Iron Works, of which Nicholas Owen was the sole member, jointly engaged in a venture, as members of Anchor Reef Club to develop certain real property into a condominium and office complex (Anchor Reef project). Disputes related to the project arose. Those disputes resulted in litigation that was resolved pursuant to a stipulated settlement agreement entered into on November 15,2004, between Iron Works, Owen, Anchor Reef Holdings, Anchor Reef Club and its trustee, Ronald Peikes.

On February 9, 2006, a creditor of Iron Works, Leonard Paoletta, initiated an action against, inter alia, Anchor Reef Holdings, Iron Works and Anchor Reef Club. On June 13, 2006, Anchor Reef Holdings and Anchor Reef Club filed an amended answer, special defenses, a three count counterclaim, cross claims and third party complaint for declaratory relief. Anchor Reef Club and Anchor Reef Holdings made cross claims against Owen and Iron Works as part of their June 13, 2006 court filing, thereby becoming plaintiffs in relation to defendants Owen and Iron Works. The plaintiffs alleged, inter alia, that the defendants had violated the stipulated settlement agreement and also that the defendants were required to indemnify them against certain claims of third parties. Following a court trial, the court rendered judgment in favor of the plaintiffs. The defendants appealed from the judgment of the court.

The plaintiffs claim that the defendants’ brief is wholly inadequate. We agree. For this reason, we decline to review the defendants’ claims.

“ [ W] e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 634-35, 882 A.2d 98, cert. denied, 276 Conn. 924, 295, 888 A.2d 92 (2005).

We begin by noting that the defendants have exhibited blatant disregard for our rules of appellate procedure governing the format and substance of appellate briefs. Practice Book § 67-4 (a) provides that an appellant’s brief shall contain “[a] concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed . . . .” (Emphasis added.) Although the defendants, who are the appellants in the present appeal, have provided a statement of issues, they have failed to provide any references to pages of the brief on which the issues are discussed. Further complicating the defendants’ deficiency in this regard, their argument is divided into sections that do not correspond, in any manner, to the issues listed in their statement of issues. Despite our careful review of the brief, we are unable to discern any coherent analysis related to any of the claims listed in the statement of issues.

Practice Book § 67-4 (d) provides that “argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.” (Emphasis added.) The defendants, however, have failed to provide the required standards of review. The defendants set forth a separate section of their brief entitled “Standard of Review” in which they claim that contract interpretation is a matter of law and thereby subject to plenary review and, without citing to any case law for support, that “[ijntent is a question of law which this court can determine de novo.” This section is followed by another section entitled “Argument” in which the defendants essentially repeat several findings of the trial court without providing any legal analysis. The next section, entitled “Discussion of Issues,” has six separate subsections, none of which are accompanied by a suggested standard of review.

The defendants’ procedural lapses might be forgivable if we were able to determine their substantive claims and the underlying legal analysis. The defendants, however, only cite to two cases in their argument and discussion of issues sections of their brief. The few legal principles that the defendants cite are not accompanied by sufficient analysis with regard to the applicability of the cited authority. See Taylor v. Mucci, 288 Conn. 379, 383 n.4, 952 A.2d 776 (2008) (declining to review claims when party cited only one case and provided insufficient analysis). As the plaintiffs note, the defendants’ brief is replete with bare assertions and statements of legal principles that are unaccompanied by any citation whatsoever. “[T]his court is not an advocate for any party . . . .” State v. Tocco, 120 Conn. App. 768, 786-87, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). To the extent that we are even able to discern what claims the defendants raise, we conclude that they are insufficiently briefed in toto.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because this appeal only involves the cross claims, for simplicity our use of the term “plaintiffs” in this opinion refers to the plaintiffs on the cross claim, Anchor Reef Club and Anchor Reef Holdings. Our use of the term “defendants” refers to the defendants on the cross claim, Owen and Iron Works.

       Paoletta, the named plaintiff, is not a party to this appeal. Paoletta also named Ronald Peikes as a defendant. The complaint against Peikes, however, was subsequently withdrawn.

       Anchor Reef Club and Anchor Reef Holdings filed a motion for summary judgment on February 28, 2007, as to Paoletta’s complaint against them. The court granted their motion for summary judgment on January 11, 2008.


text:
    MAX’S PLACE, LLC v. DJS REALTY, LLC
    (AC 31002)
    Bishop, Gruendel and Harper, Js.
    Argued April 5
    officially released August 24, 2010

      James A. Lenes, for the appellant (defendant DJS Realty, LLC of Delaware).

      Mark E. Block, with whom, on the brief, was Gary W. Huebner, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant DJS Realty, LLC of Delaware, appeals from the judgment of the trial court rendered in favor of the plaintiff, Max’s Place, LLC. On appeal, the defendant claims that the court improperly found the restrictive covenant at issue to be null and void. We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the defendant’s appeal. The plaintiff owns eleven parcels of property located at the intersection of Route 1 and Spencer Plains Road in Old Saybrook. One particular parcel, known as 16 Spencer Plains Road, is subject to the following restrictive covenant, which was created by the defendant: “Premises are to be conveyed subject to a restrictive covenant that will run with the land and be binding on Grantee, its successors and assigns and inure to the benefit of Grantor, its successors and assigns, to wit: ‘Said Premises shall not be used either by itself, or in conjunction with any other property, for the operation of a grocery store, supermarket or other business selling food for off-premises consumption, nor shall such Premises be used in support, including, but not limited to parking or utilities, of such use on any other property.’ ” The plaintiff seeks to develop a grocery store anchored shopping center on its collective property.

On August 13, 2007, the plaintiff filed an amended complaint in which it sought a declaratory judgment against the defendant that 16 Spencer Plains Road is not subject to the restrictive covenant. It also requested that the court quiet title as to the property. In its memorandum of decision, filed April 2, 2009, the court rendered judgment in favor of the plaintiff, finding that the covenant was null and void. Specifically, the court determined that it did not fall within the three recognized classes of restrictive covenants. See Stamford v. Vuono, 108 Conn. 359, 364, 143 A. 245 (1928) (“For our present purposes restrictive covenants of this character may be divided into three general classes: First, when there are mutual covenants in deeds exchanged between owners of adjoining lands; second, when under a general development scheme the owner of property divides it up into building lots to be sold under deeds containing uniform restrictions, and third, where a grantor exacts covenants from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains.”). The court also found that the covenant constituted an unreasonable restraint of trade. See Mattis v. Lally, 138 Conn. 51, 54, 82 A.2d 155 (1951) (“The test of [the] validity [of the covenant] is the reasonableness of the restraint it imposes. . . . To meet this test successfully, the restraint must be limited in its operation with respect to time and place and afford no more than a fair and just protection to the interests of the party in whose favor it is to operate, without unduly interfering with the public interest.” [Citations omitted.]). From that judgment, the defendant appeals.

On appeal, the defendant claims that the court improperly found that the restrictive covenant is null and void. First, the defendant challenges the court’s finding that the covenant is ambiguous as to whom it is to benefit. Second, the defendant challenges the court’s finding that the covenant did not fall within the third class of restrictive covenants described above. Specifically, relying on Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999) (en banc), the defendant contends that it is unnecessary for a grantor subject to a restrictive covenant to own property adjoining or adjacent to property for that covenant to be valid. In Bolán, our Supreme Court abandoned the unity of title doctrine for easements, which provided that “[n]o right of way appurtenant can be created without a dominant as well as a servient estate. . . . The way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” (Internal quotation marks omitted.) Id., 143. The defendant asserts that although Bolán concerns easements, we should extend its application to restrictive covenants. The defendant further asserts that doing so would cause the covenant in the present case to fall within the third class of restrictive covenants. See Stamford v. Vuono, supra, 108 Conn. 364 (“covenants [executed by a grantor] from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains”). We are not persuaded.

At the outset, we set forth the applicable standard of review. “[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences. . . .

“The meaning and effect of the [restrictive covenant] [is] to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” (Internal quotation marks omitted.) DeMorais v. Wisniowski, 81 Conn. App. 595, 608-609, 841 A.2d 226, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004).

“The controlling fact, when discovered, is the expressed intent. Intent unexpressed will be unavailing. In the discovery of the expressed intent there are certain accepted principles of construction to be observed. One is, that the words used are to be taken in their ordinary and popular sense, unless they have acquired a peculiar or special meaning in the particular relation in which they appear, or in respect to the particular subject-matter, or unless it appears from the context that the parties intended to use them in a different sense. . . . Another is, that if the language of a restrictive covenant, when read in the light which the context and surrounding circumstances throw upon it, remains of doubtful meaning, it will be construed against rather than in favor of the covenant. . . . Such covenants being in derogation of the common-law right to use land for all lawful purposes that go with title and possession, they are not to be extended by implication.” (Citations omitted.) Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 295-96, 82 A. 561 (1912).

We first consider the defendant’s claim that the court improperly found that the covenant was ambiguous as to whom it was to benefit. The court noted that the covenant was ambiguous as to whom it was to benefit when considering both the extension of Bolán and whether the covenant constituted an unreasonable restraint of trade. Regarding restraint of trade, the court stated: “With this analysis of time and space limitations in mind, there remains the question of whether the restriction affords to the defendant more than a fair protection of its interests or unduly interferes with the interest of the public. ... [A] formidable problem exists because there is no clear beneficiary of the restrictive covenant.” Regarding the extension of Bolán, the court stated: “Nevertheless, even if this court assumes that the reasoning oí Bolán extends to restrictive covenants, it would not apply to the restriction in this case because the deed and surrounding circumstances are so ambiguous as to whom the restriction is to benefit.” Although the defendant in oral argument before us challenged the court’s finding that the covenant was ambiguous as to whom it was to benefit, it is unclear whether the defendant had in mind the court’s finding with regard to the extension of Bolán or restraint of trade. If the defendant was challenging the court’s finding with respect to restraint of trade, we note that the defendant raised this claim for the first time at oral argument. “Appellate courts generally do not consider claims raised for the first time at oral argument.” State v. Marcelino S., 118 Conn. App. 589, 592 n.4, 984 A.2d 1148 (2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010). If the defendant was challenging the court’s finding with respect to the extension of Bolán, which the defendant also challenges in its brief, we do not address that contention as a result of our conclusion that Bolán does not extend to restrictive covenants, discussion of which follows.

We next consider the defendant’s challenge to the court’s finding that the covenant did not fall within the third class of restrictive covenants. The defendant asks us to extend the application of Bolán from easements to restrictive covenants so that in the latter, the grantor need not own property adjoining or adjacent to property subject to a restrictive covenant for that covenant to be valid. According to the defendant, extending Bolán to restrictive covenants would cause the covenant in the present case to fall within the third class of restrictive covenants. We conclude that the defendant’s request instead implicitly asks us to overrule Stamford v. Vuono, supra, 108 Conn. 359, in which our Supreme Court recognized three classes of restrictive covenants. See id., 364. Specifically, extending Bolán as the defendant requests would essentially eliminate the third class of restrictive covenants (“covenants [executed by a grantor] from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains”; id.). “As an intermediate appellate court, we must follow the precedent of our Supreme Court along the path which our considered reading of that precedent lays out for us.” Burton v. Planning Commission, 13 Conn. App. 400, 409, 536 A.2d 995 (1988), aff'd, 209 Conn. 609, 553 A.2d 161 (1989). In light of Stamford and its progeny, we reject the defendant’s request.

Additionally, the court stated that the covenant did not fall within the third class because “[without the retention of any adjoining land by the defendant there can be no presumption that the intent of the covenant was to benefit any adjoining land.” We agree with the court’s assessment. Although the defendant contends that there is no evidence that it did not own property adjoining or adjacent to 16 Spencer Plains Road, we conclude that, on the basis of its assertion that Bolán should extend to restrictive covenants and on its statement in its brief that “[t]he defendant’s possible ownership of property adjacent to [16 Spencer Plains Road] makes the covenant presumptively enforceable”; (emphasis added); the defendant has conceded that it owns no such property. Accordingly, we further conclude that the covenant was not executed by a grantor from his grantee presumptively or actually for the benefit and protection of his adjoining land that he retains, and, as such, does not fall within the third class of restrictive covenants.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff, Max’s Place, LLC, cited in DJS Realty, LLC of Delaware after commencing the action and thereafter withdrew the action as against the defendant DJS Realty, LLC. We therefore refer in this opinion to DJS Realty, LLC of Delaware as the defendant.

       The restriction first appeared in the deed conveying 16 Spencer Plains Road from the defendant to Tiffany Benson, Inc. Tiffany Benson, Inc., subsequently conveyed 16 Spencer Plains Road to Sterling City Properties, LLC. The plaintiff thereafter acquired 16 Spencer Plains Road from Sterling City Properties, LLC.

       The defendant does not contend that the court improperly determined that the covenant does not fall within either of the first two categories of restrictive covenants. See Stamford v. Vuono, supra, 108 Conn. 364.

       This court has followed the three classes of restrictive covenants recognized in Stamford v. Vuono, supra, 108 Conn. 359. See Shippan Point Assn., Inc. v. McManus, 34 Conn. App. 209, 212-13, 641 A.2d 144, cert, denied, 229 Conn. 923, 642 A.2d 1215 (1994); Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert, denied, 211 Conn. 806, 559 A.2d 1140 (1989).

       On appeal, the defendant also challenges the admission into evidence of a certain deposition transcript. Because we conclude that the covenant is null and void without relying on that deposition transcript, we do not address this issue.


author: ALVORD, J.

text:
    418 MEADOW STREET ASSOCIATES, LLC v. CLEAN AIR PARTNERS, LLC, ET AL.
    (AC 30719)
    DiPentima, C. X, and Alvord and Foti, Js.

      Argued May 18
    officially released August 24, 2010

      Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellant (plaintiff).

      David R. Gronbach, with whom, on the brief, were Timothy C. Moynahan and Joseph Tramuta, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, 418 Meadow Street Associates, LLC, appeals from the judgment of the trial court rendered in favor of the defendants, Clean Air Partners, LLC, and Clean Air Group, Inc. On appeal, the plaintiff argues that the court improperly found that it lacked standing to maintain this action under the plaintiffs operating agreement and General Statutes § 34-187. We agree with the court’s finding that the plaintiff lacked standing. Because the form of the judgment is improper, we set aside the judgment of the trial court and remand the case with direction to render judgment dismissing the action.

The record reveals the following facts and procedural history. Michael Weinshel, Mark Wynnick and Barbara Levine are joint owners of the plaintiff, a limited liability company. Weinshel and Wynnick collectively own 50 percent of the company, and Barbara Levine owns the remaining 50 percent. Weinshel and Wynnick filed this action on behalf of the plaintiff to enforce a lease agreement against the defendant. They were not given permission from Levine and, in fact, she expressly disapproved of the legal action. The lease in dispute governed the defendant’s occupation of office space in the plaintiffs commercial building located at 418 Meadow Street in Fairfield. Levine has never held any proprietary interest in the defendant, although Steven Levine, her husband, owns 20 percent of the defendant.

The defendant admitted that there was a verbal lease agreement between the parties and that it occupied the premises, but it denied the remaining allegations. Additionally, the defendant pleaded by way of a special defense that the plaintiff did not have standing to pursue the action because Weinshel and Wynnick failed to secure the appropriate corporate authorization. The court reserved decision on the issue of standing until the conclusion of trial and allowed the parties to submit posttrial briefs arguing the special defense.

In its posttrial brief, the defendant argued that Weinshel and Wynnick lacked authority to bring suit on behalf of the plaintiff without Barbara Levine’s approval, pursuant to the plaintiffs operating agreement. The plaintiff did not dispute that the operating agreement was controlling or that a majority vote was required to bring suit pursuant to the agreement and § 34-187. Instead, the plaintiff argued that § 34-187 (b) controls and claimed that Barbara Levine had an adverse interest in the outcome of the action under this exception because of another pending action in which Weinshel and Wynnick filed a multicount counterclaim alleging mismanagement by her and her husband. As a result, the plaintiff claimed that it does have standing because Barbara Levine properly was excluded from the vote. The defendant acknowledged the statutory exception to the requirement for a majority vote under § 34-187 (b) but argued that there was no evidence that Barbara Levine had sufficient adverse interest to warrant her exclusion from the decision to sue, as she had never had any proprietary or financial interest in the defendant.

The court determined that the plaintiff lacked standing. It concluded that (1) in light of both § 34-187 and the operating agreement, the action brought on behalf of the plaintiff was required to have been authorized by a vote of a majority in interest of the members; (2) the majority vote requirement was subject only to the exception that a voting member would be excluded if that individual had an adverse interest in the outcome of the action pursuant to § 34-187 (b); and (3) the plaintiff lacked standing for want of authority to bring the action because Barbara Levine had no such adverse interest and had not authorized the action.

On appeal, the plaintiff argues that Weinshel and Wynnick properly were authorized to bring the action on the plaintiffs behalf. As we previously indicated, neither party argued at trial or on appeal that anything less than a majority vote was required for authorization to sue. There is no dispute that Barbara Levine was not a party to the decision to bring suit. Therefore, the sole issue on appeal is whether Barbara Levine had an adverse interest in the outcome of the action and thereby met the statutory exception set out in § 34-187 (b). We agree with the court that she did not have the requisite adverse interest and, as a consequence, the plaintiff lacked standing. However, because the form of judgment is improper, we set aside the judgment of the court and remand the case with direction to render judgment dismissing the action for lack of subject matter jurisdiction.

Standing is a question of subject matter jurisdiction that a party may raise at any stage of a proceeding. Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006). Although the determination that a plaintiff lacks standing is a conclusion of law that is subject to plenary review, “[w]e conduct that plenary review . . . in light of the trial court’s findings of fact, which we will not overturn unless they are clearly erroneous.” (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005). “A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) In re Jorden R., 120 Conn. App. 65, 70, 990 A.2d 385 (2010). The burden is on the party seeking judicial resolution to demonstrate that the court has subject matter jurisdiction to preside over the case by proving that he has standing to file the suit. See Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).

The court first noted the lack of any direct relationship between Barbara Levine and the defendant. It found that individually Barbara Levine does not currently hold and never has held a proprietary interest in the defendant. The court also rejected the implication that Barbara Levine had an adverse interest in the case simply because of her husband’s 20 percent ownership interest in the defendant. It found that Barbara Levine could not be assigned an adverse interest based solely on her personal relationship to a part owner. Accordingly, the record supports the court’s finding that Barbara Levine had no individual proprietary interest in the outcome of the action adverse to the plaintiffs interest and that her husband’s ownership interest was not significant enough to assign her with an interest adverse to the outcome of the action based on their personal relationship alone.

The plaintiff also argues that Barbara Levine’s interest is adverse because of a separate, pending action to dissolve the limited liability company in which Weinshel and Wynnick filed a counterclaim against Barbara Levine for mismanagement and breach of fiduciary duty. The court found that the counterclaim filed by Weinshel and Wynnick against Barbara Levine in the dissolution case does not substantiate their claim that she has an adverse interest in the outcome of the present case. Its finding is not clearly erroneous for a number of reasons. First, none of the substantive allegations from that separate dissolution case was discussed during the trial. The plaintiff briefly mentioned the dissolution case during the trial, and none of the pleadings or evidence from the other action was entered into evidence at any time. The plaintiffs limited discussion of the dissolution case in its posttrial brief included only a passing reference to the claims of mismanagement and breach of fiduciary duty, without providing the court with any substantive information explaining how those claims would cause Barbara Levine to have an adverse interest in the outcome of the present proceeding. It was appropriate for the court to focus on Barbara Levine’s role in the case at bar, not on her role in another action, and to find that she had no apparent interest in the outcome, as she is neither the defendant in the present matter, nor a party to the lawsuit. In light of the foregoing, the record supports the court’s finding that “[although [Barbara Levine] may have a claim against Weinshel and Wynnick [in another action], her interest appears to be insufficient to disqualify her vote in the current matter.”

Moreover, the language of § 34-187 (b) provides that an individual is excluded from a vote “for purposes of this section” when such individual has an interest in the outcome of “the suit . . . .” General Statutes § 34-187 (b). The statute’s reference to the “purposes of this section” and “the suit” both suggest that the adverse interest must be in the outcome of the action that is being voted on pursuant to § 34-187, not in another action pending with different parties and separate issues. The statute, on its face, indicates that an individual’s exclusion for an adverse interest in the outcome of the suit must pertain to the litigation in question for the vote. Therefore, it was not clearly erroneous for the court to confine its inquiry to the present case when assessing whether it should find Barbara Levine had an adverse interest in the outcome of the action.

Finally, during oral argument, the plaintiff disclosed that the multicount counterclaim filed by Weinshel and Wynnick against Barbara Levine for mismanagement in the dissolution action was filed after the complaint in this case was filed. The original complaint in the present case was filed on February 13, 2007, while the counterclaim was filed on November 19, 2007. At the time the vote was taken to pursue litigation, Barbara Levine was not facing claims against her by Weinshel and Wynnick, and, therefore, the court could have found that those claims, which were nonexistent at the time the present case was filed, did not create an adverse interest to the outcome of the action. Accordingly, the court’s decision was not erroneous in light of the record.

The form of the judgment is improper, the judgment is set aside and the case is remanded with direction to render judgment dismissing the action for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       Clean Air Group, Inc., is the successor in interest to Clean Air Partners, LLC, and the parties stipulated in court to adding Clean Air Group, Inc., as a defendant. Because they represent one entity, we refer to them as the defendant in this opinion.

       The operating agreement states in relevant part: “5.1.2. General Powers. . . . Notwithstanding anything to the contrary in this Agreement, the Managers shall not undertake any of the following without the approval of those Members holding a majority of the Percentages . . . 5.1.2.10. make any and all expenditures . . . including, without limitation, all legal, accounting and other related expenses incurred in connection with the organization and financing and operation of the Company . . . .”

       General Statutes § 34-187 provides: “(a) Except as otherwise provided in an operating agreement, suit on behalf of the limited liability company may be brought in the name of the limited liability company by: (1) Any member or members of a limited liability company, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of all members shall be required pursuant to subsection (b) of section 34-142; or (2) any manager or managers of a limited liability company, if the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote required pursuant to section 34-142.
      “(b) In determining the vote required under section 34-142 for purposes of this section, the vote of any member or manager who has an interest in the outcome of the suit that is adverse to the interest of the limited liability company shall be excluded.”

       The court concluded that the plaintiff lacked standing but nevertheless reached the merits of the plaintiff’s claims and rendered judgment in favor of the defendant. After concluding that the plaintiff lacked standing, the court should have dismissed the action for lack of subject matter jurisdiction and proceeded no further. See Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003); see also Practice Book § 10-33.

       It also is undisputed that Barbara Levine was not party to the decision to commence an action against the defendant.

       The plaintiff identified two Superior Court decisions in which the courts found that a member of a limited liability company had an adverse interest in the outcome of litigation when an allegation of mismanagement arose against that individual. Block v. Block, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-02-0078857-S (December 10,2002); JMAva

        Ion Investments, LLC v. Nischan, Superior Court, judicial district of Fair-field, Docket No. CV-96-0330010-S (March 7, 1997) (19 Corm. L. Rptr. 280). The court distinguished this limited case law because both court decisions cited by the plaintiff found the requisite adverse interest only where the excluded member of the company was also a party defendant to the action that the individual was excluded from voting on.

       The plaintiff cites two cases that have previously applied § 34-187. See footnote 6 of this opinion. We disagree that those cases provided the court with any guidance. They are not controlling and are factually distinguishable from the present case. In both cases, unlike the present case, the voting parties excluded the vote of a member who was a named defendant in the

        action. See Block v. Block, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-02-0078857-S (December 10, 2002); JM Avalon Investments, LLC v. Nischan, Superior Court, judicial district of Fairfield, Docket No. CV-96-0330010-S (March 7, 1997) (19 Conn. L. Rptr. 280).