author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. CAMERON MOUNDS
    (AC 28126)
    Bishop, Lavine and Robinson, Js.

      Argued May 19
    officially released August 26, 2008

      Robert E. Byron, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert Diaz, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Cameron Mounds, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress and (2) rejected his claims that the state, during jury selection, exercised certain peremptory challenges in a racially discriminatory manner. We affirm the judgment of the trial court.

I

The defendant filed a motion to suppress items seized by Hartford police officers on January 28, 2006. In his motion, the defendant asserted that the evidence was obtained as a result of an illegal warrantless arrest and that the subsequent warrantless search of his person and automobile lacked probable cause.

On June 5, 2006, the court, in an oral ruling, denied the motion to suppress. The court found the following relevant facts. On January 28,2006, at 7:30 p.m., Officers Luis Poma and Abhilagh Pillai of the Hartford police department, responded to information received about activity at 230 Mather Street in Hartford. The owner had a standing complaint with the police to investigate any unauthorized activity on his property. The building was posted with “no loitering” signs and at least one “no trespassing” sign in a manner reasonably likely to come to the attention of intruders. As Poma approached the building, he could see the signs, and he also saw a van in the narrow driveway of the building, the engine running but with the lights off. There was one occupant in the van. The officers drove their cruiser into the driveway in such a manner that the defendant was not free to leave.

The officers approached the vehicle and identified the defendant as the driver of the van. The defendant was acting nervously, looking over his shoulder and making furtive movements with his right hand toward the back of his waist. When the officers asked why the defendant was there, he did not answer. When the officers then asked the defendant to show his hands, he did not comply, and the vehicle at some point started to move. At this juncture, the defendant was again told to show his hands or risk arrest. Still, he did not comply, and he refused to get out of the van. When the officers removed the defendant from the vehicle, he began flailing his arms as the officers arrested him for the crimes of interfering with an officer and criminal trespass in the third degree.

The record reflects that after the officers arrested the defendant, they searched his person and found a clear plastic bag tucked into the back of his waistband containing ten small bags, each filled with a white, rock like substance. The officers then searched the defendant’s vehicle where they found $605 in small bills.

The court concluded that the officers had a reasonable and articulable suspicion that the defendant was trespassing at the point that they blocked his vehicle from leaving the driveway. Additionally, the court concluded that once the officers validly stopped the defendant and attempted to speak with him, they gained probable cause to arrest him for the crimes of interfering with an officer and criminal trespass in the third degree. Therefore, the court found that because the police had probable cause to arrest the defendant, they could properly search him and his motor vehicle in conjunction with his arrest.

Following the court’s denial of the defendant’s motion to suppress and a trial to the jury, the defendant was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics and interfering with an officer. He was sentenced to the custody of the commissioner of correction for twenty years, execution suspended after twelve years, with a five year mandatory minimum, and five years probation. This appeal followed.

The defendant claims that the court incorrectly denied his motion to suppress evidence seized from his person and his vehicle because the officers lacked a reasonable and articulable suspicion of criminal activity sufficient to conduct an investigatory detention. The defendant claims that the officers violated his constitutional rights as protected by the fourth amendment to the United States constitution, and by article first, §§ 7 and 9, of the Connecticut constitution. As part of this claim, the defendant takes issue with the court’s factual determination that Poma saw the building’s signs on the evening of January 28, 2006.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . We give great deference to the findings of the trial court because it weighs the evidence before it and assesses the credibility of witnesses.” (Internal quotation marks omitted.) State v. Linarte, 107 Conn. App. 93, 98, 944 A.2d 369 (2008).

We first address the defendant’s claim that the court made a factual determination in conjunction with its ruling on the motion to suppress that was not supported by the record. Specifically, the defendant claims that the court incorrectly determined that Poma could see signs on the building prohibiting loitering and trespassing. The record reveals that during the suppression hearing, Poma testified that he had no difficulty seeing the building’s signs on the evening in question. On recross-examination, when the defendant’s attorney asked Poma if he had any trouble seeing the signs at night, Poma replied that he could see the signs at night from the light of his vehicle’s headlights. Because the court was free to credit Poma’s testimony, we cannot conclude that this finding was clearly erroneous. Accordingly, this evidentiary challenge to the court’s findings is without merit.

Next, we address the defendant’s claim that the court incorrectly concluded that the officers had a reasonable and articulable suspicion of criminal activity justifying the investigatory detention. “The federal and state law of search and seizure in this area is well settled. Under the fourth amendment to the United States constitution and article first, [§ 7] . . . of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. . . .

“Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . Thus, [reasonable and articulable suspicion is . . . based not on the officer’s inchoate and unparticularized suspicion or hunch, but [on] the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. . . . What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances. . . . The determination of whether a specific set of circumstances provides a police officer with a reasonable and articulable suspicion of criminal activity is a question of fact for the trial court and is subject to limited appellate review.” (Internal quotation marks omitted.) State v. Hernandez, 87 Conn. App. 464, 470-71, 867 A.2d 30, cert. denied, 273 Conn. 920, 871 A.2d 1030 (2005).

The state concedes that the defendant was seized once the officers blocked the van with their vehicle. At issue, however, is whether the court properly concluded that the seizure was based on a reasonable and articulable suspicion. “A stop by the police is warranted only if the officer can point to specific and articulable facts that, together with rational inferences from those facts, reasonably warrant the intrusion.” State v. Bolanos, 58 Conn. App. 365, 368, 753 A.2d 943 (2000).

Here, the officers had ample information to support a reasonable and articulable suspicion to conduct an investigatory stop for criminal trespass. They were aware of the owner’s standing complaint to investigate any unauthorized activity at 230 Mather Street, the building was posted with “no trespassing” and “no loitering” signs, and the defendant’s vehicle was parked at 230 Mather Street in the dark, with its engine nmning and lights off. Furthermore, the officers received information that there was narcotics activity taking place at 230 Mather Street that evening, and Poma had been to the residence several times before on complaints about narcotics activity. Under these facts, the court properly determined that the officers had a reasonable and articulable suspicion that the defendant was trespassing and therefore were justified in proceeding with an investigatory stop of the defendant’s vehicle.

The next focus of our inquiry is whether there was probable cause to arrest the defendant on the criminal trespass and interfering with an officer charges. If there was probable cause to arrest the defendant for either crime, the police had the authority to search the defendant and the van in conjunction with his arrest.

“Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal.” (Internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 433, 944 A.2d 297 (2008). “The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test.” (Internal quotation marks omitted.) State v. Hedge, 59 Conn. App. 272, 278, 756 A.2d 319 (2000). “With respect to warrantless arrests . . . the trial court, in determining whether the arrest is supported by probable cause, is required to make a practical, nontechnical decision whether, under all the circumstances . . . there is a fair probability that the defendant had committed or was committing a felony.” (Internal quotation marks omitted.) Id. It is also important to note that “[t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.” (Internal quotation marks omitted.) State v. Holloman, 20 Conn. App. 521, 527-28, 568 A.2d 1052, cert. denied, 214 Conn. 805, 573 A.2d 317 (1990).

As noted, the property at 230 Mather Street was posted with “no parking,” “no loitering” and “no trespassing” signs. The officers repeatedly asked the defendant why he was parked in the private drive, but the defendant did not answer their questions. Poma testified that the defendant appeared nervous and kept looking over his shoulder while the police questioned him. Additionally, while the officers were questioning him, the defendant made furtive movements with his right hand, sliding it behind his back toward his waistband. The officers repeatedly asked the defendant to show his hands, yet he failed to comply and started moving his van forward. Poma told the defendant that if he did not stop his vehicle and show his hands, he would be placed under arrest for trespassing. Again, the defendant did not comply. The defendant was then told to exit the vehicle and that he was under arrest on the interfering with an officer and criminal trespass charges. The defendant refused to exit the vehicle and began flailing his arms when the officers attempted to remove him. Thus, at this juncture, the officers had probable cause to arrest him for the crime of interfering with an officer. See State v. Aloi, 280 Conn. 824, 911 A.2d 1086 (2007) (interfering interpreted broadly to prohibit any act that would amount to hampering police in performance of their duties).

Because the arrest on the charge of interfering with an officer was lawful, the search that was incident to that arrest was valid under the circumstances. See State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999) (warrantless search incident to lawful arrest valid). Accordingly, the court properly denied the defendant’s motion to suppress.

II

The defendant, who is African-American, next claims that the state, in selecting the jury, improperly used peremptory challenges to strike two African-American venirepersons in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We conclude that the defendant waived his right to raise a Batson claim on appeal.

The following additional facts are relevant to the defendant’s claim. Jury selection for the defendant’s trial began on May 22, 2006, and concluded on June 22, 2006. The court granted each party eight peremptory challenges. Of those, the state used eight, two of which pertained to venirepersons both the prosecution and defense perceived to be African-Americans. Once the prosecutor exercised peremptory challenges to excuse these individuals, the defendant challenged the prosecutor’s action as discriminatory under Batson. The court then asked the state to provide its reasons for the peremptory challenges. The state explained that the first venireperson was excused because she did not understand the difference between “beyond all doubt” and “beyond a reasonable doubt.” The second venireperson was excused because he indicated that he had reservations about sending someone to jail and because twenty-six years ago he had been convicted as an accessory, an experience that the state believed would affect his judgment. The court rejected the defendant’s Batson challenges, concluding that in each instance, the state had provided credible, race neutral reasons for exercising its peremptory challenge. The defendant did not contest the court’s acceptance of the prosecutor’s explanations regarding either potential juror.

“[T]he United States Supreme Court recognized [in Batson] that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole .... The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race ....

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual .... [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. . . .

“We have identified several specific factors that may indicate that [a party’s removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race [or gender] as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender]. . . .

“In assessing the reasons proffered in support of the use of a peremptory challenge . . . [a]n explanation . . . need not ... be pigeon-holed as wholly acceptable or wholly unacceptable . . . and even where the acceptability of a particular explanation is doubtful, the inquiry is not at an end. In deciding the ultimate issue of discriminatory intent, the judicial officer is entitled to assess each explanation in light of all the other evidence relevant to prosecutorial intent. The officer may think a dubious explanation undermines the bona fides of other explanations or may think that the sound explanations dispel the doubt raised by a questionable one. As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances. . . .

“Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is 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.” State v. Hamlett, 105 Conn. App. 862, 876-78, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

In this instance, once the state set forth its reasons for excusing both venirepersons, the defendant made no effort to convince the court that the reasons were pretextuai. Therefore, the only logical inference that the court could have drawn from the defendant’s silence was that he accepted the state’s neutral reasons for the peremptory challenges. See id. The defendant’s failure to claim that the reasons given by the state were pretextuai prevents him from attempting to make that claim for the first time on appeal. As we have often stated, we will not consider claims not made before the trial court and raised for the first time on appeal. See McGuire v. McGuire, 102 Conn. App. 79, 87, 924 A.2d 886 (2007) (where party fails to raise claim in trial court, it is unfair to consider it on appeal).

The judgment is affirmed.

In this opinion the other judges concurred.

       We recognize that the designation “African-American” may have racial, ethnic and place of origin connotations and that many individuals referred to as African-Americans may, in fact, trace their origins to places other than Africa. Because, in this case, both the prosecution and defense perceived the venirepersons in question to be African-American, and the defendant is African-American, we need not, in this instance, further discuss whether either venireperson was, in fact, an American of African ancestry as opposed to lineage pointing to another geographic area.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    IN RE KARL J.

    (AC 28161)
    DiPentima, Gruendel and Mihalakos, Js.
    Argued April 23
    officially released September 2, 2008

      David B. Rozwaski, for the appellant (respondent mother).

      Barry A. Charles, for the appellee (respondent father).

      David J. Reich, for the appellee (minor child).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

DiPENTIMA, J.

The respondent mother appeals from the trial court’s judgment awarding custody and guardianship of her minor child, Karl J., to the child’s paternal aunt and uncle. On appeal, the respondent argues that the court improperly determined that it would be in the best interest of the child to remain in the care and custody of his paternal aunt and uncle. We affirm the judgment of the trial court.

The following facts and procedural history inform our disposition. The child was bom in 1995. From the date of his birth, the respondent served as his primary caregiver. In April, 2000, the respondent’s financial difficulties led her to move into a hotel with the child and his older sibling. On October 27,2000, following a report that the respondent had left her children alone while she was working the third shift, the petitioner, the commissioner of children and families, issued a ninety-six hour administrative hold and removed the children from her care. See General Statutes § 17a-101g. The petitioner subsequently filed a neglect petition. On October 30, 2000, the court granted an ex parte order for temporary custody to the petitioner. On November 16, 2000, the court adjudicated the child neglected, vacated the order of temporary custody, placed him in the custody and guardianship of the father and ordered protective supervision from November 16, 2000, to May 16, 2001. On March 22, 2001, the court vacated the order of protective supervision, which gave the father full custody and guardianship without the involvement of the department of children and families. Eight months after the court had awarded custody and guardianship to the father, the child was sexually abused by a family member. After learning of the sexual abuse, the father asked his sister and her husband to care for the child. The child began living with his paternal aunt and uncle in Florida in August, 2001. The respondent had not had contact with the child since approximately February, 2001, and learned of his sexual abuse and subsequent move to Florida in an October, 2001 newspaper article.

On December 7,2004, the respondent filed an application for reinstatement of guardianship. The respondent subsequently filed a motion for immediate visitation and a motion for immediate return of the child. The father and the child, through counsel, objected to both motions. On April 20, 2005, the parties stipulated that the child would begin therapy to determine the appropriateness of visitation with the respondent. On July 21, 2005, the child, through counsel, filed a motion for immediate temporary custody to be granted to the aunt and uncle, to which the respondent objected.

On November 17,2005, the father petitioned the court to transfer custody and guardianship to the aunt and uncle and to consolidate such action with the respondent’s motion for reinstatement. The respondent objected. The motions were consolidated, and a trial was held over seven days from December 5, 2005, to June 5, 2006. On September 15, 2006, the court, by memorandum of decision, denied the respondent’s motion and granted the father’s motion, thereby transferring custody and guardianship of the child to the aunt and uncle. This appeal followed. Additional facts will be set forth as necessary.

The respondent claims that the court improperly denied her motion for reinstatement of guardianship and improperly granted the father’s motion for transfer of guardianship to the aunt and uncle. Specifically, the respondent argues that it is in the best interest of the child to be returned to his mother given that the circumstances that necessitated his original removal from her care no longer exist. We disagree.

We begin with the standard of review. “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usrnp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) In re Patricia C., 93 Conn. App. 25, 32-33, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006); In re Haley B., 81 Conn. App. 62, 67, 838 A.2d 1006 (2004); see also Practice Book § 35a-16. “[G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on rehable evidence.” (Citation omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 397-98, 852 A.2d 643 (2004).

General Statutes § 46b-129 (m) provides in relevant part that “a parent . . . may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. . . .” Although the court here found that the reasons for the commitment no longer existed, the court concluded that it was in the best interest of the child to remain with his aunt and uncle. The court’s conclusion that the reasons for the commitment no longer exist is not at issue in this appeal. Thus, we turn our attention to the best interest of the child.

In its memorandum of decision, the court credited the testimony of Howard Benditsky, a licensed clinical psychologist who evaluated the respondent. Benditsky noted that the respondent was more concerned about being reunited with her child than with any possible trauma the child might suffer as a result of being taken out of his home in Florida. Benditsky concluded that given the child’s psychological history and desire to remain in Florida, reunification and visitation with the respondent should occur only after there has been some time for the relationship to be reestablished.

The court also relied on the testimony of Cynthia L. Hodges, a mental health therapist who specializes in the treatment of victims of sexual assault and who treated the child from October, 2001, to February, 2002. She explained that the child underwent treatment for developmental delays affecting his speech, motor function, vision and hearing and has been diagnosed with reactive attachment disorder. Hodges also testified that the child had bonded with his aunt and had made significant improvements in speech and behavior under his aunt’s care. It was her opinion that it would be in the child’s best interest to remain with the aunt and uncle because it would give him an important sense of permanency, and a return to Connecticut likely would be traumatic enough to trigger a relapse of the child’s sleep disturbances and aggressive behavior.

The court credited the testimony of Gloria Accetta, who had been appointed as the child’s guardian ad litem by the Florida county coordinator for the guardian ad litem program. Accetta testified that she had seen significant improvements in the child’s health and well-being since he had been living with the aunt and uncle. She also recommended that the child remain with his aunt and uncle. The court also credited the testimony of the aunt. She testified that she had left her job to care for the child on a full-time basis and frequently would drive 150 to 200 miles per week to take him to his therapy and medical appointments. The aunt stated that she was not opposed to gradual contact with the respondent as long as it would not prove detrimental to the child.

Finally, the court relied on the testimony of David C. Dohm, a mental health specialist who evaluated the child. Dohm diagnosed the child with developmental disorder, reactive attachment disorder and attention deficit disorder. He testified that the child had made progress in dealing with his reactive attachment disorder due to the stability in his current environment and the aunt’s “invaluable” care. He opined that it would not be healthful for the child to return to Connecticut and that any contact with the respondent would threaten the child’s stability significantly and the progress he had made.

As our review of the evidence before the court reveals, there were ample facts on which it could conclude that it was in the best interest of the child to remain with his aunt and uncle. The evidence before the court showed that the child had made significant improvements in his mental, physical and emotional health while in the care of his aunt and uncle. Additionally, the court noted that the child referred to his aunt and uncle as “mom and dad” and adamantly expressed a desire to remain in Florida with them. Although our Supreme Court has recognized that “the best interests of the child are usually served by keeping the child in the home with his . . . parents”; In re Juvenile Appeal (83-CD), 189 Conn. 276, 285, 455 A.2d 1313 (1983); the court also has noted consistently “the importance of permanency in children’s lives.” In re Jeisean M., supra, 270 Conn. 400.

Cognizant of our deferential standard of review, we conclude that the court’s decision to deny the respondent’s motion for reinstatement of guardianship and to grant the father’s motion for transfer of custody and guardianship was not an abuse of discretion. The court reasonably concluded that it was in the child’s best interest to remain with his aunt and uncle.

The judgment is affirmed.

In this opinion the other judges concurred.

       When the petitioner, the commissioner of children and families, instituted neglect proceedings concerning the child, both the mother and father of the child were named and served as respondents. In the present action, only the respondent mother is appealing, and, thus, for purposes of this appeal, all references to the respondent herein shall refer solely to the mother.

       Shortly after taking the child to Florida, the aunt and uncle reported the abuse to the Florida department of children and families. On September 19, 2001, the Florida department of children and families filed a shelter petition and subsequently obtained an order awarding custody to the aunt. The Florida department of children and families then moved to terminate the parental rights of both the respondent and the father. The father voluntarily surrendered his parental rights, and the Florida court terminated the respondent’s parental rights on August 27,2003. The respondent appealed, and the District Court of Appeals of the State of Florida, Fifth District, reversed, holding that the court lacked jurisdiction. D.S. v. Dept. of Children & Families, 888 So. 2d 85 (Fla. App. 2004). On remand, the trial court vacated the termination of parental rights with respect to both the respondent and the father. On March 16, 2005, the Connecticut Superior Court determined that it had jurisdiction over the respondent’s motion.

       On June 20, 2006, the respondent filed a motion for emergency relief, seeking the immediate return of the child. The respondent represented that the aunt could no longer care for the child due to a change in her living circumstances. The father and the child both objected. On June 27,2006, the court denied the emergency motion and issued an order granting temporary custody to the petitioner. On July 6, 2006, the court returned temporary custody to the aunt pending a decision in the underlying case. The respondent then filed a motion to enlarge the trial proceedings or to open the trial for new evidence. On July 13, 2006, all of the parties stipulated that the court could consider the fact that the aunt had represented that she could no longer care for the child without a court order granting her custody.

       The child, through counsel, filed a brief in which he argued that the judgment should be affirmed. The petitioner has not taken a position in this appeal and elected not to file a brief.

       In her testimony, Hodges explained that reactive attachment disorder is “markedly disturbed and developmental^ inappropriate social relatedness . . . that begins before the age of five years and is associated with grossly pathological care.”


text:
    STEPHEN CLINCH v. GENERALI-U.S. BRANCH
    (AC 28784)
    DiPentima, Graendel and Lavery, Js.

      Argued March 19
    officially released September 2, 2008

      John T. Scully, with whom, on the brief, was Patrick J. Flaherty, for the appellant (plaintiff).

      Michael D. Chefitz, pro hac vice, with whom were Dawn M. Neborsky and, on the brief, Michael J. Smith and Kendra A. Christensen, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Stephen Clinch, appeals from the judgment of the trial court rendered following the granting of a motion for summary judgment in favor of the defendant, Generali-U.S. Branch. The plaintiff claims that the court improperly determined that the defendant had no duty to defend its insured in an action that the plaintiff had brought against the insured and, thus, improperly failed to grant his motion for summary judgment and granted the defendant’s motion. We affirm the judgment of the trial court.

On or about September 20, 1997, the plaintiff was a customer and business invitee of America’s Cup Restaurant in Middletown. While at the restaurant, three men, who were under the influence of alcohol, confronted the plaintiff. During the confrontation, one of the men struck and hit the plaintiff. After this altercation, the plaintiff and the three men were ejected from the restaurant into its parking area where the altercation continued. The plaintiff was struck in the back of his head, causing him to fall, strike the ground and suffer further injuries. On July 9, 1999, the plaintiff commenced a lawsuit against Waterfront Restaurants, Inc., Southern Ties, Inc., and Harbor Park Associates Limited Partnership, all doing business as America’s Cup Restaurant (insured), as well as Uokuni Connecticut, Inc., Ventry, Inc., John O’Callahan, Richard Vasile and Frank Gionfriddo. The plaintiffs complaint alleged negligence in the first count and claims of wilful, wanton and reckless conduct in the second count. On March 26, 2003, the court rendered judgment in that case in favor of the plaintiff against the insured and Frank Gionfriddo, an employee of the insured, in the amount of $320,609.85 plus costs in the amount of $674.70.

At the time of the incident, the insured carried a general liability insurance policy and a liquor liability insurance policy issued by the defendant. Both of those policies contained exclusion provisions for assault and battery. The defendant did not provide a defense to the insured in the original lawsuit.

The plaintiff brought the present action against the defendant for the defendant’s refusal to defend its insured. In his complaint, the plaintiff claimed that because the judgment had not been satisfied within thirty days after it was rendered, pursuant to General Statutes § 38a-321, he, as a judgment creditor, became subrogated to all the rights of the defendant’s insured. The plaintiff claimed that he therefore had a right of action against the defendant to recover the judgment rendered against the defendant’s insured, including costs and statutory interest due thereon pursuant to General Statutes § 37-3b.

On February 7, 2006, the plaintiff filed a motion for summary judgment. On April 25, 2006, the defendant filed a cross motion for summary judgment. The motions addressed the issue of the defendant’s duty to defend the insured as to both counts in the underlying action. The court held a hearing on the motions on January 29,2007, and issued a memorandum of decision filed January 31, 2007, in which the court denied both motions for summary judgment with regard to the first count in the underlying action alleging negligence and granted the defendant’s cross motion for summary judgment as to the second count alleging wilful, reckless and wanton conduct. Both parties moved for reconsideration, and the defendant moved for reargument. A hearing was held on March 21, 2007, during which the court ordered the parties to brief the issue of whether an assault must be intentional. On April 17, 2007, the court rendered summary judgment in favor of the defendant as to the first count. This appeal followed.

The plaintiff claims that the court improperly determined that the defendant did not have a duty to defend. Specifically, the plaintiff argues that the defendant had a duty to defend because allegations in the complaint possibly could have fallen within the coverage of the policy and that the defendant’s failure to defend was a breach of this duty. We disagree.

Before addressing the plaintiffs arguments, we set forth the applicable standard of review of a trial court’s ruling on motions for summary judgment. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003). In the present case, the trial court was presented with cross motions for summary judgment based on undisputed facts. Therefore, our review is plenary and we must determine whether the court’s conclusions are legally and logically correct and are supported by the record. See id., 252.

“[A]n insurer’s duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint. . . . The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability. ... It necessarily follows that the insurer’s duty to defend is measured by the allegations of the complaint. . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. . . . Indeed, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. ... On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend.” (Citations omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 398-99, 757 A.2d 1074 (2000). Our Supreme Court has concluded consistently that “the duty to defend means that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury covered by the policy; it is the claim which determines the insurer’s duty to defend . . . .” (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005).

“In ascertaining the meaning of the terms of the insured’s policy, we also are guided by well established principles. The [interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy. . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. ... A necessary predicate to this mle of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous. . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be constmed in a vacuum. . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy.” (Citation omitted; internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., supra, 254 Conn. 399-400.

The plaintiff focuses his argument on the language in Community Action for Greater Middlesex County, Inc., that states that “[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.” (Emphasis added; internal quotation marks omitted.) Id., 399. Thus, in determining whether the defendant had a duty to defend, we must examine both the language of the applicable policies and the allegations of the underlying complaint. Both the general liability policy and the liquor liability policy that the defendant issued to the insured contained exclusion provisions for assault and battery. The general liability policy’s assault and battery exclusion reads: “In consideration of the reduced premium charged, it is understood that this insurance does not apply to bodily injury, personal injury or property damage arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.

“Furthermore, there is no coverage for assault and/ or battery claim against the insured if the claim is based on the alleged failure of the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.” The liquor liability policy includes nearly identical language in its exclusion. Thus, the policy language clearly sets forth exclusions for injuries arising from assault or battery or from any acts or omissions connected to suppressing or preventing such acts of assault or battery.

Next, we turn to the plaintiffs complaint in the underlying action against the insured to determine whether the plaintiff stated facts that bring the injury within the coverage. The plaintiff asserts that when the paragraphs of the first count are read in isolation, there are allegations that do not fall within the assault and battery exclusions and that the first count does not state that all of the severe and painful injuries were caused by the plaintiff being punched and struck. The plaintiff also points out that the terms “assault,” “battery” and “assaulted” were not used in the complaint. The plaintiff argues that the defendant, therefore, failed to carry its burden of proving that the assault and battery exclusion applied to every individual allegation contained in his complaint.

The plaintiff asks us to view his complaint too narrowly. “In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be constmed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

In the first count of his complaint, the plaintiff alleged that the insured was negligent, and, as a result of this negligence, the plaintiff was injured. The plaintiff specifically alleged that “as a direct result of the [insured’s] failure to maintain its restaurant in a reasonably safe condition, the plaintiff, Stephen Clinch, and two of his companions, were confronted inside the restaurant by a group of three males who were under the influence of alcohol, and the plaintiff was struck and hit inside the [insured’s] restaurant by one of these males.” The plaintiff also alleged that “[a]s a result of the negligence and carelessness of the [insured], their agents, servants or employees, as aforesaid, the plaintiff was caused to be punched and struck inside the [insured’s] restaurant and in the parking lot area of the restaurant and he was caused to suffer injuries . . . .” The plaintiff pleaded thirteen allegations of negligence, which proximately caused the plaintiffs injuries and losses, none of which mentions assault and battery.

Reading the complaint in its entirety, as we must, the only cause of action alleged in the first count is for injury arising from assault and battery that stemmed from the insured’s negligence. The plaintiff argues that on the basis of the language of the complaint, one could entertain a variety of causes for some of his injuries unrelated to assault and battery. The negligent acts that he describes, however, are tied inextricably by the language of the complaint to assault and battery. He describes no other manner in which he sustained his injuries. Thus, we conclude that the only causes reasonably construed from the plaintiffs complaint, that is to say, that do not unreasonably contort the meaning of the language of the complaint, are for injury arising out of assault and battery.

The plaintiffs next argument is that the defendant’s assault and battery exclusion is ambiguous and inapplicable. The plaintiff argues that neither assault nor battery are defined in the insurance policies issued by the defendant and that because they are susceptible to more than one interpretation, the court must adopt the construction that sustains his claim. See Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). He further asserts that the allegations in the first count do not establish the requisite “intentional” conduct necessary to constitute an assault and battery within the meaning of the defendant’s policy exclusion.

This argument fails for two reasons. First, “[i]n this state an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently.” (Internal quotation marks omitted.) Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985). Thus, intentional conduct is not required for an assault and battery. Second, our Supreme Court has held that a nearly identical assault and battery exclusion was not ambiguous and was intended to exclude all assaults and batteries from coverage. See Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992). In examining the words of the exclusions at issue in this case and according the words of the policies’ exclusions their natural and ordinary meaning, we conclude that, as in Kelly, it was the intent of the parties, the defendant and the insured, to exclude all assaults and batteries from coverage. Thus, we conclude that the assault and battery exclusions are not ambiguous and that, having already determined that the plaintiffs claims were ones alleging assault and battery, the exclusions are applicable to the plaintiffs claims. Therefore, the defendant had no duty to defend, and the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 38a-321 provides in relevant part: “Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. . . . Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment." (Emphasis added.) See also Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 198, 663 A.2d 1001 (1995) (statute intended to give judgment creditor same rights under policy as insured).

       At oral argument before this court, the plaintiff and the defendant agreed that only count one was the subject of the appeal and that the operative memorandum of decision is that filed April 17, 2007.

       The liquor liability exclusion reads: “In consideration of the reduced premium charge, it is agreed and understood that this insurance does not apply to bodily injury, or property damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of the insured, his employees, patrons or any other person.
      “Furthermore, there is no coverage for assault and/or battery claim against the insured if the claim is based on the alleged failure [of] the insured to protect individuals whether or not patrons, or involves the negligent selection, training, employment, supervision or control of any individual.”

       Paragraph seven of the plaintiffs complaint alleges: “The plaintiffs injuries and losses were proximately caused by the negligence and carelessness of the defendants, their agents, servants or employees in one or more of the following ways:
      “a. They failed to maintain the restaurant in a reasonably safe condition;
      “b. They continued to serve alcoholic beverages to customers and patrons of its restaurant who they knew or should have known were under the influence of alcohol;
      “c. They failed to properly protect the plaintiff from the dangers to which he was exposed;
      “d. They improperly ejected the plaintiff from its restaurant and caused him to suffer injuries in the parking lot of the restaurant;
      “e. They failed to properly train its employees regarding the dangers of serving alcoholic beverages to persons who were under the influence of alcohol;
      “f. They failed to properly train its employees regarding how to prevent, break up and control altercations that developed inside and outside the restaurant;
      “g. They failed to hire and staff the restaurant with sufficient adequately trained personnel in order to protect the safety of the customers of the restaurant;
      “h. They failed to properly supervise and control its restaurant and the parking lot area of the restaurant in order to prevent the injuries that the plaintiff was caused to suffer;
      “i. They failed to properly supervise and control its employees who were given authority and responsibility for maintaining the restaurant in a reasonably safe condition;
      “j. They failed to adopt adequate policies for safely ejecting disorderly customers from the restaurant and the parking lot area of the restaurant;
      “k. They failed to adopt adequate policies for properly controlling the service of alcohol to customers and employees of the restaurant;
      “1. They placed a convicted felon with a history of violence and drug abuse in a position of authority and responsibility at the restaurant, and they allowed this convicted felon to use his position to cause injury to the plaintiff; and
      “m. They failed to warn the plaintiff and other customers of the restaurant about the dangers to which they were exposed.”

       The plaintiff argues, for example, that the complaint could be read to allege a premises liability claim and that the language could be interpreted to mean that he was struck by a falling object. The plaintiff also argues that because he chose to code the case as “T 03” or “Defective Premises— Private—Other,” under the judicial branch’s coding system, the defendant should have known that he was pursuing a defective premises case and not an assault and battery case.

       The plaintiff cites DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594-95, 501 A.2d 768 (1985), for the proposition that an assault requires intentional conduct. In DeWitt, however, the court had determined that in “interpreting the word ‘assault’ in relation to those words which are syntactically connected with it in the policy,” there were multiple possible meanings of the word. Id., 595. In the context of the present insurance policy, we determine that the word “assault” clearly encompasses both the intentional and negligent meanings.


text:
    STATE OF CONNECTICUT v. SCOTT A. HALL
    (AC 27823)
    DiPentima, Robinson and Borden, Js.
    Argued February 21
    officially released September 2, 2008

      Matthew D. Dyer, assistant public defender, for the appellant (defendant).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Elizabeth M. Moseley, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Scott A. Hall, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (l). On appeal, the defendant claims that (1) as to his motion to suppress, the court improperly (a) limited his cross-examination of the state’s sole witness and (b) denied the motion to suppress, and (2) the court improperly denied his motion for a judgment of acquittal. We affirm the judgment of the trial court.

On December 28, 2005, at approximately 9 p.m., Officer Lance Podlesney of the Bristol police department observed the defendant driving a vehicle without its headlights illuminated and stopped the vehicle. When he approached the vehicle on the passenger’s side, he noticed a very strong odor of cologne, and he saw a bottle of cologne next to the defendant. Podlesney explained to the defendant why he had stopped him and asked him for his driver’s license, registration and proof of insurance. While the defendant was looking for the documents, Podlesney asked him from where he was coming. The defendant replied that he was coming from a friend’s house in Bristol. Podlesney then asked him if he had had anything to drink. The defendant hesitated, then said, “no.” Podlesney asked him if he was sure; the defendant hesitated again and repeated, “no.” During his discussion with the defendant, Podlesney noticed that the defendant’s pupils were dilated. The defendant gave Podlesney the requested documents, and Podlesney returned to his vehicle to check if there were any outstanding warrants for the defendant and to check the validity of the registration; there were no warrants, and the registration was valid.

When Podlesney returned to the defendant’s vehicle, he intentionally rephrased his previous question about whether the defendant had been drinking and asked the defendant how much he had had to drink. Podlesney testified that the defendant stated in response, “one beer, two beers, three beers and a shot.” Podlesney also asked him again from where he was coming, and the defendant responded this time that he was coming from his brother’s house in Plainville. At this time, two officers arrived to provide backup to Podlesney, and he asked the defendant to step out of the vehicle. When asked if he would consent to taking the field sobriety tests, the defendant assented. As the defendant exited the vehicle, Podlesney smelled alcohol on the defendant’s breath.

Podlesney conducted three field sobriety tests: the horizontal gaze nystagmus, the walk and turn test, and the one leg stand test. Podlesney determined that the defendant had failed all three tests. Podlesney arrested the defendant and brought him to the police station where he advised the defendant of his constitutional rights. Podlesney asked the defendant to take a Breathalyzer test and explained the consequences of both taking and not taking the test. The defendant refused to submit to the test.

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1). On April 11, 2006, the day before jury selection began, the defendant filed a motion to suppress the arrest. After a hearing, the court denied the motion on April 18, 2006, and the trial proceeded. On April 19, 2006, the jury found the defendant guilty, and, thereafter, the state filed a part B information, alleging that the defendant had been convicted of operating a motor vehicle in violation of § 14-227a on two prior dates and, therefore, was subject to enhanced penalties under § 14-227a (g). The court found the defendant guilty as a third time offender and subject to the enhanced penalties. The defendant was sentenced to three years incarceration, execution suspended after one year, and two years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first argues that the court improperly (1) restricted his cross-examination of Podlesney and (2) denied the motion to suppress. The defendant specifically argues that the court precluded a full and fair cross-examination of the state’s sole witness at the suppression hearing, thereby depriving him of due process and fundamental fairness. He then argues that even if his first claim fails, his statements as to his alcohol consumption and the results of the field sobriety tests should have been suppressed for lack of a showing of a reasonable, articulable suspicion on the part of the police to continue the investigation. We disagree with both claims.

The following additional facts and procedural history are pertinent to the resolution of the defendant’s claim. In his April 11, 2006 motion, citing provisions of the Connecticut and United States constitutions, as well as Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992), the defendant sought to suppress his arrest, “as there was no probable cause to justify [the] arrest.” During the April 18, 2006 suppression hearing, the state questioned Podlesney about his training as a police officer and the events that had transpired on December 28, 2005. Podlesney described what had happened to the point at which he returned to the defendant’s vehicle from his police vehicle and began to question the defendant again. The court then interrupted the prosecutor, suggesting that on the basis of the scope of the motion, the state need go no further in its questioning, and the state agreed.

Following this colloquy, defense counsel began to cross-examine the witness without commenting on the court’s and the prosecutor’s interpretation of the scope of the motion. Defense counsel questioned Podlesney about his training and the lighting conditions where Podlesney had stopped the defendant. Defense counsel also asked him about his questioning of the defendant on his return to the defendant’s vehicle, including the inconsistent statements made by the defendant about whether he had been drinking and where he had been. Defense counsel then returned to questioning Podlesney about his training and the equipment in his vehicle. Shortly after the return to the issue of training, the court interrupted the cross-examination, again suggesting that the questioning was moving beyond the scope of the motion. The following colloquy took place:

“The Court: [Counsel], I think we’re getting beyond the scope of the motion. Quite frankly, there are things that could be handled at the trial.
“ [Defense Counsel]: If I could be heard on that briefly. I am just trying to get to the basis of his training and investigation. Again, given that he is a relatively young police officer on the force, I’m just trying to get to what exactly his training was.
“The Court: But you don’t have to convince me what Terry stood for, and what Oquendo stood for. I am very familiar with both of these cases.
“[Defense Counsel]: I understand that, but I do have to establish a factual basis, Judge. I’m just trying to make sure that we have the training out there. I’ll move on.
“The Court: I’m not sure how much further I’m going to let you move on.
“[Defense Counsel]: Your Honor, with all due respect, the credibility of the officer here is absolutely in at a suppression hearing. And if I have facts that are being raised—
“The Court: I am not going to argue with you, [counsel]. Quoting Terry and Oquendo, it’s a stop. The other matters can come in if the stop passes the test, and that would come in at the time of the trial, not at a motion to suppress. I am denying the motion to suppress. We will stand in recess until the next matter is ready.
“[Defense Counsel]: Your Honor, just for the record, I would like you to know my objection to that.
“The Court: You certainly may.”

After a recess, defense counsel requested an articulation of the court’s denial of the motion to suppress. The court responded: “Obviously, I have the time where I can reduce it to writing, but as I said, maybe not in the most diplomatic way. Unless I’m wrong and a higher court tells me I am wrong, I think to really satisfy both elements of a Terry stop and an Oquendo stop, it has to be something a little foggy. And I think by virtue of the police officer observing the vehicle without its lights on after dark, [that] took that argument away. Whatever happened after that axe mattexs that axe for the jury to explore. But I think from the standpoint of a motion to suppress, and then what happens after the stop is made, was satisfied by the fact that according to the police officer, the lights were not on the vehicle that night, and any police officer would respond if they had the time when they saw that.”

Defense counsel then stated, “And for the record, the defense argument was at a point beyond that initial stop, partly exceeding the scope.” The colloquy continued:

“The Court: Right. I know where we were going. But I thought that was probably more of a fact for the jury to hear than the motion. But, like I said, you want to at the point in time—
“[Defense Counsel]: As long as the record’s clear, that’s all. Thank you. Other than that, I think that the defense is prepared to go forward.”

In a memorandum of decision regarding the motion to suppress filed June 1, 2006, the court further explained its denial, including the following language: “Officer Podlesney clearly had the right to stop the defendant and, in fact, would be derelict of his sworn duties if he or any other police officer allowed a driver to operate a vehicle without the vehicle’s headlights being on after dark. Following a valid stop, any observations made by a police officer, even those resulting in an arrest, are constitutionally permissible.”

“Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . [I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The court’s discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution]. . . . The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the [fact finder] with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. ... In determining whether such a violation occurred, [w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . .

“As to the defendant’s right to present a defense, [t]he sixth amendment to the United States constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . [T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, 102 Conn. App. 819, 825-27, 927 A.2d 358, cert. denied, 284 Conn. 911, 931 A.2d 932 (2007).

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Stephenson, 99 Conn. App. 591, 595-96, 915 A.2d 327, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).

As an initial matter, we address the state’s argument that the defendant’s claims are not reviewable because the scope of the motion to suppress, as pleaded and presented to the court, was limited to the initial stop by Podlesney and did not challenge the roadside testing and questioning regarding alcohol consumption. We agree that the defendant’s motion was not drafted artfully, that defense counsel did not alert the court to the scope of his motion in a prompt manner and that the court’s ruling focused primarily on the initial stop. It was after the court’s oral ruling that defense counsel finally stated that “the defense argument was at a point beyond that initial stop, partly exceeding the scope.” At that point, the court clearly was alerted to the fact that the scope of the motion went beyond Podlesney’s initial stop of the defendant. Furthermore, in its subsequent written memorandum, the court addressed, however briefly, the events following the stop. For these reasons, we disagree with the state’s argument that the defendant’s claims were unpreserved, and, accordingly, we review the defendant’s claims.

A

The defendant argues that because the court foreclosed his cross-examination of Podlesney, the suppression hearing did not comport with fundamental fairness and due process. We conclude that the court improperly determined that the events following the initial stop were not the proper subject of such a motion because of its incorrect belief that the scope of the search would be a question for the jury. Cf. State v. Januszewski, 182 Conn. 142, 149-51, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Nevertheless, the court’s decision to end the cross-examination was not an abuse of discretion.

The record reveals that when the court terminated the cross-examination of Podlesney, defense counsel sought to continue questioning the officer again about his training and his credibility with respect to the training, and defense counsel made no proffer of other evidence he wanted to adduce during cross-examination. The issue at the suppression hearing as to whether Podlesney had a reasonable, articulable suspicion to continue his investigation after the initial stop required an objective standard, not a subjective standard dependent on the training of the officer. Thus, although the scope of the search was relevant to the motion to suppress, the officer’s training was not. See State v. Batts, 281 Conn. 682, 691-92, 916 A.2d 788, cert. denied, 552 U.S. 1047, 128 S. Ct. 667, 169 L. Ed. 2d 524 (2007). Furthermore, at trial before the jury, defense counsel had the opportunity to cross-examine Podlesney fully, and our review of that cross-examination persuades us that there was nothing in it that could have affected the validity of the court’s ultimate ruling on the motion to suppress. See State v. Shifflett, 199 Conn. 718, 729, 508 A.2d 748 (1986) (“[o]n appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling . . . was made” [internal quotation marks omitted]).

Although the court based its ruling on a ground other than relevance, we determine that further testimony on the officer’s training was not relevant. See State v. Colon, 272 Conn. 106, 187-88, 864 A.2d 666 (2004) (“[W]hen the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it. . . . We may affirm the court’s judgment on a dispositive alternate ground for which there is support in the trial court record.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 546 U.S. 848; 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). Because the proffered evidence was not relevant, the defendant’s right to confrontation was not affected, and the evidence was excluded properly. See State v. Andrews, supra, 102 Conn. App. 825-27. Thus, the court’s termination of the cross-examination was not an abuse of discretion.

B

The defendant next argues that the court improperly denied his motion to suppress because the state had failed to show that there was a reasonable, articulable suspicion to expand the scope of the initial stop to conduct field sobriety tests and further questioning. We disagree. “[R]oadside sobriety tests that do not involve long delay or unreasonable intrusion, although searches under the fourth amendment, may be justified by an officer’s reasonable suspicion (based on specific, articulable facts) that the driver is intoxicated.” (Internal quotation marks omitted.) State v. Lamme, 19 Conn. App. 594, 600, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990) (addressing novel state constitutional claim). “[W]e have noted that our case law presumes that such testing is incident to the initial stop, based on the officer’s reasonable suspicion, rather than on the subsequent arrest. . . . We have concluded that such roadside testing and questioning based on a reasonable, articulable suspicion in the absence of probable cause is clearly warranted within the meaning of the Connecticut constitution.” (Citation omitted; internal quotation marks omitted.) State v. Gracia, 51 Conn. App. 4, 17-18, 719 A.2d 1196 (1998).

Here, Podlesney testified that after stopping the defendant’s vehicle for its lack of illuminated headlights, he approached the vehicle on the passenger side and noticed an overwhelming smell of cologne and observed a bottle of it next to the driver. He also testified that the defendant had hesitated in answering questions and that his pupils had been dilated. These specific facts gave rise to a reasonable, articulable suspicion for conducting the field sobriety tests and further questioning. On the basis of this testimony and our review of the entire record, we conclude that the court’s denial of the motion to suppress was legally and logically correct.

II

The defendant’s second claim is that the court improperly denied his motion for a judgment of acquittal. We disagree.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict.” (Internal quotation marks omitted.) State v. Hines, 89 Conn. App. 440, 446, 873 A.2d 1042, cert. denied, 275 Conn. 904, 882 A.2d 678 (2005).

The defendant argues that the state did not present sufficient evidence as to the scientific validity of the standardized field sobriety tests as required under State v. Merritt, 36 Conn. App. 76, 91, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995). Merritt requires that because “horizontal gaze nystagmus evidence is the type of scientific evidence that may mislead a jury in the absence of a proper foundation ... [a] three part test . . . must be satisfied before such evidence is admissible. [The] test requires that the state (1) satisfy the criteria for admission of scientific evidence, (2) lay a proper foundation with regard to the qualifications of the individual administering the test and (3) demonstrate that the test was conducted in accordance with relevant procedures.” (Citation omitted.) State v. Balbi, 89 Conn. App. 567, 573-74, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005). The defendant acknowledges that the state is no longer required to adduce evidence to satisfy the first prong for the horizontal gaze nystagmus test; see State v. Commins, 83 Conn. App. 496, 503-505, 850 A.2d 1074 (2004), aff'd, 276 Conn. 503, 886 A.2d 824 (2005); see also State v. Balbi, supra, 576-77 (concluding that determination in Commins that horizontal gaze nystagmus evidence satisfied requirements of State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), and, thus, state not required to reestablish proposition in each case); but contends that the state produced insufficient evidence to satisfy the two remaining prongs.

The defendant argues that because neither Podlesney nor Detective Garrie Dorman, one of the officers who had served as backup to Podlesney during his field testing of the defendant, produced any training manuals when they testified, the jury did not have a basis on which to determine whether the administration of the tests was adequate and whether the tests were performed within generally accepted standards. For support of this proposition, the defendant relies on language from State v. Balbi, supra, 89 Conn. App. 567, discussing the application of the Merritt test to administration of the horizontal gaze nystagmus test: “The state . . . must lay a proper foundation with regard to the qualifications of the individual administering the test and demonstrate that the test was conducted in accordance with generally accepted standards such as those specified in the relevant sections of the National Highway Traffic Safety Administration’s manual.” (Emphasis added.) Id., 577. The Merritt test, however, does not require that evidence of the criteria in the National Highway Traffic Safety Administration’s manual for the horizontal gaze nystagmus test be adduced, only evidence that the test was conducted in accordance with generally accepted standards.

At trial, the jury heard evidence regarding Podlesney’s training as a police officer and, specifically, his training in administering the field sobriety tests, about which defense counsel cross-examined him. Dorman also testified about the training police officers receive regarding drivers under the influence of alcohol or drugs. Both Podlesney and Dorman described the three field sobriety tests that Podlesney conducted. In addition, Dorman, a more experienced officer than Podlesney, having made more than fifty driving under the influence arrests himself and having served as a backup officer in hundreds of others, testified that he had observed Podlesney administer the field sobriety tests and that Podlesney had administered them properly. After observing the defendant perform the test, Dorman testified that he also concluded that the defendant had failed the horizontal gaze nystagmus test. On the basis of Dorman’s experience, his descriptions of the field sobriety tests in comparison to Podlesney’s descriptions of the tests and his conclusion that Podlesney had administered the tests properly, the jury had evidence that the test was conducted in accordance with generally accepted standards. Thus, the two remaining prongs of the Merritt test were satisfied.

To prove its case, the state was required to prove that the defendant (1) had been operating a motor vehicle and (2) that he was under the influence of intoxicating liquor or drugs while operating the vehicle. General Statutes § 14-227a (a) (1). The jury heard the following evidence: The defendant had been driving with his lights off, which, according to Podlesney’s testimony, can be a sign of an intoxicated driver; Podlesney observed that the defendant’s pupils were dilated; the defendant admitted to having one or more beers and a shot; the defendant gave conflicting accounts of where he had been prior to being stopped; the defendant failed all three field sobriety tests; and the defendant refused to submit to the Breathalyzer test. On the basis of these facts and the reasonable inferences to be drawn therefrom, the jury reasonably could have found that the state had met its burden of proving the defendant’s guilt beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       “Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball. . . . The premise of the horizontal gaze nystagmus test is that as alcohol consumption increases, the closer to the midline of the nose the onset of nystagmus occurs. To administer the test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject’s eyes. The stimulus, usually a pen or the officer’s finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject’s eyes as [the subject tracks the stimulus. The officer] looks for six clues, three for each eye, to determine whether the subject passes or fails the test. The officer looks for (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) the onset of nystagmus at an angle less than forty-five degrees in relation to the center point. A finding of four clues indicates failure of the test and is a sign of intoxication.” (Internal quotation marks omitted.) State v. Balbi, 89 Conn. App. 567, 570-71, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005).

       On appeal, the defendant claims that at the suppression hearing, he “specifically sought to suppress the results of the field sobriety tests and any statements made after the [officer’s] first contact [with the defendant] that were made without the benefit of the warnings established by Miranda v. Arizona, 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966), including but not limited to any statements made regarding the defendant’s alcohol consumption.” (Emphasis in original.)

       At that time, the following colloquy took place:
      “The Court: [Counsel], based on the scope of the motion to suppress being Terry, Oquendo, I’m not sure you need to go much further into what happened at that point in time.
      “[The Prosecutor]: That’s correct, Your Honor. And in fact, I was going to stop at this point. I believe that the motion really has to do with reasonable and articulable suspicion in order to stop the defendant.
      “The Court: [Counsel].
      “[Defense Counsel]: I would just like to be sure that [the prosecutor] has completed where she was going.
      “The Court: I’m satisfied.
      “[Defense Counsel]: Okay.”

       Dorman also observed Podlesney administer the other two field sobriety tests and independently concluded that the defendant had failed those tests as well.