author: HENNESSY, J.

text:
    HUGH R. CURRAN, EXECUTOR (ESTATE OF ELEANOR M. CURRAN) v. ZONING BOARD OF APPEALS OF THE CITY OF MILFORD ET AL.
    (AC 30051)
    DiPentima, Lavine and Hennessy, Js.
    Argued April 17
    officially released October 6, 2009

      HughR. Curran, with whom was George F. Martelon, Jr., for the appellant (plaintiff).

      John W. Knuff, with whom was Catherine A. Cug-gino, for the appellees (defendant Maura Cullen Vis-consi et al).
   Opinion

HENNESSY, J.

The plaintiff, Hugh R. Curran, executor of the estate of Eleanor M. Curran, appeals from the judgment of the trial court dismissing his appeal from the decision of the zoning board of appeals of the city of Milford (board), granting a variance for the construction of a home on property owned by the defendants Maura Cullen Visconsi, Charles R. Cullen IV and Heather Cullen (Cullens). On appeal, the plaintiff claims that the court improperly found that the record provides substantial evidence for a finding of hardship. We agree and conclude that the finding of hardship was improper and, accordingly, reverse the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The Cullens are the record owners of real property at 175 Third Avenue in Milford. The plaintiff is the adjoining landowner with property at 173 Third Avenue. The Cullens hired an architect to plan a demolition of the existing home on the property. The house predated the Milford zoning regulations and, at the present time, is a legal nonconforming use. The intention was to “construct a new home basically within the footprint of the existing house.” The lot itself is nonconforming because the width is thirty-nine feet rather than the required width of seventy feet and the depth is 99.8 feet rather than the required 100 feet. On April 20,2007, the Cullens filed an application to the board for a variance requesting permission to: (1) reduce the front yard setback from twenty-five feet to twenty-one feet; (2) reduce the right side setback from ten feet to 2.5 feet and the left side setback from ten feet to 8.5 feet; (3) increase building coverage from 35 percent to 36.8 percent; (4) increase lot coverage from 50 percent to 58.4 percent; and (5) build a twenty-four inch roof overhang.

The board held a public hearing on the application on May 8, 2007. At the meeting, the Cullens’ architect argued that most of the houses in the neighborhood were nonconforming but that the Cullens were trying to stay within the footprint, except for one comer of the proposed house that they would square off. The architect also indicated that the proposed house would probably be the same height as the existing house but, as designed, was taller. At the hearing, four people spoke in opposition, including the plaintiff. The first to speak was Alcine Panton, who spoke on behalf of the Laurel Beach Association (association) to oppose the application in its entirety. She argued that the Cullens had not even tried to demonstrate any hardship and that there was no attempt to reduce the nonconformity but, instead, to increase it. Next to speak was Eric Twombly, who lived across the street from the Cullens. He echoed the concerns of Panton and additionally argued that the association was a planned community founded in 1899 and that he was concerned that such a large structure would alter the appearance of the entire neighborhood and could lower the property values of the other homes.

The plaintiff spoke and reiterated the board’s duty to try and bring the nonconforming home into compliance, if possible. He argued that there was no unusual difficulty or any unnecessary hardship within the meaning of the statutes. He raised the issue of the twenty-four inch roof overhang, claiming that, on the right side, where the Cullens were requesting a two and one-half foot setback, the overhang would come within one-half foot of the property line. Both the plaintiff and Panton discussed drainage issues in the association’s area, and the plaintiff argued that with such a small setback, his property would be adversely affected. Last to speak was the property owner to the left of the Cullens’ property, Mary Beth Charbonneau. She was opposed to the size of the house in general. The architect, in rebuttal, claimed that the hardship was clear because the Cul-lens’ lot was a nonconforming lot.

The board closed the public hearing. During the closed portion of the meeting, the board approved the Cullens’ variance application. “The reason for approval is [that] the applicant’s proposed house will be keeping within the existing footprint. . . . [One member] added [that] the character of the neighborhood will be kept.” The board published notice of the approval on May 11, 2007, in the New Haven Register.

The plaintiff appealed from the board’s decision to the Superior Court, claiming that the board acted illegally, arbitrarily, unreasonably and in abuse of the discretion vested in it by approving the requested variance because no hardship had been shown and the decision was contrary to the Milford zoning regulations. In its memorandum of decision dated March 14, 2008, the court cited the reasons for granting the variance, which were that the planned structure was within the existing footprint and the variances that were already in place. The court noted that the architect further claimed that the structure would keep the character of the neighborhood. The court declined to consider the plaintiffs claims separately but found, as a whole, that “[t]he decision of the board is supported by substantial evidence in the record and that due to the unique nature of complete nonconformance [in] that section of the city, the record provides substantial evidence for a finding of hardship.” The court dismissed the plaintiffs appeal. The plaintiff filed the present appeal after this court granted his petition for certification.

On appeal, the plaintiff claims that the court’s conclusion that the record provides substantial evidence for a finding of hardship was improper. The Cullens argue that the evidence of nonconformity to the zoning regulations is substantial enough to find hardship. We agree with the plaintiff.

We begin by setting forth the applicable standard of review. “We must determine whether the trial court correctly concluded that the board’s act was not arbitrary, illegal or an abuse of discretion.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995). “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). The burden of proof to demonstrate that the board acted improperly is on the plaintiff. Bloom v. Zoning Board of Appeals, supra, 206. As our Supreme Court has concluded, “when a zoning board has given a formal, official collective statement of reasons for its actions, the scope of our review is limited to determining whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.” (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294-95, 947 A.2d 944 (2008).

A variance has been defined as the “authority granted to [an] owner to use his property in a manner forbidden by the zoning regulations.” (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). Our Supreme Court has cautioned that “the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. . . . [U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town-and-city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted. . . . The power to authorize a variance is only granted for relief in specific and exceptional instances.” (Citations omitted; internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991); see also Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548, 684 A.2d 735 (1996).

It is well established that “[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.” (Internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn. App. 327, 330, 834 A.2d 801 (2003). “Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . .” (Citation omitted.) Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965). Additionally, we have stated that “[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance. . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.” (Citations omitted; internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 564, 736 A.2d 167 (1999), rev’d on other grounds, 255 Conn. 143, 763 A.2d 1011 (2001); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 137. “[T]he hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.” Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978). Accordingly, our Supreme Court has interpreted General Statutes § 8-6 (a) (3) to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: “(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9:2, p. 239.

To begin, the board made no finding of a hardship. Even if the board had found for the Cullens on their claimed hardship of nonconformance, it would not suffice to grant them a variance because they made no showing that the claimed hardship was different in kind from others in the zoning district. The board’s formal rationale for approving the variance was that “the applicant’s proposed house will be keeping within the existing footprint.” This rationale was arbitrary and illegal not only because of the lack of a finding of hardship, or even the failure to address hardship, but also because the record presented to this court does not support this finding. The architect herself stated that the intention was to “construct a new home basically within the footprint of the existing house.” (Emphasis added.) She later stated that the new house would be on “essentially” the same footprint. The record is clear that the building plan is to narrow the home in some parts but to extend it from the existing footprint in the back comer. There was also no evidence presented that a home could not be built in keeping with the zoning regulations applicable to this property. Because “[disappointment in the use of property does not constitute exceptional difficulty or unusual hardship”; Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. 662; the Cullens have not shown an exceptional difficulty or an unusual hardship. The granting of the variance cannot stand.

The judgment is reversed and the case is remanded with direction to sustain the plaintiff s appeal.

In this opinion the other judges concurred.

       The board was named as a defendant at trial but is not a party to this appeal.

       The plaintiff also challenges the court’s conclusion that review of each separate challenge to the board’s decision would exceed the court’s authority and that the record provides substantial evidence to support the board’s decision. Because our resolution of the plaintiffs first claim is dispositive of his appeal, we need not address the plaintiffs other claims. See Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 500 n.6, 876 A.2d 1148 (2005).
      The Cullens claim that because they are proposing to reduce the existing nonconformities, there is an independent ground for affirming the decision of the board. According to the Cullens’ architect, the proposed building was within the existing footprint. The record is clear, however, that the proposal was to extend the footprint in part, and, therefore, the Cullens do not present sufficient evidence of reducing the nonconformity. We accordingly reject this claim.


source: Caselaw Access Project

author: HENNESSY, J. LAVINE, J.,

license: Public Domain

text:
    THE WEST HAVEN LUMBER COMPANY v. SENTRY CONSTRUCTION CORPORATION
    (AC 29609)
    Flynn, C, J., and Lavine and Hennessy, Js.

      Argued April 13
    officially released October 6, 2009

      Lawrence G. Rosenthal, for the appellant (defendant).

      Genevieve P. Salvatore, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, Sentry Construction Corporation, appeals from the judgment of the trial court awarding the plaintiff, The West Haven Lumber Company, $16,731.37 plus taxable costs. On appeal, the defendant claims that the court abused its discretion in denying both the defendant’s motion for a continuance and motion for a nonsuit. Additionally, the defendant claims that the court was incorrect in failing to apply credits to the defendant’s account, which would have reduced the amount of debt owed to the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history inform our disposition of the defendant’s appeal. Beginning in 2005, the plaintiff, a dealer in building supplies, sold construction materials to the defendant, a general contractor, pursuant to a credit agreement between the parties. Because of alleged failed payments on this open account, the plaintiff filed a complaint against the defendant instituting this collection action on October 2, 2006. Following a default judgment in January, 2007, the court granted the defendant’s motion to open the judgment. The pleadings closed in March, 2007.

Following informal discovery and unsuccessful negotiations through September, 2007, the parties were notified in October that the court had set a trial date for December 12, 2007. For the first time since the action began in October, 2006, the defendant engaged in formal discovery by sending a notice of deposition to the plaintiff on November 9, 2007. The defendant requested to depose the plaintiffs corporate representative on November 28, 2007. In response to this deposition notice, the plaintiff filed a motion for a protective order stating that its counsel’s busy hearing schedule made counsel unavailable for a deposition on the day the defendant requested. Because the parties could not agree on an alternative deposition date, the defendant filed a motion for a continuance. Before the court rendered a decision on the continuance request, the court granted the plaintiffs motion for a protective order, while also ordering that a “[deposition ... be scheduled at a mutually convenient time prior to December 12, 2007.” Because the plaintiffs counsel could not find a “mutually convenient time” to hold a deposition, the defendant, in turn, filed a motion for a nonsuit.

When the trial date arrived, the plaintiffs corporate representative had not been deposed. Consequently, the defendant’s counsel renewed his motion for a continuance and requested that the court rule on the earlier motion for a nonsuit. After the court denied both of these motions, thereby allowing the case to move forward, the court considered evidence regarding the appropriate amount of debt owed to the plaintiff. Because the court found the “plaintiffs evidence and explanations the more credible [as compared to the defendant’s],” the court determined that the defendant was indebted to the plaintiff in the amount of $13,385.11. Additional facts will be provided as necessary.

I

On appeal, the defendant first claims that the court acted arbitrarily in denying its request for a continuance. In support of this claim, the defendant states that the inability to depose the plaintiffs corporate representative proved prejudicial at trial. Specifically, the defendant argues that the lack of a pretrial deposition left it unprepared to confront: duplicate copies of invoices, instead of originals; a revised reconciliation sheet, instead of the original reconciliation sheet that accompanied the complaint; and the plaintiffs new accounting of the defendant’s balance prepared for trial, allegedly an amount arrived at through information the deposition would have revealed. We are not persuaded by these arguments.

We first set forth the applicable standards governing our resolution of the defendant’s appeal. “The trial court has a responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice. . . . In addition, matters involving judicial economy, docket management [and control of] courtroom proceedings . . . are particularly within the province of a trial court. . . . Accordingly, a trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances ....

“A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . To prove an abuse of discretion, an appellant [bears the burden of] showing] that the trial court’s denial of a request for a continuance was [unreasonable or] arbitrary .... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Citations omitted; internal quotationmarks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 12, 961 A.2d 1016 (2009). It is important to note that “[w]e are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn. App. 586, 593, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).

Although no single continuance test exists, “[o]ur Supreme Court has catalogued a nonexhaustive list of relevant factors that courts frequently consider when determining whether to grant a motion for a continuance. Courts have considered matters such as: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request . . . .” (Internal quotation marks omitted.) Mazurek v. East Haven, 99 Conn. App. 795, 807, 916 A.2d 90, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). “Although the court need not consider all of these factors in every case, and may consider factors not previously enumerated, the [previously mentioned list of factors] provides a useful framework in which to consider the court’s exercise of its discretion.” Id.

On the basis of the foregoing standard, we conclude that it was not an abuse of the court’s discretion to deny the defendant’s motion for a continuance. The court reasoned that the collection of an open account is a simple matter, not a complex undertaking. Accordingly, the court did not think it was necessary for the case to consume any more time than it already had to arrive at a disposition. In denying the renewed motion for a continuance, however, the court added the caveat that it would entertain a future continuance request by the defendant if it believed that it could not proceed at trial without having previously deposed the plaintiffs witnesses.

In response to the court’s leaving the continuance door potentially open, the defendant raised the issue that prejudice concerns may arise further along in the proceeding, citing again the inability to depose the plaintiffs corporate representative in advance of trial as the justification. With each prejudice argument raised, however, the court determined, on the basis of the evidence presented, that the defendant was not disadvantaged or taken advantage of in light of the lack of formal discovery. In response to the defendant’s specific argument focusing on the prejudice associated with not having viewed the plaintiffs exhibit five before trial, the court, yet again, rejected the continuance request because the plaintiff bore the burden of proving the amount of debt owed, not the defendant. Thus, the court clearly weighed the continuance argument raised by the defendant before denying the request and allowing the case to proceed.

Even though the previously mentioned circumstances standing alone adequately support the court’s denial of the motion for a continuance, additional findings by the court strengthen our determination that the court’s decision was reasonable. For example, the court stated in its response to the defendant’s motion for articulation that counsel from both sides contributed to the deposition’s delay. Neither party in fact moved to depose the other for more than one year after the complaint was filed. Additionally, the court found, in its memorandum of decision on the defendant’s motion for a new trial, that the defendant’s counsel had failed to perform his trial preparation in a timely fashion. Last, because the defendant claims on appeal particular prejudice from an exhibit introduced at trial that did not exist at the proposed deposition date, a presumption exists, especially given the previously mentioned findings of delay by the court, that the defendant’s motion for a continuance lacks legitimacy. As a result, the defendant did not meet its burden of proof in showing that the court’s denial of its motion for a continuance was an unreasonable or arbitrary decision.

We conclude that the court adequately considered the defendant’s motion for a continuance and that the denial of the motion was not an abuse of discretion.

II

The defendant next clams that the court improperly denied its motion for a nonsuit. The defendant states that it not only properly gave notice of the deposition of the plaintiffs corporate representative, but that the court, in ruling on the plaintiffs motion for a protective order, ordered the deposition to be taken prior to trial. Because the defendant was denied that discovery, it argues that the court abused its discretion in refusing to grant the motion for a nonsuit. We disagree.

Because the procedural history was recited previously in detail, we only briefly highlight the court’s deposition order that gave rise to the motion for a nonsuit. On November 27, 2007, the court granted the plaintiffs motion for a protective order. Although the court granted this motion, the court also ordered that a “[deposition ... be scheduled at a mutually convenient time prior to December 12, 2007,” the date set for trial. Because the plaintiffs counsel could not find a convenient time to schedule the deposition prior to trial, the defendant filed a motion for a nonsuit on December 3, 2007. At trial, the court denied the defendant’s nonsuit request, determining that it was not worth penalizing anyone for the failure to hold a deposition.

“Generally speaking, a nonsuit is the name of a judgment rendered against a party in a legal proceeding upon his inability to maintain his cause in court, or when he is in default in prosecuting his suit or in complying with orders of the court. . . . The nonsuit forecloses the plaintiff from further prosecution of the action . . . (Citation omitted; internal quotation marks omitted.) Trumbull v. Palmer, 104 Conn. App. 498, 512, 934 A.2d 323 (2007), cert. denied, 286 Conn. 905, 944 A.2d 981 (2008).

Practice Book § 13-14 provides sanctions for failure of a party to appear and to testify at a deposition duly noticed, which the court may order upon motion as the “ends of justice require.” Practice Book § 13-14 (a). “These orders may vary in severity from entry of a nonsuit or default or judgment of dismissal to an award of costs of the motion, including a reasonable attorney’s fee. Decisions on the entry of such sanctions rest within the sound discretion of the trial court. ... On viewing a claim that this discretion has been abused, great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did. . . .

“The factors to be considered by the court include: (1) whether the noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to the party’s case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party’s conduct.” (Citations omitted; internal quotation marks omitted.) Tuccio v. Garamella, 114 Conn. App. 205, 208, 969 A.2d 190 (2009).

In addressing the noncompliance factor, we conclude that the record supports that the court reasonably could have concluded that the plaintiffs counsel was unable to attend a deposition before trial. At trial, the plaintiffs counsel laid out her schedule, in detail, in support of her argument that a mutually convenient time to schedule a deposition was simply not possible. No evidence exists that the plaintiff wilfully disregarded the order when it was in fact possible to comply with it or that the plaintiff avoided the deposition out of bad faith.

Because we addressed the prejudice factor in the context of the defendant’s motion for a continuance claim, we only briefly discuss it here. The court appropriately found that the extent of the prejudice experienced by the defendant did not support the granting of a nonsuit. This is true given the court’s finding that counsel for both parties contributed to the deposition’s delay; it also is true because exhibit five, the exhibit allegedly causing the most prejudice to the defendant, did not exist until the day before trial and, thus, would not have been discussed at a pretrial deposition.

The final nonsuit factor is whether the court abused its discretion in determining that, under the circumstances of the case, no sanction was the appropriate judicial response to the noncomplying party’s conduct. “ [Discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... In addition, the court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort. . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.” (Internal quotation marks omitted.) Id., 209.

Under the circumstances of this case, we conclude that the court appropriately denied sanctions against the plaintiff. Provided the time constraints between the originally scheduled deposition and the start of trial, the plaintiffs counsel explained that she was unable to schedule a deposition. Furthermore, the defendant did not persuade the court that it suffered prejudice due to the lack of the deposition. Thus, granting the defendant’s nonsuit request would have been disproportionate to the violation of the discovery order. See id., 210.

Accordingly, we conclude that the court adequately considered the defendant’s motion for a nonsuit and that the denial of the motion was not an abuse of discretion.

Ill

The defendant last claims that the court was incorrect in failing to apply credits to its account. Specifically, the defendant argues that a number of credits for materials charged and later returned to the plaintiff were not accounted for in the plaintiffs ultimate balance determination in exhibit five. We are not persuaded.

Because the determination of whether the plaintiff appropriately applied credits due on the defendant’s account is a question of fact, the trial court’s credit findings are binding on this court unless such findings are 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. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make eveiy reasonable presumption . . . in favor of the trial court’s ruling.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 487, 970 A.2d 592 (2009).

Our review of the record reveals that the court did not incorrectly refuse to apply the defendant’s alleged credits on the account. From the transcript, as well as the court’s memorandum of decision, it is clear that the court weighed conflicting evidence and testimony regarding the numerous credits involved. After evaluating the credit arguments, the court specifically found that the plaintiffs explanations and evidence as to the amount owed were much more credible than the defendant’s.

Although it is true that the defendant’s cross-examination of the plaintiffs credit manager called into question whether some credits were appropriately applied to the plaintiffs exhibit five, we are not left with the definite and firm conviction that a mistake has been committed. Conversely, the entirety of the evidence strongly supports the court’s determination that the plaintiffs balance was accurate. For example, the court indicated in its articulation of its decision that the testimony of the defendant’s president regarding credits was not credible; in fact, the document admitted in support of the president’s credit arguments was found by the court to be “self-serving” and “untrustworthy, in fact, contrived . . . Because we give great deference to the court’s weighing of evidence and credibility determinations, and make all reasonable presumptions in favor of its ruling, we conclude that it was not clearly erroneous for the court to reject the defendant’s credit arguments.

The judgment is affirmed.

In this opinion FLYNN, C. J., concurred.

LAVINE, J.,

concurring. In the usual circumstance, counsel’s failure to find the time—even in the midst of a busy schedule—to attend a court-ordered deposition prior to trial would create significant concerns about the fairness of the proceedings. The order requiring that a deposition be scheduled at “a mutually convenient time” cannot plausibly be read as a request of counsel to schedule a deposition only if a convenient time could be found. The only reasonable reading was to require counsel to make herself available for a deposition. Nonetheless, I agree that the court’s denial of the motions filed by the defendant, Sentry Construction Corporation, for a continuance and a nonsuit was not an abuse of discretion, given the particular facts of this case. This decision should not, however, be read to countenance self-serving interpretations of court orders.

For the foregoing reasons, I respectfully concur in the majority opinion.

       Not only did the plaintiffs counsel state that she had a hearing on November 28, 2007, but she also stated that she was traveling to Georgia for a hearing at the end of November and had previously scheduled hearings on November 19, 29 and 30, and December 3, 4 and 12.

       Although no written notice was provided, the parties were notified by the clerk of the court that the defendant’s motion for a continuance was denied.

       Because the defendant agreed in the credit application to pay collection costs, including attorney’s fees, to the plaintiff, the court determined the plaintiffs total award to be $16,731.37.

       The defendant acknowledged at oral argument before this court that the original motion for a continuance was denied properly. The court’s denial of the second motion for a continuance raised at trial is the claim on appeal.

       The defendant states that the ultimate prejudice against it was the inability to ascertain the information in exhibit five before trial. Exhibit five contains a summary of the outstanding invoices, which the plaintiff argues reflect the balance owed by the defendant. Because the court relied on exhibit five in determining the plaintiffs award, the defendant argues that a deposition would have allowed access to this information in advance of trial, thereby decreasing the alleged prejudice the defendant experienced when it saw the exhibit for the first time at trial.

       The plaintiffs exhibit five, which the defendant argues most severely prejudiced it, was created the day before trial. Thus, it would not have been discussed at a deposition before trial.

       The defendant relies on Ramos v. Ramos, 80 Conn. App. 276, 835 A.2d 62 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1175 (2004), in arguing that the failure of a party to have the opportunity to refute an important and untimely piece of evidence constitutes prejudice. Not only did Ramos involve an arguably more complex damages action than the current collection action before this court, but the defendant here has not adequately shown that deposing the plaintiffs corporate representative would have impacted the outcome of the case.

       Because the plaintiffs counsel claimed that a mutually convenient time prior to December 12, 2007, did not exist in light of her schedule, counsel argued that she was not disregarding the court’s order. Because we affirm on other grounds, given the particular time constraints existing in this case, in light of the full record, we need not address this argument.

       In support of her inability to reschedule a deposition before trial, the plaintiffs counsel stated to the court, “If I could have found a day, Your Honor, that would not have prejudiced my other clients, I certainly would have done so. However, given the—the time of the year, given the—the short timing with which [the defendant’s counsel] decided to notice his deposition it simply wasn’t possible.”

       Although arguably '‘other fault” exists under this first nonsuit factor because the plaintiff did not request that the court clarify the intention of its order, even if such a clarification mandated a pretrial deposition, nothing in the record supports that the plaintiffs counsel could then have reshuffled her hearing schedule to comply with that unequivocal directive.

       The court determined that the standard for sanctions in Tuccio, as adopted from Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16-17, 776 A.2d 1115 (2001), applies equally to nonsuits and dismissals.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. ANTHONY L. HENRY
    (AC 30509)
    Flynn, C. J., and Robinson and West, Js.

      Argued May 28
    officially released October 6, 2009

      Leopold P. DeFusco, special public defender, for the appellant (defendant).

      Tamara A. Grosso, special deputy assistant state’s attorney, with whom were Michael E. O’Hare, supervisory assistant state’s attorney, and, on the brief, David I. Cohen, state’s attorney, and Suzanne M. Vieux, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Anthony L. Henry, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly failed to credit him for 411 days of presentence confinement that he was supposed to receive pursuant to a plea agreement he entered on June 15, 2005. We affirm the judgment of the trial court.

The following undisputed facts and procedural background are relevant to our resolution of the defendant’s appeal. The defendant was arrested and charged on three separate occasions with, inter alia, the sale of illegal drugs by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The arrests occurred on September 25, 2003, and March 2 and April 15, 2004. After each arrest, the defendant immediately posted bond and was released. On April 30, 2004, the defendant was taken into custody because of an error with the bond he posted for the March 2, 2004 arrest. For the next fifty-five days, he remained in custody. On June 24, 2004, the bond for his first arrest was raised and not posted. As a result, the defendant remained incarcerated for an additional seventy-five days. Thereafter, on September 7, 2004, the defendant pleaded guilty to possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) for the charge related to the September 25, 2003 arrest. He was sentenced to a term of five years imprisonment.

On June 15, 2005, 281 days after his initial guilty plea, the defendant pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and criminal impersonation in violation of General Statutes § 53a-130. The guilty pleas arose out of his arrest on March 2, 2004, and were entered as part of a plea agreement reached with the state. The defendant then was sentenced to six years imprisonment for the violation of § 21a-277 (a) and six months imprisonment for the violation of § 53a-130. The sentences were ordered to run concurrently with each other and with his original five year sentence for a total effective sentence of six years to serve, followed by six years special parole.

On September 9, 2008, after learning that he would receive zero credit for the time he was in custody between April 30,2004, and June 14,2005, the defendant filed a motion to correct an illegal sentence. The defendant requested the court to provide 412 days of credit for his pretrial confinement. After an evidentiary hearing, the court denied the motion on September 29, 2008. This appeal followed. Additional facts will be set forth as necessary.

We note from the outset that the defendant agrees that he is not entitled to a presentence confinement credit pursuant to General Statutes § 18-98d (a) (1). Rather, the defendant maintains that his sentence was imposed in an illegal manner because he was entitled to, but did not receive, a presentence credit as a result of the plea agreement entered on June 15, 2005. He argues that the terms of this plea agreement were ambiguous, and, therefore, the terms should be construed in his favor.

Practice Book § 43-22 provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” “Sentences imposed in an illegal manner have been defined as being ‘within the relevant statutory limits but . . . imposed in a way which violates [the] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . (Emphasis added.) State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988); see also State v. Pagan, 75 Conn. App. 423, 430, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003).

“We will reverse the court’s denial of the [defendant’s] motion to correct the sentence only on a showing that the court abused its discretion. . . . Furthermore, in reviewing the [defendant’s] claims, we do not question credibility determinations reached by the court, for the trial court is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . Additionally, the [defendant] can prevail in his challenge to the trial court’s factual findings only if those findings are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. Dixson, 93 Conn. App. 171, 176-77, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006).

On the basis of our review of the record, we conclude that the court did not abuse its discretion by denying the motion to correct an illegal sentence because the presentence credit was not a negotiated term of the plea agreement. Although the transcript from the sentencing hearing reveals that there was some dispute regarding what credits the defendant was entitled to for time spent in custody prior to the second guilty plea, it does not suggest any ambiguity in the plea agreement itself. The following colloquy between the court and counsel immediately following the defendant’s guilty plea is significant to this conclusion:

“The Court: All right. The court will find that the plea is—the pleas are knowingly and voluntarily made with the assistance of competent counsel, that there is a factual basis for the pleas. The pleas are accepted and a finding of guilty may enter. Anything else?

“[Defense Counsel]: Just, Your Honor, with respect to jail credit, [the defendant]—there were some issues that came up that may result in a little problem, and I’m just asking Your Honor to order that any jail credit he’s entitled to back to April—

“[The Defendant]: Thirtieth.

“[Defense Counsel]:—thirtieth of 2004, be given to him in this case. There was an issue of bonding out when—and stuff of that nature. In addition, he’s a sentenced prisoner out of Stamford court. But if Your Honor says that he’s to get his credit back to April 30, 2004, there should be no issues over that.

“[The Prosecutor]: The state has no objection to that being put on the mittimus Your Honor; however, I just want the record to reflect that the spirit of the agreement that the state of Connecticut has entered into is that he is to get his six years to serve and six [years] special parole, and that this plea is being struck today. To the extent that he is entitled to credit and [the department of correction] gives that to him, that’s great. But as far as the state of Connecticut is concerned, he’s starting his time now ....

“[Defense Counsel]: He understands that, Your Honor.” (Emphasis added.)

Thereafter, the court and the defendant, through his counsel, engaged in a discussion of what credits the defendant was “entitled to.” A clear result was not decided, and the court concluded: “I’m sentencing you to six years in jail. What they want to do up there is entirely up to them. But I will state on the [mittimus] with what we’ve agreed to.” The court then ordered that the defendant was to receive whatever credit he was entitled to.

It is this discussion and resulting order that forms the basis of the defendant’s argument that the plea agreement was ambiguous. We are not persuaded by this argument because the transcript reflects that the plea agreement was for six years incarceration and six years special parole. The state clarified the terms of the agreement, and the defendant and his counsel did not indicate that this contradicted their understanding of the terms. See State v. Cazzetta, 97 Conn. App. 56, 60-61, 903 A.2d 659 (2006) (trial court reasonably concluded defendant cannot claim he was surprised by sentence because he had opportunity to indicate imposed sentence inconsistent with plea agreement). Our review of the transcript as a whole indicates that any discussion of jail time credit occurred separate from the plea agreement. Accordingly, the court did not abuse its discretion by denying the defendant’s motion to correct an illegal sentence.

We also find it significant that despite the argument that the plea agreement was ambiguous and resulted in the defendant’s not receiving what he thought he had bargained for, counsel for the defendant repeatedly argued in support of his motion to correct that the fair result was to credit the defendant for at least a portion of the time served prior to the entry of the second guilty plea. The following colloquy from the hearing on the motion to correct is revealing:

“[Defense Counsel]: First of all, again, he’s going to do over seven years, and what we’re asking Your Honor to do today is, if Your Honor didn’t feel that he should get credit for his dead time after he became a sentenced prisoner, that 281 days, at the very least, we would ask you to give him credit for the 130 days that he didn’t get because he pleaded on the wrong file here and because his bond was raised in Stamford. ... I would think that . . . anyone would see that at the very least, it would be reasonable to give him the 130 days that he lost for no good reason. The 281 days that he lost because he was a sentenced prisoner, I’d like to have you order that as well because I feel that the discussions during the plea agreement were ambiguous, and you ought to go with what he expected to get, which was the whole 411 or 412 days . . . .

“The Court: I disagree with you there. I disagree.

“[Defense Counsel]: Judge, I just think that fairness requires when you started his jail on April 30, 2004, he had been in already four and one-half. He’s going to end up doing over seven of a six [year sentence]. That is just not fair.

“The Court: Well, he pleaded guilty, and his plea bargain gave him six years and that’s what I sentenced him to.”

This exchange lends further support for our conclusion that the court did not abuse its discretion in denying the defendant’s motion to correct an illegal sentence. Although the defendant argues that the plea agreement was ambiguous, his arguments to the court in actuality were premised on what he perceived to be the fair result, not what he believed to be the terms of his plea agreement.

The judgment is affirmed.

In this opinion the other judges concurred.

       As part of the plea agreement, the state agreed to enter a nolle prosequi on the remaining charges pending against the defendant, including the charges stemming from his arrest on April 15, 2004.

       We note that the record reflects requests for 412 and 411 days without providing an explanation for the discrepancy. The defendant’s motion to correct includes a request for 412 days of presentence credit while the appeal to this court argues that the trial court improperly failed to credit the defendant for 411 days of presentence confinement credit.

       At the hearing on the motion to correct an illegal sentence, the defendant testified that he was expecting a credit but that his expectation was based on his assumptions. Specifically, he stated that he had been advised by his attorney that a request would be made for the credits but that no promises were made that the request would be successful. The defendant was asked whether his assumption was based on any promises made by his attorney, the court or the state, and the defendant responded in the negative.

       We note that the defendant’s counsel at his sentencing hearing clearly indicated that the defendant was not seeking credit for the 281 days he was incarcerated as a sentenced prisoner. Counsel stated: “He has been held on this case since April 30 of last year. There is a part of time when he was a sentenced prisoner. He understands that that credit is not going to be applied, but time prior to the sentencing is what we’re concerned about.” This statement undermines the defendant’s claim that he believed his plea agreement included 411 or 412 days of jail time credit. Furthermore, immediately following this statement by counsel, the defendant addressed the court and therefore had the opportunity to correct his counsel’s statement if he believed that it was in error. See State v. Cazzetta, supra, 97 Conn. App. 61.

       A subsequent statement by defense counsel at the September 29, 2008 hearing lends further support to our conclusion: “I was just going to respectfully request that the court either grant him the entire 412 days, which is from the day he went in until the time he was sentenced or, at the very least, the fifty-five days that he lost because he pleaded on the wrong file or the 130 days that he lost because he pleaded on the wrong file and then has his bond reduced in Stamford and lost that credit; so, either fifty-five, 130 or 412, and that’s all, Your Honor.”


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. WILLIAM MCELVEEN
    (AC 29638)
    Harper, Alvord and Mihalakos, Js.

      Argued April 24
    officially released October 6, 2009

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Helen M. McLellan, assistant state’s attorney, and Karen Roberg, deputy assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, William McElveen, was convicted of larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b (a) and subsequently was given an enhanced sentence as a persistent larceny offender pursuant to General Statutes § 53a-40 (e). On appeal, the defendant claims that (1) the state adduced insufficient evidence to support a finding that he was a persistent larceny offender, (2) the part B information charging him with being a persistent larceny offender was defective, thereby depriving him of his constitutional right to due process under the state and federal constitutions, and (3) the trial court improperly instructed the jury on the basis of a defective information. We dismiss the appeal as moot.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The jury reasonably could have found that on July 19, 2006, the defendant shoplifted items valued at slightly less than $50 from a New Haven bookstore. Thereafter, the defendant was arrested and charged in a part A information with, inter alia, larceny in the sixth degree in violation of §§ 53a-119 and 53a-125b (a). Following a jury trial, the defendant was found guilty of that charge.

The state also charged the defendant in a part B information with being a persistent larceny offender pursuant to § 53a-40 (e). Following a hearing, the jury found the defendant to be a persistent larceny offender. The jury further found that, on the basis of the defendant’s history and character and the nature and circumstances of his criminal conduct, a period of extended incarceration would best serve the public interest. On the basis of these findings, the court sentenced the defendant to a total effective term of five years incarceration. This appeal followed.

While this appeal was pending, the defendant filed a motion to modify his sentence. On December 3, 2008, the court granted the motion and vacated the enhanced penalty imposed as a result of the jury’s having found the defendant to be a persistent larceny offender. The court ordered that the defendant be sentenced to ninety days incarceration on the conviction of larceny in the sixth degree. The court gave the defendant credit for his pretrial and postconviction incarceration, and, as a result, he immediately was released from custody.

Before we can reach the merits of the defendant’s appeal, we first must address the issue of mootness. See State v. Preston, 93 Conn. App. 527, 530, 889 A.2d 845 (2006) (“[m]ootness implicates the court’s subject matter jurisdiction and is therefore a threshold issue for us to resolve” [internal quotation marks omitted]). The state argues that the court’s December 3,2008 order vacating the defendant’s enhanced sentence renders his appeal moot because there exists no “conviction” under § 53a-40 (e) for this court to reverse. The defendant argues in his reply brief that the fact that he was found to be a persistent larceny offender constitutes a “conviction,” and, therefore, this court can afford him further practical relief beyond the December 3, 2008 order in the form of reversing his persistent larceny offender “conviction.” We agree with the state.

“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.) State v. Preston, supra, 93 Conn. App. 530. “The determination of whether a claim has become moot is fact sensitive, and may include the representations made by the parties at oral argument. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Citation omitted; internal quotation marks omitted.) Cooke v. Cooke, 95 Conn. App. 288, 291, 897 A.2d 112 (2006).

“[U]nder this court’s long-standing mootness jurisprudence . . . despite developments during the pen-dency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur. . . . [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future.” (Internal quotation marks omitted.) Chimblo v. Monahan, 265 Conn. 650, 655-56, 829 A.2d 841 (2003).

The court’s December 3, 2008 order rendered the defendant’s appeal moot. The jury found the defendant to be a persistent larceny offender pursuant to § 53a-40 (e). Contrary to the defendant’s contentions, the legal consequence of this finding was not a conviction under § 53a-40 (e) but, rather, an enhanced sentence. “[Section] 53a-40 constitutes a sentence enhancement provision, and not an independent criminal offense . . . .” (Citation omitted.) State v. Velasco, 253 Conn. 210, 224, 751 A.2d 800 (2000); see also State v. Sinclair, 184 Conn. 215, 216, 439 A.2d 945 (1981) (persistent felony offender charge not separate crime); State v. Perkins, 169 Conn. 263, 265, 363 A.2d 141 (1975) (same). On December 3, 2008, the court vacated the defendant’s enhanced sentence, thereby eliminating the only legal consequence of his having been found to be a persistent larceny offender. As a result of the court’s December 3, 2008 order, there is no further practical relief that a successful appeal could provide to the defendant. Contrary to the defendant’s contentions, he is not entitled to relief beyond having his enhanced sentence vacated because there is no persistent larceny offender conviction for us to reverse. See State v. Velasco, supra, 224; see also State v. Dash, 242 Conn. 143, 146-50, 698 A.2d 297 (1997) (defendant entitled to have conviction vacated where court improperly rendered judgment convicting defendant of separate crime under sentence enhancing provision of General Statutes § 53-202k).

The defendant argues in his reply brief that the collateral consequences exception to the mootness doctrine applies, and, therefore, his appeal is not moot. Specifically, he argues that there is a reasonable possibility that if he commits a crime in the future, as a result of his persistent larceny offender “conviction,” he could be subject to enhanced penalties. We are not persuaded.

Numerous collateral legal consequences, such as possible heavier penalties on subsequent convictions, are imposed as a matter of law because of a criminal conviction. Barlow v. Lopes, 201 Conn. 103, 112-13, 513 A.2d 132 (1986). Because § 53a-40 constitutes a sentence enhancement provision and not an independent criminal offense; see State v. Velasco, supra, 253 Conn. 224; the defendant was not “convicted” pursuant to § 53a-40 (e). Accordingly, the collateral legal consequences that flow from a criminal conviction are not present in this case. Furthermore, leaving no room for doubt that the aforementioned prejudicial collateral consequences are not imposed as a matter of law in the present case, the court vacated and dismissed any “conviction” under § 53a-40 (e).

We conclude that the defendant’s appeal is moot. The defendant was unable to demonstrate a reasonable possibility of collateral consequences so as to overcome the mootness of his appeal. Therefore, we do not have subject matter jurisdiction, and, accordingly, we do not reach the merits of the defendant’s appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant also was charged with robbery in the third degree in violation of General Statutes § 53a-136 (a) and robbery in tire second degree in violation of General Statutes § 53a-135 (a) (2). The court granted the defendant’s motion for a judgment of acquittal as to the charge of robbery in the second degree. Following a jury trial, the jury found the defendant not guilty of robbery in the third degree.

       The defendant was charged with being a persistent larceny offender on the basis of his prior convictions of larceny in the sixth degree and attempt to commit larceny in the sixth degree.

       Larceny in the sixth degree is a class C misdemeanor; General Statutes § 53a-125b (b); carrying a maximum term of imprisonment of three months; General Statutes § 53a-36 (3).

       Nonetheless, during the pendency of this appeal, the trial court granted a “motion to correct judgment” made by the defendant. The court ordered that the “defendant’s part B conviction is vacated and dismissed” and that the defendant’s criminal record so reflect. Although we disagree with the court’s description of its ruling as having vacated and dismissed the defendant’s part B “conviction,” the court, nonetheless, clearly vacated the defendant’s enhanced sentence on December 3, 2008. Although the defendant’s appeal was rendered moot by the court’s December 3,2008 order, the court’s additional order vacating and dismissing his persistent larceny offender “conviction” refutes the defendant’s argument in his reply brief that practical relief exists in the form of vacating his “conviction” as a persistent larceny offender and leaves no doubt as to the mootness of the defendant’s appeal.

       For the first time at oral argument before this court, the defendant raised a novel issue concerning possible collateral consequences. By the time of oral argument, the trial court had vacated and dismissed the defendant’s persistent larceny offender “conviction.” The defendant argued that a part B charge is equivalent to a part A charge, and, therefore, the court’s order vacating and dismissing his part B charge should be reflected in his criminal history record in the same prominent location that such an order regarding a part A charge would be located. The defendant contends that although his record of criminal history reflects that the part B “conviction” was vacated and dismissed, confusion could arise in the future because this result is not listed in the same prominent location as the same disposition in a part A charge would be listed.
      The defendant has not shown that there is a reasonable possibility that prejudicial collateral consequences will occur due to the format in which his record of criminal history is presented. Because the defendant has not established these consequences by more than mere coryecture, he has not successfully invoked the collateral consequences exception to the mootness doctrine. See, e.g., Patterson v. Commissioner of Correction, 112 Conn. App. 826, 831, 964 A.2d 1234 (2009) (“[f]or a litigant to invoke successfully the collateral consequences doctrine ... the litigant must establish these consequences by more than mere conjecture” [internal quotation marks omitted]). Furthermore, the change the defendant seeks in his record of criminal history would not necessarily occur even if we were to reverse his persistent larceny offender “conviction.”


text:
    STATE OF CONNECTICUT v. MICHAEL WINTER
    (AC 26896)
    Lavine, Robinson and Schaller, Js.

      Argued June 1
    officially released October 6, 2009

      Nina Trester-Cestaro, 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 Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Michael Winter, appeals from the judgments of conviction, rendered after a jury trial, of criminal violation of a protective order in violation of General Statutes § 53a-223, disorderly conduct in violation of General Statutes § 53a-182, falsely reporting an incident concerning serious physical injury or death in violation of General Statutes § 53a-180b and making a false statement in the second degree in violation of General Statutes § 53a-157b. On appeal, the defendant claims that the court improperly denied (1) his motion to dismiss the charge of criminal violation of a protective order and (2) his motion for a judgment of acquittal. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. A family violence protective order was issued on January 27, 2003, against the defendant at the request of Debra L. Thibault, his former girlfriend. He had continued to contact Thibault, primarily via e-mail, after their relationship ended, and she sent him a certified letter in June, 2002, which stated that on the basis of the advice she received from an officer at the Woodbury police department, she was asking him to stop contacting her. The defendant sent Thibault a letter despite her request, and she contacted the Woodbury police department. She also received numerous telephone calls and voicemail messages from the defendant in September, November and December, 2002, and a Christmas card from him in December. A warrant was issued for the defendant’s arrest after Thibault filed a complaint after receiving the telephone calls from him.

As a result, the 2003 protective order was issued, which forbade the defendant from having any contact in any manner with Thibault and from coming within 100 yards of her. In issuing the order, the court indicated that the defendant and the victim had been dating for one and one-half years. Despite the 2003 protective order being in place, the defendant was arrested a second time and charged with criminal violation of the protective order and stalking in the first degree after an incident on June 17, 2003, in which Thibault found the defendant standing in her driveway when she returned home from work that evening.

In addition, on January 4, 2004, the defendant made a telephone call to 911 in which he reported that Thi-bault had called him and threatened to kill herself. He told the 911 dispatcher, located at the Litchfield barracks of the state police, what he claimed that Thibault had said to him. He stated: “I’m not sure if I’ve got a hoax going on here, or a problem, but at least, just to make sure, I’m calling you guys. I just got a call from my ex-girlfriend. Real quickly, she said, ‘This is [Thi-bault], I’m thinking about killing myself unless I’m able to talk to you.’ And she hung up on me. Now, she has a protective order on me where I cannot talk to her. I didn’t say a word. She just hung up. I don’t know if she’s playing games or if she really is suicidal.”

After receiving the telephone call from the defendant, Lawrence Rockhill, a Woodbury police officer, and Anthony Carter, a state police trooper, went to check on Thibault’s well-being, while another trooper, Dane Hassan, interviewed the defendant. Thibault denied making any telephone call to the defendant and did not appear to Carter to be distressed or in a condition such that she might harm herself. After being interviewed by Hassan, the defendant signed a sworn statement attesting that he had received a telephone call from someone whom he believed to be Thibault and that that person told him that she was going to commit suicide and that he notified the authorities because he was worried about her.

Carter, who had just interviewed Thibault, then arrived and questioned the defendant. Hassan testified that the defendant incriminated himself by changing his story, by his body posture, by the fact that he used the past and present tense and by his agitation toward Thibault followed by his statements that he hoped that after this telephone call, she would call him and they could reconcile. As a result of this incident, the defendant was arrested and charged with criminal violation of a protective order, falsely reporting an incident concerning serious physical injury or death in violation of § 53a-180b, making a false statement in the second degree in violation of § 53a-157b and disorderly conduct in violation of § 53a-182 (a) (2).

The charges against the defendant were consolidated and trial began on May 6, 2005. On June 7, 2005, the jury returned a verdict of not guilty on the charges of stalking in the first degree and one count of criminal violation of a protective order. The jury returned a verdict of guilty of disorderly conduct, falsely reporting an incident concerning serious physical injury or death, making a false statement in the second degree and the second count of criminal violation of a protective order. The defendant filed an amended motion to dismiss on May 11, 2005, which the court denied orally on May 16, 2005. He filed a motion for a judgment of acquittal on June 14, 2005, and a motion for a new trial on June 14, 2005. The court denied these motions in a memorandum of decision issued on May 30, 2007. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his amended motion to dismiss. He asserts that the court did not have jurisdiction to issue the 2003 protective order because the situation did not involve family violence, his relationship with Thibault was not a recent one and the order was issued in connection with an unlawful arrest. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. The defendant filed an amended motion to dismiss on May 11, 2005, in which he alleged that he and Thibault had been in a relationship from January, 2001, through sometime in 2002, during which, at least part of that time, Thibault was still married. The defendant admitted to receiving a certified letter from Thibault in June, 2002, which was admitted as an exhibit at trial and which stated that she had attempted to end their relationship in the past few months before that date and was asking him again not to contact her by telephone, e-mail or in person or she would have no choice but to contact the police.

In the motion, the defendant claimed, among other things, that the count concerning the criminal violation of a protective order should be dismissed because the court lacked subject matter jurisdiction to issue the protective order, as there was no allegation that a “family violence crime” had occurred as defined by General Statutes § 46b-38a (1), nor were he and Thibault married or in a recent dating relationship, as required by General Statutes § 46b-38c. Similarly, he asserts that because there were no reported acts of physical violence or threats of physical violence, the court lacked the authority to issue the protective order and that the counts of the information involving a violation of the protective order should be dismissed because the protective order was transparently invalid. In conjunction with that claim, the defendant also asserts that his arrest on the 2003 charge of criminal violation of the protective order was invalid because the statute proscribing harassment in the second degree, General Statutes § 53a-183, with which he also had been charged, does not apply to cellular communications, and if he could not be arrested on a charge of violation of § 53a-183 that was based on his telephone calls to Thibault’s cellular telephone, the subsequent protective order should not have been issued.

We first set forth the general legal principles governing our review of the denial of the defendant’s motion to dismiss. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Citations omitted; internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2008).

A

The defendant’s assertion that the court “lacked jurisdiction” to issue the protective order is in actuality a challenge to the underlying factual findings made by the court in issuing the protective order and will be addressed as such. Substantively, it is not, as the defendant claims, a challenge to the court’s jurisdiction. It is the substance and not the title of the claim that controls our analysis. See, e.g., State v. Peay, 96 Conn. App. 421, 436 n.9, 900 A.2d 577, cert. denied, 280 Conn. 909, 908 A.2d 541 (2006).

The court, in an oral decision denying the defendant’s motion to dismiss, stated: “Reviewing all the facts and circumstances regarding issuance of the family violence protective order, the defendant has provided no persuasive evidence that the order lacked any pretense to validity at the time it was issued. The court also finds that the defendant has not met his burden to demonstrate that the collateral attack on the order in this proceeding is appropriate pursuant to [State v. Wright, 273 Conn. 418, 426, 870 A.2d 1039 (2005)].”

The collateral bar' rule, initially applied in the context of a contempt proceeding, holds that “a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed”; (internal quotation marks omitted) Cologne v. Westfarms Associates, 197 Conn. 141, 148, 496 A.2d 476 (1985); and that “there is no privilege to disobey a court’s order because the alleged [subject] believes that it is invalid.” Id. The collateral bar rule has been extended to apply to situations in which, as in this case, the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule “is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” State v. Wright, supra, 273 Conn. 426. “[A]n order issued by a court of competent jurisdiction must be obeyed by the parties until it is reversed by orderly and proper proceedings. ... [A] party has the duty to obey a court order however erroneous the action of the court may be . . . .” (Internal quotation marks omitted.) Zoll v. Zoll, 112 Conn. App. 290, 304, 962 A.2d 871 (2009).

In Zoll, in which the defendant was found to be in contempt of court and, on appeal, challenged the validity of the underlying contempt order, this court declined to address the substance of the underlying order and held that his argument that because the underlying order was improper, the finding of contempt was likewise improper was contrary to established principles underlying civil contempt. Id. This court emphasized that a contempt proceeding does not permit the reviewing court to reconsider the underlying legal and factual basis for the initial order. Id.

Furthermore, and most importantly, the validity of the underlying order is not an element of the crime of criminal violation of a protective order under § 53a-223. See State v. Manns, 91 Conn. App. 827, 833, 882 A.2d 703, cert. denied, 276 Conn. 927, 889 A.2d 818 (2005). In State v. Wright, supra, 273 Conn. 418, our Supreme Court held that the invalidity of the protective order does not constitute a legitimate defense to the charged crime. Id., 424. The Wright court began its analysis by reiterating its holding in Cologne v. Westfarms Associates, supra, 197 Conn. 147-48, that in the context of a contempt proceeding, “an order issued by a court of competent jurisdiction must be obeyed by the parties until it is reversed by orderly and proper proceedings.” (Internal quotation marks omitted.) State v. Wright, supra, 425. In extending the application of this rule from a contempt proceeding to a protective order, the court concluded: “If the defendant believed that the [protective] order did not comport with the statutory requirements of § 46b-38c (e), he had two lawful remedies available to him. He could have: (1) sought to have the order modified or vacated by a judge of the Superior Court pursuant to Practice Book § 38-13; or (2) appealed the terms of the order to the Appellate Court in accordance with General Statutes § 54-63g. Having failed to pursue either remedy, the defendant may not seek to avoid his conviction for violating that order by challenging the factual basis of its issuance.” State v. Wright, supra, 426-27; see also State v. Manns, supra, 833. On the basis of the foregoing, we conclude that the collateral bar rule prohibits the defendant from challenging the validity of the protective order.

B

The defendant also argues that his circumstances fall within a recognized exception to the collateral bar rule, namely, that the order was transparently invalid. He first asserts that this exception should apply because there were no reported acts of physical violence or threats of physical violence. He additionally claims that the order was transpar ently invalid because the harassment statute, § 53a-183, does not apply to communications made via cellular' telephones. We find both arguments unpersuasive.

The transparently invalid order exception rests on the premise that “a court issuing a transparently invalid order is acting so far in excess of its authority that it has no right to expect compliance and no interest is protected by requiring compliance.” (Internal quotation marks omitted.) State v. Wright, supra, 273 Conn. 429. The exception should be applied only “in those extremely rare cases [in which] the order . . . had [no] pretense of validity at the time it was issued . . . .” (Citations omitted; internal quotation marks omitted.) Id. Additionally, the exception applies only “when a defendant can show compelling circumstances, such as the need to act immediately, that excuse his decision not to seek or to await emergency relief from a reviewing court.” (Internal quotation marks omitted.) Id., 430.

In claiming that the court issued the order despite the absence of reported instances of violence, the defendant is challenging again the factual conclusions reached by the court in issuing the order. The Wright court rejected a similar claim, noting that “despite [the] alleged mistake of fact, the court could have imposed the same conditions on the defendant’s release pursuant to the general authority vested in it by General Statutes § 54-64a. That statute affords a Superior Court judge broad discretion in fixing nonfinancial conditions of a defendant’s release for the purpose of ensuring, inter alia, the safety of others, including restrictions on entering a specific place of abode and on having contact with an alleged victim of the crime with which the defendant has been charged. ” State v. Wright, supra, 273 Conn. 430. We conclude, therefore, that the defendant’s argument fails.

In the alternative, the defendant contends that the transparently invalid order exception should apply because the harassment statute, § 53a-183, does not apply to calls made to cellular telephones, and, therefore, his arrest on charges of having violated § 53a-183 was unlawful. In its oral decision, the court concluded that “[a]s to whether § 53a-183 applies to cellular [telephones], the defendant has provided no authority, either case law or a legislative history, to support the argument that [cellular telephones] are not synonymous with telephones for purposes of this particular statute, that is, the harassment statute.” The defendant is challenging the legal conclusion of the court that cellular telephones are covered by the prohibitions found in § 53a-183. Our review is, therefore, de novo. See State v. Orr, 291 Conn. 642, 650, 969 A.2d 750 (2009) (“[b]ecause statutory interpretation is a question of law, our review is de novo” [internal quotation marks omitted]).

In construing § 53a-183, we are mindful that General Statutes § l-2z provides that “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) State v. Lewis, 113 Conn. App. 731, 743, 967 A.2d 618, cert.1 granted on other grounds, 292 Conn. 906, 973 A.2d 105 (2009). “In seeking to determine that meaning . . . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Fontaine, 112 Conn. App. 190, 196, 962 A.2d 197, cert. denied, 290 Conn. 921, 966 A.2d 238 (2009).

We therefore begin our analysis by examining the text of the statute. Section 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.” Section 53a~183 (a) (3) instructs us that it applies to the making of “a telephone call . . . .” General Statutes § 53a-183 (a) (3). There is nothing in the statute indicating that it is restricted to telephone calls made only on certain types of communication devices.

Although the text of § 53a-183 does not specifically name communications via cellular telephones as being prohibited means of harassment, we note that “[t]he fact that . . . relevant statutory provisions are silent . . . does not mean that they are ambiguous. . . . Significantly, [t]he test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks omitted.) State v. Orr, supra, 291 Conn. 653-54.

We emphasize that “our case law is clear that ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation.” (Emphasis added.) Id., 654. The official comments to § 53a-183 by the commission to revise the criminal statutes state: “The basic rationale behind this section is the prohibition of acts which are intended to annoy, alarm, or harass an individual rather than the public in general.” Commission to Revise the Criminal Statutes, Penal Code comments, Connecticut General Statutes Annotated (West 2007) § 53a-183, p. 803. It is not reasonable to interpret § 53a-183 as prohibiting the making of telephone calls intended to harass, annoy or alarm only if they are made to a land line telephone but not if they are made to a cellular telephone. We conclude that the language in § 53a-183 is not ambiguous and is intended to encompass harassment via cellular telephone, and we therefore do not conduct any extratextual analysis. See State v. Orr, supra, 291 Conn. 660.

The defendant has made no showing that the court acted in such excess of authority that he could not be expected to comply with the order, nor has he shown that any emergency circumstances exist to excuse his compliance. We therefore conclude that the transparently invalid exception is inapplicable in both instances.

II

The defendant’s final claim is that the court improperly denied his motion for a judgment of acquittal because his conviction was based on insufficient evidence. He asserts that there was insufficient evidence to support his conviction of criminal violation of a protective order, falsely reporting an incident concerning serious physical injury or death, making a false statement in the second degree and disorderly conduct. We disagree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) State v. Smith, 110 Conn. App. 70, 75, 954 A.2d 202, cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). “[W]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Jason B., supra, 111 Conn. App. 363.

A

The defendant asserts that the state did not proffer sufficient evidence to establish that (1) he had the requisite intent to violate the protective order or (2) he was actually present on or near the victim’s property on the date in question. Section 53a-223 (a) provides: “Aperson is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c, or section 54-lk or 54-82r has been issued against such person, and such person violates such order.” “[P]roof of the criminal violation of a protective order pursuant to § 53a-223 merely requires the issuance of a protective order against the defendant pursuant to § 46b-38c (e) . . . and the defendant’s violation of that order.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 76, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

“[W]e have explained previously [that] a violation of a protective order does not incorporate the specific intent to harass. . . . All that is necessary is a general intent that one intend to perform the activities that constitute the violation.” (Internal quotation marks omitted.) State v. Hasfal, 94 Conn. App. 741, 745, 894 A.2d 372 (2006). The state need not prove that the defendant had the specific intent to violate the protective order; rather, the state must set forth evidence that the defendant’s conduct that was in violation of the order was intentional and not the result of a mistake or accident. State v. Fagan, supra, 280 Conn. 77-78. On the basis of our review of the record, we conclude that there was sufficient evidence from which the jury reasonably could have found that the defendant intended the behaviors proscribed by the protective order. Likewise, we conclude that there was sufficient evidence presented to the jury from which it reasonably could have found that the defendant was present on or near the victim’s property.

B

The defendant next claims that the evidence was insufficient to support his conviction of falsely reporting an incident concerning serious physical injury or death under § 53a-180b and making a false statement in the second degree in violation of § 53a-157b (a). Section 53a-180b (a) provides: “A person is guilty of falsely reporting an incident concerning serious physical injury or death when such person commits the crime of falsely reporting an incident in the second degree as provided in section 53a-180c and such false report is of the alleged occurrence or impending occurrence of the serious physical injury or death of another person.” Section 53a-157b (a) provides: “A person is guilty of false statement in the second degree when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized bylaw, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.”

We conclude that the jury reasonably could have found that the defendant knew that his report regarding Thibault’s allegedly suicidal telephone call to him was baseless. The evidence indicated that the defendant signed a sworn statement attesting that he had received the telephone call from Thibault, and the jury reasonably could have found that he gratuitously reported to a law enforcement agent an incident involving serious physical injury or death that did not in fact occur.

C

The defendant’s final insufficiency claim relates to his conviction of disorderly conduct in violation of § 53a-182 (a), which provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (2) by offensive or disorderly conduct, annoys or interferes with another person . . . .” Although we acknowledge that the finder of fact must find every element of the statute proven beyond a reasonable doubt to find the defendants guilty of the offense charged; see State v. Muckle, 108 Conn. App. 146, 151, 947 A.2d 972, cert. denied, 288 Conn. 909, 953 A.2d 654 (2008); the defendant neglects to specify the particular element of the crime of disorderly conduct for which the state allegedly failed to set forth sufficient evidence. We decline, therefore, to review his claim due to inadequate briefing. See, e.g., In re S.D., 115 Conn. App. 111, 123-24, 972 A.2d 258 (2009) (“[ljegal analysis rather than mere abstract assertions is required to avoid abandoning appellate claims by failing to brief them”).

The judgments are affirmed.

In this opinion the other judges concurred.

       The protective order did permit the parties to be present together in small claims court as needed to resolve pending litigation.

       Thibault also had received two telephone calls from the defendant on March 28 and 29, 2003, which she reported to the police.

       A second family violence protective order was issued on January 5,2004, that again, among other prohibitions, forbade the defendant from having any contact in any manner with Thibault and from coining within 100 yards of her.

       The defendant was found guilty of the charge of violating the 2003 protective order, relating to the incident on June 17, 2003, when Thibault came home to find the defendant standing in her driveway.

       The defendant moved to dismiss the charges pursuant to Practice Book § 41-8.

       General Statutes § 46b-38a (1) provides: “Family violence means an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear or imminent physical harm, bodily injury or assault between family or household members. Verbal abuse or argument shall not constitute family violence unless there is a present danger and the likelihood 1hat physical violence will occur.” (Internal quotation marks omitted.)
      General Statutes § 46b-38c provides in relevant part.: “(d) In all cases of family violence ... [a] judge of the Superior Court may consider and impose the following conditions to protect the parties, including, but not limited to: (1) Issuance of aprotective order pursuant to subsection (e) of this section .... Such protective order shall be an order of the court ....
      “(e) A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant, including, but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the family dwelling or the dwelling of the victim. . . .”

       General Statutes § 53a-223 (a) provides in relevant part: “A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c . . . has been issued against such person, and such person violates such order.”

       Practice Book § 38-13 provides in relevant part: “The judicial authority shall have the power to modify or revoke at any time the terms and conditions of release . . . .”
      General Statutes § 54-63g provides in relevant part: “Any accused person . . . aggrieved by an order of the Superior Court concerning release, may petition the Appellate Court for review of such order. Any such petition shall have precedence over any other matter before said Appellate Court and any hearing shall be heard expeditiously with reasonable notice.”

       General Statutes § 53a-180c (a) provides: “A person is guilty of falsely reporting an incident in the second degree when, knowing the information reported, conveyed or circulated to be false or baseless, such person gratuitously reports to a law enforcement officer or agency (1) the alleged occurrence of an offense or incident which did not in fact occur, (2) an allegedly impending occurrence of an offense or incident which in fact is not about to occur, or (3) false information relating to an actual offense or incident or to the alleged implication of some person therein.”

       The defendant also maintains that he has been deprived of a fundamental constitutional right because the court failed to instruct the jury on the first amendment limitations of § 53a-182 (a) (2). He provides no analysis of this constitutional claim, and we therefore decline to afford it review.