author: LAVINE, J.

text:
    FRAUENGLASS AND ASSOCIATES, LLC v. HELEN ENAGBARE
    (AC 34985)
    Lavine, Bear and West, Js.
    Argued January 16
    officially released April 1, 2014

      Helen Enagbare, self-represented, the appellant (defendant).

      Robert H. Weinstein, for the appellee (plaintiff).
   Opinion

LAVINE, J.

In this action for the collection of legal fees, the self-represented defendant, Helen Enagbare, appeals from the judgment of the trial court rendered pursuant to the findings of an attorney fact finder in favor of the plaintiff, Frauenglass & Associates, LLC. On appeal, the defendant claims that the court improperly (1) failed to remand the matter to the fact finder to consider her counterclaim, (2) concluded that her counterclaim and special defenses were not relevant to its judgment, (3) exhibited bias toward her, and (4) affirmed the fact finder’s report, as it is contrary to the evidence. We affirm the judgment of the trial court.

The following procedural history underlies the present appeal. In November, 2009, the plaintiff filed an application for a prejudgment remedy. On February 20, 2010, the court, Graham, J., granted the prejudgment remedy in the amount of $20,176.93. The plaintiff then served the defendant with a summons and complaint sounding in breach of contract, quantum meruit, and unjust enrichment stemming from unpaid legal fees. The defendant denied the material allegations of the complaint and pleaded five special defenses.

The matter was referred to an attorney fact finder for a hearing. The fact finding hearing was to begin on May 16, 2011, but on May 13, 2011, the defendant filed a counterclaim. The plaintiff objected to the counterclaim’s being filed on the eve of trial without the defendant’s having secured the permission of the court, as required by the rules of practice. See Practice Book §§ 10-64 and 10-60. The fact-finding hearing, however, proceeded as scheduled. Our review of the transcript discloses that the plaintiff presented its case through the testimony of Lloyd Frauenglass, its sole member. Frauenglass’ direct testimony was of short duration. The defendant cross-examined Frauenglass for the remainder of the day and again on August 29, 2011. After a brief redirect examination of Frauenglass, the plaintiff rested. The defendant called two witnesses: Attorney Donna D. Convicer, an associate in the plaintiff law firm, and herself. Convicer testified on direct examination for the balance of August 29, 2011, and for most of the day on October 24, 2011. The defendant then testified under direct examination for the remainder of October 24, 2011, and again on January 8, 2012. The plaintiff briefly cross-examined the defendant. The defendant testified on redirect and recross-examination. Frauenglass offered brief rebuttal testimony.

The fact finder ordered the parties to file simultaneous briefs on or before February 10, 2012. On that date, the defendant filed a request for an extension of time to file her brief indicating that the fact finder had not advised the defendant’s counsel as to whether her counterclaim was accepted as operative. The request for a continuance was denied. The fact finder issued his findings of fact on June 8, 2012. In his finding of facts, the fact finder stated that the matter was heard over several days and that both parties were represented by counsel. The plaintiff put nine documents into evidence, and the defendant put four documents into evidence.

The fact finder found that the plaintiff is a law firm of which Frauenglass is the sole member and Convicer was an associate. The defendant had retained the plaintiff to represent her in what the defendant anticipated would be a nasty divorce and child custody battle. The fact finder found that the defendant ostensibly wished to be represented by a female attorney but apparently was more sensitive to cost. She had discussed her case with one other attorney before approaching the plaintiff.

The defendant signed a retainer agreement (agreement) and gave the plaintiff a retainer of $7780 on October 8, 2008. Convicer signed the agreement on behalf of the plaintiff. Pursuant to the fee schedule in the agreement, Convicer’s time was billed at $250 per hour, and Frauenglass’ time was billed at $375 per hour. Although the defendant claimed that she wanted only a female attorney to represent her, the fact finder found that her desire appears largely to have been driven by cost, as Convicer’s hourly rate was approximately two-thirds that of Frauenglass’ rate. The agreement does not state that only Convicer was to represent the defendant. Moreover, after terminating the plaintiffs representation, the defendant retained a male attorney.

The defendant’s retainer of $7780 was credited against the fees and costs she incurred during the course of the plaintiffs representation. On February 7, 2009, the defendant terminated the services of the plaintiff. At that time, the defendant owed the plaintiff $21,551.93 for legal fees and costs. The fact finder found that the case was complicated by issues of Nigerian law, child custody, and the fact that the defendant’s husband controlled all of the couple’s assets. The defendant feared that her husband would cut off financial support if he discovered that she was divorcing him and seeking custody of their children. At one point, the defendant’s husband filed a motion to dismiss the defendant’s dissolution action, claiming that he and the defendant had been divorced in Nigeria. The fact finder found that the plaintiff researched and successfully argued that issue in the dissolution action. During the fact-finding hearing, the defendant testified that she understood the agreement and had signed it voluntarily.

The fact finder found that as the divorce litigation proceeded, the defendant’s litigation desires changed. At first she wanted a divorce and custody of her children, later she wanted a separation from her husband and custody of their children, and still later she was willing to let her husband have custody of the children. By late March, 2009, a month and a half after she had terminated the plaintiff’s representation and had retained new counsel, the defendant again was residing with her husband. She was residing with her husband at the time of the hearing. Importantly, the fact finder found that the defendant’s gradual change of heart over the divorce and custody issues was fueling her retrospective claims that the plaintiff did not follow her instructions and “over-lawyered’ the case, and that Frauenglass, who had a higher hourly billing rate, did work that the defendant wanted Convicer to do. The fact finder found, however, that the defendant voluntarily had retained the plaintiff law firm, not solely Convicer.

The fact finder concluded that the present action is actually a fee dispute. The agreement provides that in such circumstances, and at the defendant’s request, the parties would submit the dispute to the fee dispute committee of the Connecticut Bar Association. The defendant failed to seek that avenue of redress. The fact finder concluded that the parties entered into an agreement, and the plaintiff represented the defendant pursuant to the agreement. In addition, the defendant apparently was satisfied with the representation. When it came time to pay the fees, however, the defendant asserted that she did not want the “quantity” or cost of the representation provided by the plaintiff.

The fact finder recommended that the court enter judgment in the amount of $21,551.93 plus $11,638.04 in interest, as provided by the agreement, for a total of $33,189.97. The fact finder also recommended that judgment enter for the plaintiff on the defendant’s counterclaim. On June 22, 2012, the defendant filed an objection to the findings of fact on the ground that the fact finder failed to address her special defenses and counterclaim. She also stated that the fact finder failed to respond to her counsel’s inquiry as to whether he had accepted the defendant’s counterclaim. The defendant asked that the court remand the matter to the fact finder so that she could present evidence with respect to her counterclaim.

On August 6,2012, the court, Hon. Richard M. Ritten-band, judge trial referee, overruled the defendant’s objection. After reviewing the findings of fact, the defendant’s special defenses, and her counterclaim, the court concluded that the fact finder addressed the issues raised by the defendant and specifically identified the paragraphs of the findings of fact relevant to the issues. On August 24, 2012, the court accepted the fact finder’s report and rendered judgment for the plaintiff in the amount of $33,189.97.

Although she was represented by counsel at trial, the defendant filed an appeal as a self-represented party. She also filed a motion for articulation pursuant to Practice Book § 66-5, which the court granted. In its articulation, the court essentially stated that the fact finder had considered all of the issues raised in the plaintiffs complaint and the defendant’s special defenses and counterclaim. The court further stated that it was not the court’s function to remand a matter to a fact finder to enable a defendant to present witnesses and new evidence that should have been produced at the hearing. Moreover, the court found that the defendant was rearguing claims she had raised before the fact finder.

I

The defendant s first claim is that the court violated her state and federal rights to due process by failing to remand the matter to the fact finder for consideration of her counterclaim. We disagree.

“In reviewing a procedural due process claim, we must first determine whether a protected liberty or property interest is involved. If it is, then we must determine the nature and extent of the process due.” (Internal quotation marks omitted.) In re Tayler F., 296 Conn. 624, 553, 995 A.2d 611 (2010). Here, the defendant claims that she has been deprived of property without due process of law because the court failed to remand the case to the fact finder who purportedly failed to consider her counterclaim. Whether the defendant’s rights to due process were violated is governed by the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

Mathews v. Eldridge established a three-prong balancing test to determine “what safeguards the federal constitution requires to satisfy procedural due process.” (Internal quotation marks omitted.) In re Alison M., 127 Conn. App. 197, 219, 15 A.3d 197 (2011). “Under this test, [t]he three factors to be considered are (1) the private interest that will be affected by the state action, (2) the risk of an erroneous deprivation of such interest, given the existing procedures, and the value of any additional or alternative procedural safeguards, and (3) the government’s interest, including the fiscal and administrative burdens attendant to increased or substantive procedural requirements. . . . Due process analysis requires balancing the government’s interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures.” (Internal quotation marks omitted.) Barros v. Barros, 309 Conn. 499, 509, 72 A.3d 367 (2013).

The defendant’s appellate brief fails even to mention the balancing test applicable to her federal due process claim let alone include an analysis of the Mathews test as it applies to the facts of this case. We conclude, therefore, that the plaintiffs claim is inadequately briefed. A claim that does no more that assert a due process violation without legal analysis is deemed abandoned. See Dubaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 443-44, 988 A.2d 351 (2010). For the foregoing reason, the defendant’s claim fails.

II

The defendant’s second claim concerns the court’s statement that the issues alleged in her special defenses and counterclaim that were not addressed by the fact finder were irrelevant to its judgment. We do not agree with the claim.

The defendant has based her claim in part on the plaintiffs alleged violations of the rules of professional conduct in that its fees were not reasonable and that it filed motions fraudulently, manipulated its invoices for services rendered, and represented her incompetently. The defendant did not raise any of those claims of professional misconduct in the trial court. This court does not review claims, such as this one, that are raised for the first time on appeal. See Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 59, 12 A.3d 885 (2011).

Within this second claim, the defendant also argues that the plaintiff overbilled her and that the fact finder did not address certain issues she raised. More specifically, the defendant argues that most of the items for which she was billed “is from work that [was] not necessary for her representation; many are work not done at all, some from work forcefully done. Only one small part of the bill is the defendant’s bill.”

In his discussion of the facts found, the fact finder stated that the defendant’s “change of heart over the divorce and custody issues fuels her retrospective claim that the [pjlaintiff did not follow her instructions, [and] ‘over-lawyered’ the case.” He also stated that the parties had a contract whereby the plaintiff was to provide legal representation for the defendant in a divorce action. The fact finder found that the defendant apparently was satisfied with the representation provided and noted that “[o]nly now does the [defendant assert that she did not want the ‘quantity’ or cost of representation provided by the [p]laintiff.”

The defendant objected to the findings of fact. In overruling the defendant’s objection to the findings of fact, Judge Rittenband stated that “the [defendant] was aware of the amount owed and that the [defendant] at the time of representation found it satisfactory.” See footnote 4 of this opinion. In his articulation, Judge Rittenband stated in relevant part: “The issues in the report and the conclusions made by the fact finder were made on the evidence as they pertain to those issues. The court believes that all the relevant issues were addressed by the fact finder, and the court found the fact finder’s report to be reasonable based upon the evidence that he described in his report. The court found that looking at the report as a whole, all relevant issues were addressed.” The court continued: “Those points not reported by the fact finder apparently were found to be irrelevant because the fact finder did not address them in his report. The court was aware that the fact finder was aware of the special defenses and the counterclaim, and there is no evidence that he ignored them. . . . The remainder of the motion for articulation merely repeats the arguments that were made, or should have been made, before the fact finder, and it is not the province of this court to get into the same issues and decide them when the fact finder made his findings of fact. As to paragraph 5 of the motion for articulation . . . these items were all contained in the fact finder’s report or deemed irrelevant. The defendant is rearguing the claims that she made before the fact finder.”

On the basis of our review of the entire record, we agree with the court that the fact finder addressed all of the issues relevant to the plaintiffs cause of action, the defendant’s special defenses, and her counterclaim. In fact, the fact finder ended his findings of fact with the recommendation that judgment should enter for the plaintiff on the defendant’s counterclaim. We conclude that the points and arguments made by the defendant on appeal, for which she seeks another trial, are not relevant to the plaintiffs action seeking payment of its legal fees for services rendered pursuant to the agreement the defendant voluntarily entered. The defendant’s claim therefore fails.

Ill

The defendant’s last claim is that the court abused its discretion by approving the fact finder’s findings and conclusions on the issues as they are contrary to the evidence and legal conclusions. We disagree.

We first note the applicable standard of review. “[A] reviewing authority may not substitute the findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and fact finders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... 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.” (Citations omitted; internal quotation marks omitted.) Meadows v. Higgins, 249 Conn. 155, 162, 733 A.2d 172 (1999).

On the basis of our review of the entire record, the findings of fact, the court’s ruling on the defendant’s objection to the findings of fact and its articulation, we conclude that the court properly approved the findings of fact and rendered judgment for the plaintiff. The findings of fact are supported by the evidence, and the conclusions reached by the fact finder and the court are reasonably supported by the evidence. The parties entered into an agreement that included the fees charged for the attorneys in the plaintiff law firm. The defendant indicated to Convicer that she wanted to divorce her husband and to obtain custody of their children. She also indicated that the divorce would be contentious and the custody issues difficult. During the course of litigation, the defendant’s spouse raised legal issues that required the plaintiffs lawyers to research the marital law of Nigeria. Also, as the litigation progressed, the defendant changed her objectives and eventually reconciled with her husband. On the basis of our review of the evidence, we cannot say that the findings of fact are clearly erroneous, or that the court erred when it rendered judgment for the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       We decline to review the claim of judicial bias as the defendant failed to raise it in the trial court. See Wendt v. Wendt, 59 Conn. App. 656, 692, 757 A.2d 1225 (claim of judicial bias waived unless motion to disqualify filed at trial), cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

       The attorney fact finder was appointed pursuant to General Statutes § 52-549o. Judge Graham denied the defendant’s request to have the matter tried to the court.

       In her counterclaim the defendant alleged breach of contract, misrepresentation, breach of the implied covenant of good faith and fair dealing, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       In ruling on the defendant’s objection to the findings of fact, the court stated: “It would have been better procedure for the fact finder to get back to counsel on the counterclaim, but a review of the fact finder’s report, the special defenses and the counterclaim convinces the court that the issues therein were addressed in the report and conclusions were made on the evidence as they pertained to those issues. The issue of who will represent the [defendant] was covered in [paragraph] 6 of the report; the complexity of the case covered in [paragraphs] 8 and 9. In his discussion, he finds that the [defendant] failed to take her case to the Bar [Association]. As to monthly bills, the report finds the [defendant] was aware of the amount owed and that the [defendant] at the time of representation found it satisfactory. Any points not reported were found to be either irrelevant or unimportant. The court sees no point in remanding the case to the fact finder.”

       The defendant was dissatisfied with the court’s articulation and filed a motion for review with this court. This court granted the motion for review but denied the relief requested.

      In her brief, the defendant cites the standard of review for claims asserting errors in the court’s factual findings. Much of the defendant’s brief consists of a recounting of the underlying facts and her perception of what the fact finder and trial court did or did not do. As the trial court noted, the defendant is seeking another opportunity to try her case because she is dissatisfied 'with the findings of fact. It is not the function of an appellate court to make factual determinations. See State v. Mullins, 288 Conn. 345, 359, 952 A.2d 784 (2008).

       The defendant’s brief contains no analysis under the state constitution, and we consider any such claim abandoned. See State v. Garcia, 108 Conn. App. 533, 541 n.3, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008).

       Even if the defendant had raised those claims in the trial court, the court would not have been able to resolve them. Claims of attorney misconduct are considered pursuant to the rules of practice. See Practice Book § 2-1 et seq.

       We agree with Judge Rittenband that it would have been better procedurally for the fact finder to have responded to the request of the defendant’s counsel to apprise him of the status of the defendant’s counterclaim that was filed on the eve of the hearing. Despite this procedural irregularity, the findings of fact demonstrate that the fact finder considered the issues raised by the defendant in her special defenses and counterclaim. The fact finder’s failure to communicate with the defendant’s counsel has not resulted in any prejudice to her.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    FRANCES ERICA LANE, INC. v. BOARD OF ZONING APPEALS OF THE TOWN OF STRATFORD
    (AC 35439)
    DiPentima, C. J., and Keller and Borden, Js.

      Argued December 4, 2013
    officially released April 1, 2014

      Barry C. Knott, with whom was Kathleen M. Dunn, for the appellant (plaintiff).

      Christopher J. Smedick, with whom, on the brief, was James Cresswell, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, Frances Erica Lane, Inc., appeals, following our grant of certification, from the trial court’s judgment dismissing its appeal from the denial of its petition for a variance to reduce a wetlands minimum setback requirement from fifty feet to zero feet by the defendant, the Board of Zoning Appeals of the Town of Stratford. In this appeal, the plaintiff claims that the court improperly dismissed its appeal because (1) the defendant did not have subject matter jurisdiction over the plaintiffs petition for a variance, and (2) the plaintiff established that it suffered an unusual hardship. We disagree and, accordingly, affirm the judgment of the trial court.

As part of a proposed subdivision, the plaintiff planned to construct a road and two driveways across 1300 square feet of wetlands located on its property. The plaintiff applied to, and successfully obtained a permit from, the Inland Wetlands and Watercourses Commission of the Town of Stratford (wetlands commission) to construct the road and driveways. Subsequently, the plaintiff petitioned the defendant for a variance from § 3.14 of the Stratford Zoning Regulations, which was necessary to build the road and driveways within fifty feet of the wetlands located on the plaintiffs property. The defendant denied the requested variance. The plaintiff subsequently appealed the defendant’s decision to the trial court, raising two claims. Principally, the plaintiff claimed that the defendant lacked subject matter jurisdiction to deny the variance because the wetlands commission had exclusive jurisdiction over the proposed construction of the road and driveways. In the alternative, the plaintiff claimed that, even if the defendant had subject matter jurisdiction over the petition for a variance, it improperly denied the variance despite evidence that the plaintiff would suffer an unusual hardship. The court dismissed the plaintiffs appeal, finding that the defendant had subject matter jurisdiction, and that it properly determined that the plaintiff did not establish an unusual hardship. This appeal followed.

The following facts and procedural history are relevant to this appeal. The plaintiff owns 12.138 acres of land located on Patricia Drive in Stratford. Approximately 4.8 acres of the property are wetlands. The plaintiff decided to subdivide the property into four lots and to build one single-family home on each lot. Three of the four proposed lots were located upland of inland wetlands, and therefore, could only be accessed by a proposed road and two driveways constructed across 1300 square feet of the wetlands. The proposed road and driveways became the subject of both the plaintiffs permit application to the wetlands commission to conduct a “regulated activity” within 250 feet of wetlands, and its petition to the defendant for a variance from the zoning regulations to build within fifty feet of wetlands.

First, in order to construct the road and driveways, the plaintiff submitted a permit application to the wetlands commission pursuant to General Statutes § 22a-42, and the regulations enacted by the wetlands commission in accordance therewith. Specifically, the Stratford Inland Wetlands and Watercourses Regulations require an individual to obtain a permit for any “regulated activity,” which is defined, in relevant part, as any construction within 250 feet of a specified watershed. Stratford Inland Wetlands and Watercourses Regs., § 2.26. The plaintiff applied for a permit because the locations of the proposed road and driveways were within 250 feet of a watershed specified in § 2.26 of the Stratford Inland Wetlands and Watercourses Regulations. Following several public hearings, the wetlands commission issued the requested permit.

The plaintiff subsequently petitioned the defendant for a variance from a wetlands minimum setback requirement, set forth in § 3.14 of the Stratford Zoning Regulations. Section 3.14 of the Stratford Zoning Regulations provides in relevant part that “[n]o new building construction increasing building area including . . . driveways . . . shall be permitted within [fifty] feet of the mean high water line of any waterbody or watercourse or within [fifty] feet of any freshwater inland wetland . ...” In its petition for a variance, the plaintiff requested a reduction of the setback requirement from fifty feet to zero feet to enable construction of the road and driveways across the wetlands. Without the requested variance, the plaintiff claimed that it would be unable to access three of the four lots in its subdivision proposal. Accordingly, the plaintiff claimed that it would suffer a hardship due to the presence of wetlands and the size and shape of the property. Following two public hearings, the defendant denied the plaintiffs petition for a variance.

The plaintiff appealed to the trial court from the defendant’s denial of its petition for a variance. The plaintiffs revised complaint alleged that the defendant did not have subject matter jurisdiction to review its petition for a variance because the legislature vested the wetlands commission with exclusive jurisdiction over regulated activities affecting inland wetlands. Accordingly, the plaintiff alleged that, insofar as it had obtained a permit from the wetlands commission, it did not also need a variance from the defendant in order to construct the road and driveways. Additionally, the plaintiff alleged that the defendant improperly determined that the plaintiff failed to establish an unusual hardship, which was necessary to acquire a variance.

The court dismissed the plaintiffs appeal. With respect to the plaintiffs first claim, it determined that the authority of the wetlands commission to regulate activities that affect inland wetlands does not conflict with the defendant’s authority to regulate the minimum distance between wetlands and proposed construction. Thus, it concluded that the defendant had jurisdiction to deny the plaintiffs petition for a variance. As to the plaintiffs second claim, the court determined that the plaintiffs purported hardship was purely economic and self-created, and, therefore, the defendant properly determined that the plaintiff was not entitled to a variance as a matter of law.

I

We begin our analysis by setting forth the statutes and regulations guiding our review of the plaintiffs principal claim, namely, that the defendant did not have subject matter jurisdiction to deny its petition for a variance. In 1972, the legislature enacted the Inland Wetlands and Watercourses Act (act), General Statutes §§ 22a-36 through 22a-45, for the purpose of “protect[ing] the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses . . . .” General Statutes § 22a-36. Section 22a-42 (c) of the act authorizes each municipality to “establish an inland wetlands agency ... to carry out the provisions of [the act]. . . . [T]he . . . commission authorized by the municipality • • • shall serve as the sole agent for the licensing of regulated activities.” This section also contains a savings clause, which provides that “[n]othing contained in this section shall be construed to limit the existing authority of a municipality or any boards or commissions of the municipality, provided the [C]om-missioner [of Energy and Environmental Protection] shall retain authority to act on any application filed with said commissioner prior to the establishment or designation of an inland wetlands agency by a municipality.” General Statutes § 22a-42 (g). Additionally, the act further provides that “[n]o person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid . . . variance . . . establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality . . . .” General Statutes § 22a-42a (d) (1).

Pursuant to this enabling legislation, in 1988, Strat-ford created the wetlands commission through § 217-4 of the Stratford Town Charter, which provides in relevant part that “[t]he Town of Stratford hereby establishes the [wetlands commission], an inland wetlands agency, to carry out the provisions of Sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes .... Such agency shall have authority to promulgate such regulations, in conformity with the regulations adopted by the Commissioner ... as are necessary to protect the wetlands and watercourses within its territorial limits. . . .” Like § 22a-42, § 217-4 (A) of the Stratford Town Charter designates the wetlands commission “as the sole agent for the licensing of regulated activities.” Additionally, like § 22a-42 (g), § 217-4 (B) of the Stratford Town Charter contains a savings clause, providing that “[n]othing contained in this chapter shall be construed to limit the existing authority of any board or commission of the Town of Stratford.” Moreover, § 217-5 (D) of the Stratford Town Charter contains language identical to § 22a-42a (d) (1), providing in relevant part that “[n]o person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid . . . variance . . . establishing that the proposal complies with the zoning or subdivision requirements adopted by the Town of Stratford . . . .”

Pursuant to § 217-4 of the Stratford Town Charter, the wetlands commission enacted regulations providing that the wetlands commission “shall enforce all provisions of the [act] and shall issue, issue with modifications, and deny permits for all regulated activities on inland wetlands and watercourses in the Town of Strat-ford . . . .” Stratford Inland Wetlands and Watercourses Regs., § 1.5. As previously indicated, a “regulated activity” is defined, in relevant part, as any construction within 250 feet of a specified watershed. Stratford Inland Wetlands and Watercourses Regs., § 2.26. In accordance with these regulations, the plaintiff submitted a permit application to the wetlands commission for construction of the proposed road and driveways within 250 feet of wetlands.

We next turn to the authority of the defendant. General Statutes § 8-6 vests the defendant with the authority to grant or deny a variance from the town zoning regulations. In 1988—the year in which the wetlands commission was formed—§ 3.14 of the Stratford Zoning Regulations was entitled “Flood Prevention,” and provided: “No dwelling shall be erected with any part of its foundation closer to the center line of a normally running stream or its bed than the minimum sideyard for the district in which it is located plus [thirty-five] feet. The board of appeals may, after due process, approve a variance of this distance when the foundation footing for the dwelling is five feet or more above the normal stream level and the basin drained by the stream, above the location is less than one square mile, or where the stream, above the location is less than one square mile, or where the flow to tidewater is so short and free of obstruction that there is no danger of the stream rising more than three feet, or when the stream is piped and the lot or lots graded according to specifications of the town engineering department. All building elevations shall conform to the national flood damage prevention ordinance.”

Subsequently, in 1991, the town amended § 3.14 of the Stratford Zoning Regulations to its current revision. The current revision is entitled “Waterbody, watercourse, wetland and coastal resource protection,” and provides in relevant part that “[n]o new building construction increasing building area including . . . driveways . . . shall be permitted within [fifty] feet of the mean high water line of any waterbody or watercourse or within [fifty] feet of any freshwater inland wetland . . . The plaintiff petitioned the defendant for a variance from § 3.14 to reduce the minimum wetlands setback requirement from fifty feet to zero feet in order to construct the proposed road and driveways across the wetlands.

Having set forth the applicable statutory and regulatory scheme, we turn to the plaintiffs first claim. The plaintiff contends that by designating the wetlands commission “as the sole agent for the licensing of regulated activities”; General Statutes § 22a-42 (c); the legislature vested it with exclusive jurisdiction over all regulated activities affecting inland wetlands. Although the plaintiff acknowledges that the act contains a savings clause, which provides that the act does not “limit the existing authority of a municipality or any boards or commissions of the municipality”; (emphasis added) General Statutes § 22a-42 (g); the plaintiff argues that § 3.14 of the Stratford Zoning Regulations does not fall within this provision. See also Stratford Town Charter, § 217-4 (B). Specifically, the plaintiff contends that § 3.14 of the Stratford Zoning Regulations, as amended in 1991, is substantively distinct from the version that existed in 1988, when Stratford created the wetlands commission pursuant to the act; see Stratford Town Charter, § 217-4; and therefore, the revision of § 3.14 does not constitute an “existing authority” within the meaning of the act. Hence, the plaintiff contends that it did not need to obtain a variance in order to proceed with its subdivision plan.

The plaintiffs claim is predicated on the interpretation of the act and § 3.14 of the Stratford Zoning Regulations. We therefore review it as a claim of statutory interpretation, over which our review is plenary. See Doctor’s Associates, Inc. v. Windham, 146 Conn. App. 768, 783, 81 A.3d 230 (2013). “General Statutes § l-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.) Id., 784. We conclude that the plaintiffs claim is unsupported by the language of the act and § 3.14 of the Stratford Zoning Regulations.

Section 22a-42 (c) of the act provides in relevant part that “the board or commission authorized by the municipality . . . shall serve as the sole agent for the licensing of regulated activities.” (Emphasis added.) The plaintiff contends that this language vests the wetlands commission with exclusive jurisdiction over all activities affecting inland wetlands. Contrary to the plaintiffs contention, however, the authority to license regulated activities affecting inland wetlands is separate and distinct from the authority to grant or deny a variance from town zoning regulations for construction in close proximity to inland wetlands.

As the court stated in its memorandum of decision, “[b]ased upon a plain reading of the text of § 3.14 [of the Stratford Zoning Regulations], it is clear that the defendant’s authority does not extend to the regulation of wetlands. The defendant’s authority is limited to the location of driveways or other impervious surfaces or alterations of existing contours. Thus, § 3.14 enables the defendant to regulate the distance that one can erect a road or driveway from the mean high water line of any waterbody or watercourse or within [fifty] feet of any freshwater inland wetland. There is no language in § 3.14 supporting the claim that the subject matter controlled by the defendant is under the purview of the [wetlands commission] nor is there language in § 3.14 that grants the defendant the authority to regulate wetlands. The plaintiffs argument that the defendant usurped the [wetlands commission’s] authority by regulating activity in proximity to wetlands areas has no basis.

“Furthermore, the argument that no other regulatory body can regulate activity in proximity to wetlands areas is flawed because activity in proximity to wetlands areas often raises concerns beyond the scope of those just affecting wetlands which requires that agencies cooperate to ensure that all environmental concerns for a particular site are addressed. Therefore, the plaintiffs argument that the defendant usurped the jurisdiction of the [wetlands commission] is without merit.”

Moreover, the legislature expressly contemplated concurrent jurisdiction between the wetlands commission and the defendant to regulate matters pertaining to inland wetlands. Section 22a-42a (d) (1) of the act provides in relevant part that “[n\o person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid . . . variance . . . establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality . . . .” (Emphasis added.) See also Stratford Town Charter § 217-6 (D). Thus, “even if the inland wetlands agency grants a regulated activities permit . . . [i]f the project requires a variance, it must be obtained from the zoning board of appeals . . . .” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 11:6, p. 363. Accordingly, the plaintiffs acquisition of a permit from the wetlands commission did not satisfy its additional burden of obtaining from the defendant a variance from § 3.14 of the Stratford Zoning Regulations.

Our conclusion is further supported by case law providing that “[a]ny attempt to limit [the] powers and duties [of a zoning board of appeals] by restrictive regulation in conflict with the enactment of the General Assembly exceeds the authority of the town.” (Emphasis omitted; internal quotation marks omitted.) Jersey v. Zoning Board of Appeals, 101 Conn. App. 350, 360, 921 A.2d 683 (2007), quoting Farnsworth v. Windsor, 150 Conn. 484, 486-87, 190 A.2d 915 (1963). The plaintiffs contention that the wetlands commission had exclusive jurisdiction over its subdivision application exceeds—and indeed, directly contradicts—the authority vested in the wetlands commission by the Stratford Town Charter, which provides in relevant part that in order to conduct an activity regulated by the wetlands commission, applicants must obtain a permit therefrom, and a “variance . . . establishing that the proposal complies with the zoning or subdivision requirements adopted by the Town of Stratford . . . .” Stratford Town Charter, § 217-5 (D); see General Statutes §§ 22a-42 and 22a-42a. We thus conclude that the court properly determined that the defendant had subject matter jurisdiction over the plaintiffs petition for a variance.

II

We next address the plaintiffs claim that the court improperly dismissed its appeal from the defendant’s denial of the petition for a variance because the plaintiff established an unusual hardship. “We . . . must determine whether the court properly concluded that the [defendant’s] decision to [deny] the variance was arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Schulhof v. Zoning Board of Appeals, 144 Conn. App. 446, 451, 74 A.3d 442 (2013). “[Section] 8-6 (a), which sets forth the powers and duties of a zoning board of appeals, provides in relevant part: The zoning board of appeals shall . . . (3) . . . determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . . [See also Stratford Zoning Regs., § 21.1.] . . .

“To support a variance ... a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. . . . The applicant bears the burden of demonstrating the existence of a hardship. . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. ... A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.” (Citation omitted; emphasis added; footnote added; footnote omitted; internal quotation marks omitted.) Schulhof v. Zoning Board of Appeals, supra, 144 Conn. App. 452-53. Our Supreme Court has “repeatedly said that the power to grant a variance should be sparingly exercised ... so as to protect property values and ensure the orderly development of the community.” (Citations omitted.) Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89, 255 A.2d 841 (1969).

In its memorandum of decision, the court stated: “It is clear from the record, that the primary concern addressed by the plaintiff at the public hearing was the plaintiffs ability to build a four home subdivision on the subject property instead of one home. The inability to develop the subject property so as to build a subdivision consisting of four single-family homes is the claimed hardship in the present matter. The law is clear that neither a mere economic hardship nor a hardship that was self-created is a proper ground upon which to grant a variance. Morikawa v. Zoning Board of Appeals, [126 Conn. App. 400, 408-409, 11 A.3d 735 (2011).] ‘The desire to subdivide property into [multiple] lots is a voluntary hardship created by the applicant requiring denial of a variance.’ 9 R. Fuller, [supra] § 9:3, p. 247 (relying upon Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 206, 557 A.2d 1265 [1989]). ... Any hardship based on the plaintiffs desire to subdivide and develop the subject property to facilitate building four single-family homes is self-created, and, therefore, the board lacked the power to grant a variance on this ground.”

We agree with the court’s analysis. The plaintiff concedes that without the variance, it could still build one single-family home on the property. This court has previously held that “a hardship was not shown because the [plaintiff] admitted that a house, even though not the type that [it] desired, could have been built on the lot while conforming to the setback requirements. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . .” (Emphasis added; footnote omitted; internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548, 684 A.2d 735 (1996). Thus, because the plaintiffs inability to build four homes on the property constitutes a mere disappointment in use, the court did not improperly dismiss the plaintiffs appeal from the defendant’s denial of its petition for a variance.

The judgment is affirmed.

In this opinion the other judges concurred.

       The proposed road was to be approximately 500 feet in length and was to lead to the two proposed driveways. One driveway was to be an accessway to one upland lot, and the other driveway was to be an accessway to the other two upland lots.

       General Statutes § 22a-42 is part of the enabling legislation, known as the Inland Wetlands and Watercourses Act, which authorizes each municipality to create an inland wetlands commission to “serve as the sole agent for the licensing of regulated activities.” This statute, as well as the regulations enacted by the wetlands commission, are discussed in greater detail in part I of this opinion.

       At this point, we take pause to note the precarious procedural posture of the plaintiffs claim that the defendant did not have subject matter jurisdiction to deny its petition for a variance. At oral argument before this court, the plaintiff explained that, although it believed that it did not need a variance to build the road and driveways because the wetlands commission had granted it a permit for this construction, the zoning enforcement officer refused to issue a building permit absent a variance from § 3.14 of the Stratford Zoning Regulations. Accordingly, the plaintiff submitted to the defendant a petition for a variance, notwithstanding its belief that a variance was not required for the issuance of a building permit.
      If, as the plaintiff contends, it believed that the defendant lacked jurisdiction to issue a variance, it could have brought a writ of mandamus or an action for a declaratory judgment challenging the defendant’s jurisdiction. The plaintiff, instead, voluntarily invoked the defendant’s jurisdiction by submitting to it a petition for a variance. Although this concession to the defendant’s jurisdiction might well be grounds enough to dismiss this claim as unmeritorious, we nevertheless have decided to review it.

       General Statutes § 8-6 (a) provides in relevant part that the zoning board of appeals shall have the power and duty “to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

       The Stratford Zoning Regulations were enacted pursuant to General Statutes § 8-2, which authorizes the zoning commission of each town to “regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land.”

       The plaintiff argues that prior to the 1991 amendment, § 3.14 of the Stratford Zoning Regulations “was designed to protect life and property from flood damage, not to protect inland wetlands from human encroachment . . . .”

       Section 21.1 of the Stratford Zoning Regulations provides in relevant part: “The [defendant] shall have the power to determine and vary the application of these regulations ... in harmony with their purpose and intent and with due consideration for conserving the public health, safety, convenience and welfare, solely with respect to aparcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. . . . Before making such determination or variance the [defendant] must make a written finding in the minutes of each case giving in detail: (a) The special circumstances which create the hardship for the particular parcel of land and which do not apply to other parcels in the district; (b) that the hardship did not exist when the applicant became an interested party and was not created by any act of the applicant; and (c) that the variance allowed was the minimum necessary to relieve the hardship. . . .”


author: KELLER, J.

text:
    STATE OF CONNECTICUT v. LISSETTE I. CHICLANA
    (AC 34863)
    DiPentima, C. J., and Keller and Dupont, Js.

      Argued November 18, 2013
    officially released April 1, 2014

      Janice Wolf, assistant public defender, for the appellant (defendant).

      Lisa Herskowitz, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

KELLER, J.

The defendant, Lissette I. Chiclana, appeals from the judgment of conviction, rendered after a trial by jury, of manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a. On appeal, the defendant raises two evidentiary claims relating to a portion of a recorded statement that she made following her arrest, wherein she described an incident involving the accidental discharge of a firearm the night before the commission of this crime. The defendant contends that the statement was inadmissible because (1) the trial court should have considered it to be evidence of uncharged misconduct, and, if it had done so, it would have concluded that its prejudicial impact outweighed its probative value, and (2) it was not relevant to the issues of the case. We disagree, and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 24,2010, the defendant shot and killed the victim, Jámese Hudson, in an apartment on Garden Street in New Haven, where the defendant resided with four other individuals. The victim was friends with the defendant, as well as the other occupants of the apartment, and had been staying there for several days just prior to the shooting. On the day of the shooting, the defendant and the victim were reclining on two twin beds in the defendant’s bedroom and sending text messages on their cell phones. While doing so, they intermittently “played” with a .380 caliber handgun that the defendant had purchased for self-protection. For several weeks prior to the shooting, the defendant and the victim had been, as the defendant described it, “playing” this “game” with the gun. As part of this “game,” the defendant and the victim took turns pointing the gun at one another and pulling the trigger. They engaged the safety mechanism so that it would not fire when the trigger was pulled. They “played” this “game” between twenty and thirty times over the course of several weeks, despite being forewarned not to do so.

The day of the shooting, the defendant and the victim each pulled the trigger of the gun several times without its firing. The defendant was aware that the handgun was loaded, but continued to pull the trigger because she believed the safety mechanism to be engaged. At approximately 1:30 p.m., however, the defendant pointed the gun in the victim’s direction, pulled the trigger, and the gun fired unexpectedly. As a result, the defendant, at close range, inflicted a fatal gunshot to the victim’s head. While fleeing the apartment, the defendant informed another occupant, Jasmine Vree-land, that she accidentally had shot the victim. Vreeland exited the apartment and asked a neighbor to call 911. The defendant was arrested later that day and charged with one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a) and one count of carrying a pistol without a permit in violation of General Statutes § 29-35 (a).

At trial, the state offered into evidence, outside the presence of the jury, an audiotape of a statement made by the defendant, following her arrest, to Detectives Michael Wuchek and James Naccarato of the New Haven Police Department. The defendant’s counsel objected to a portion of the statement in which the defendant described to the detectives an incident involving the same gun that had occurred on October 23, 2010, the night before the shooting. The defendant told the detectives that at approximately 10 p.m., she had the gun in her pocket while she was in the kitchen of the Garden Street apartment. The victim also was present in the apartment at that time. The defendant stated that because her pocket was not large enough to fully fit the gun, it fell from her pocket and fired a single time. The defendant stated that the gun had “jammed.” Although the defendant was not aware where the bullet went, she recovered the shell and discarded it in the trash. After this accidental discharge, the defendant told the detectives that three bullets remained in the clip of the gun. Over defense counsel’s objection, the court allowed the state to play the audiotape of the defendant’s statement in its entirety and to provide the jury with a transcript thereof.

The defendant was charged with one count of manslaughter in the first degree with a firearm in violation of § 53a-55a (a) and one count of carrying a pistol without a permit in violation of § 29-35 (a). As an alternative to manslaughter in the first degree, the court charged the jury as to the lesser included offenses of manslaughter in the second degree with a firearm in violation of § 53a-56a and criminally negligent homicide in violation of General Statutes § 53a-58.

On April 12, 2012, the jury found the defendant not guilty of manslaughter in the first degree with a firearm, but guilty of manslaughter in the second degree with a firearm and carrying a pistol without a permit. On June 8, 2012, the court imposed a total effective sentence of fifteen years incarceration, execution suspended after eleven years, and three years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first contends that the portion of her statement relating to the accidental discharge of the gun the night before the shooting constituted evidence of prior uncharged misconduct and, accordingly, the court should have assessed its admissibility as such. The defendant argues that if the court had done so, it would have concluded that the statement did not meet one of the exceptions to the general bar on evidence of uncharged misconduct, its prejudicial impact outweighed its probative value, and it therefore constituted inadmissible evidence of uncharged misconduct. In response, the state argues that the defendant’s claim is not reviewable because defense counsel did not object on this basis at trial. We agree with the state and decline to review this claim because it was not raised before the trial court and, therefore, was not preserved for our review.

The record reveals the following additional procedural history. At trial, the state sought, outside of the presence of the jury and over defense counsel’s objection, to introduce into evidence the audiotape of the defendant’s statement relating to the accidental discharge. In his offer of proof, the prosecutor argued that the evidence was admissible pursuant to State v. McCoy, 91 Conn. App. 1, 879 A.2d 534, cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005), and State v. McMahon, 257 Conn. 544, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002), indicating that in McCoy, this court held that a “defendant’s state of mind at the time he fatally shot the victim may be proven by his conduct before, during, and after the shooting.” The prosecutor argued that the statement was thus admissible because it was relevant to establishing the defendant’s state of mind at the time of the shooting, specifically, that she acted with reckless disregard and extreme indifference to human life, as required by §§ 53a-55 (a) and 53a-55a. See footnote 7 of this opinion. The court then took a brief recess to permit the court and defense counsel to review the case law that the prosecutor had brought to the attention of the court.

After the recess, the defendant argued that the accidental discharge did not constitute conduct, as the gun merely had fallen from her pocket and the discharge was not volitional, and that the statement was not relevant to the subsequent accidental shooting of the victim. In ruling that the evidence was admissible, the court, paraphrasing McCoy, stated: “[T]he defendant’s state of mind at that time of the shooting may be proven by his or her conduct before, during, and after the shooting. Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude toward the victim by the defendant that is probative of the defendant’s mental state. And the evidentiary issue in front of this court, the weapon used is the same weapon that the state alleges is used in the shooting that occurred on October 24, 2010, and it’s within a twenty-four hour period of the date the state alleges that the manslaughter occurred. So, the court makes the following finding, that this evidence is relevant, the jury can consider it, the jury could give whatever weight they feel—they see fit to give to this evidence concerning the discharge of the same weapon the night before in the apartment where the defendant and the victim were also together the night before. So, I will allow it in.” (Emphasis added.)

“[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an eviden-tiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” (Internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013). “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court]. . . . This court reviews rulings solely on the ground on which the party’s objection is based. . . . [T]o afford petitioners on appeal an opportunity to raise different theories of objection would amount to ambush of the trial court because, [h]ad specific objections been made at trial, the court would have had the opportunity to . . . respond.” (Citation omitted; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 133-34, 998 A.2d 730 (2010).

Our careful review of the record and trial transcripts reveals that the defendant did not object to the admission of her statement concerning the accidental discharge of the gun on the ground that the statement constituted inadmissible uncharged misconduct evidence. The prosecutor offered the defendant’s statement as evidence relevant to proving the defendant’s state of mind at the time she fatally shot the victim, and the court admitted the statement on that ground. The defendant acknowledges that the court admitted her statement concerning the accidental discharge as relevant evidence of the crime with which she was charged, rather than as evidence of uncharged misconduct, and never during the course of trial did defense counsel suggest that the statement constituted evidence of uncharged misconduct. Notably, the defendant did not file a motion in limine seeking the preclusion of uncharged misconduct evidence or request a limiting instruction as to the restricted purpose for which the jury might consider the statement. Indeed, the defendant argued that the accidental dropping of the gun did not, in fact, constitute conduct. The defendant did not assert any alternate ground for the objection, or object in any manner to other evidence, presented later at trial, pertaining to the accidental discharge.

For instance, after the state offered the defendant’s statement into evidence over the defendant’s objection, it proceeded to present other evidence indicating that the gun in question had discharged the day before the shooting. The state presented the testimony of Detective Mark Harkins of the New Haven Police Department, who testified that on October 25, 2010, he was assigned to investigate an unlawful discharge incident that occurred at the Garden Street apartment, and that he recovered a bullet embedded in a closet of an adjacent apartment. He indicated that, on the basis of the trajectory of the bullet, it likely came from the defendant’s apartment. Moreover, the defendant herself testified on cross-examination that on the night of October 23,2010, the gun had fallen from her pocket and unexpectedly discharged when it struck the ground. She further testified that she believed that the gun had then “jammed.” This testimony was admitted without objection.

Our Supreme Court has explained that, to afford petitioners on appeal an opportunity to raise different theories of objection would “amount to ambush of the trial court because, [h]ad specific objections been made at trial, the court would have had the opportunity to . . . respond.” (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. 134. In her objection and the ensuing argument, the defendant failed to provide the court with any notice that she was objecting on the ground that the statement constituted inadmissible uncharged misconduct. She then failed to object to other evidence, presented later at trial, pertaining to the accidental discharge. In sum, because the defendant’s theory of objection seemingly has changed, and never was articulated with precision at trial, we conclude that the claim is not reviewable.

We must, however, briefly address the defendant’s argument that this claim is preserved because, in a pretrial notice of prior uncharged misconduct, the state identified the incident of the accidental discharge as evidence of uncharged misconduct that it may seek to adduce at trial. The defendant contends that this notice preserved her claim for review because “[i]t is clear . . . that the evidence of the unintentional discharge of the weapon from the night prior to the fatal shooting of [the victim], if it was to be admitted at all, would be limited in its admission to the rules that govern uncharged misconduct.” This argument is without merit. Although the state filed a notice of intent to offer evidence of uncharged misconduct in which it identified the accidental discharge, at trial, the state ultimately did not offer the statement for that purpose. Rather, it was offered generally as evidence relevant to the defendant’s state of mind. We are aware of no authority stating that once a party identifies evidence as uncharged misconduct in a pretrial disclosure, it is precluded at the time of trial from offering such evidence for a proper purpose under an alternative theory of admissibility. Indeed, our case law suggests the opposite. See State v. Hill, 307 Conn. 689, 704, 59 A.3d 196 (2013) (“once the evidence can be admitted for a proper purpose, that evidence no longer should be barred as misconduct evidence because it has not been proffered for that impermissible purpose”); State v. Gant, 231 Conn. 43, 58, 646 A.2d 835 (1994) (“We also reject the defendant’s assertion that this evidence [of his threatening someone with a gun] constituted ‘prior misconduct’ or ‘bad character’ evidence that prejudiced the defendant. The state never offered this evidence for the purposes argued by the defendant on appeal, and the trial court never gave such instructions to the jury.”), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); State v. Huckabee, 41 Conn. App. 565, 581, 677 A.2d 452 (Schaller, J., dissenting) (“The evidence was not offered as evidence of misconduct for the purpose of impeaching the credibility of the defendant or for showing a criminal propensity. I conclude, therefore, that [the] testimony on this matter does not constitute misconduct evidence.”), cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996),

Finally, we reject the defendant’s argument that this claimed error, though unpreserved, should be reviewed under the plain error doctrine. See Practice Book § 60-6. “[T]he plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [T]he claimed error must be both clear and harmful enough such that a failure to remedy the error would result in manifest injustice.” (Internal quotation marks omitted.) State v. Hill, supra, 307 Conn. 704-705. We are not persuaded by the defendant’s summary assertion that this evidentiary claim warrants such extraordinary review. The defendant has not demonstrated that the alleged impropriety she raises is so clear and so harmful that manifest injustice will result if the judgment is not reversed. Nor has she shown that her claim affects the fairness and integrity of and public confidence in judicial proceedings. We therefore conclude that this is not an occasion requiring the reversal of the trial court’s judgment under the plain error doctrine.

II

The defendant next claims that the court abused its discretion by admitting her statement to the police relating to the accidental discharge of the gun because the statement was not relevant to the issues in the case. Specifically, the defendant argues that her statement concerning the gun accidentally falling from her pocket the night before the fatal shooting was not relevant and should not have been admitted for the purpose of showing that she acted recklessly and with a disregard for human life. She summarily asserts that the statement “did not have a visible connection to the facts of the charged offense,” and that the “gun dropping from the defendant’s pocket the night before [the fatal shooting] was totally unconnected to [the victim] or to the shooting of [the victim] the next day.” We are not persuaded.

At the outset, we first set forth the appropriate standard of review and applicable legal principles. “This court reviews evidentiary rulings under the abuse of discretion standard of review. . . . The trial court has wide discretion to determine the relevancy of evidence .... 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.” (Citation omitted; internal quotation marks omitted.) State v. Stephen O., 106 Conn. App. 717, 724, 943 A.2d 477, cert. denied, 287 Conn. 916, 961 A.2d 568 (2008).

It is axiomatic that evidence that is not relevant is inadmissible. Conn. Code Evid. § 4-2. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. . . . Materiality is determined by the pleadings (or information) and the applicable substantive law.” (Citation omitted; internal quotation marks omitted.) State v. Kantorowski, 144 Conn. App. 477, 487-88, 72 A.3d 1228, cert. denied, 310 Conn. 924, 77 A.3d 141 (2013).

To obtain a conviction of manslaughter in the first degree with a firearm in violation of § 53a-55a (a), as charged, the state bore the burden of proving that the defendant “commit[ed] manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense [she] use[d] ... a pistol, revolver . . . or other firearm. . . .” In turn, “[t]o obtain a [manslaughter] conviction under [§] 53a-55 (a) (3) . . . the state must prove that the defendant (1) engaged in conduct which creates a risk of death, (2) in so doing, [she] acted recklessly (3) under circumstances evincing an extreme indifference to human life and (4) that [her] conduct caused the death ... of another person.” (Internal quotation marks omitted.) State v. McMahon, supra, 257 Conn. 567-68. The state argues, as it did at trial, that the defendant’s statements concerning the accidental discharge of the gun the night before the shooting were relevant to establishing that the defendant acted recklessly and with an extreme indifference to human life at the time of the shooting the next day.

The relevant factual issue before the jury was whether the defendant was “aware of and consciously disregarded] a substantial and unjustifiable risk . . . of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” General Statutes § 53a-3 (13). “Where, as here, factual issues exist that are related to a defendant’s [state of mind], we recognize that such factual issues are characteristically proven by circumstantial evidence. ... It is obvious that direct evidence of the accused’s state of mind is rarely available and, therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Accordingly, the defendant’s state of mind at the time of the shooting may be proven by [her] conduct before, during and after the shooting.” (Citation omitted; internal quotation marks omitted.) State v. McCoy, supra, 91 Conn. App. 7.

We agree with the state that the statement concerning the accidental discharge was relevant to proving that the defendant acted recklessly the day of the fatal shooting. The defendant’s statement indicates that the defendant was aware that the gun could discharge unexpectedly, and proof of such awareness strongly tends to demonstrate recklessness. See General Statutes § 53a-3 (13). The defendant stated that at the time of the accidental discharge the gun had “jammed,” and later, at trial, testified that she did not take any actions to unjam it or ensure that it was functioning properly the next day. She further acknowledged in her statement that she was aware that three bullets remained in the clip of the gun. This evidence undoubtedly aided the jury reasonably to determine that the defendant acted recklessly and with extreme indifference to human life when she decided to, by her own admission, “play” with the gun by pointing it in the direction of her friend and pulling the trigger the day after it unexpectedly discharged. The jury was tasked with determining the mental state of the defendant. It was well within the court’s discretion to admit evidence of conduct occurring less than twenty-four hours before the time of the commission of the crime, where it goes to her knowledge and awareness of the existing circumstances posing a substantial and unjustifiable risk. It tended to show that she was aware that the gun could discharge easily and that it was functional. Accordingly, because awareness of the defective operation and dangerousness of the gun was integral to demonstrating recklessness, the trial court did not abuse its discretion in concluding that the defendant’s statement relating to the accidental discharge was relevant.

Finally, even if the court improperly admitted the statement relating to the accidental discharge, which we conclude was not the case, the error was harmless. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [0]ur Supreme Court [has] addressed harmless error review and determined that the proper standard is whether the jury’s verdict was substantially swayed by the error. Our Supreme Court further held that a nonconstitu-tional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Franko, 142 Conn. App. 451, 460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013).

The defendant argues that admitting the statements relating to the accidental discharge “substantially swayed” the jury, and had they not been admitted, “the jury would have seen [the defendant’s] role in [the victim’s] death as it was, negligent.” We disagree. The remaining evidence amply supported the jury’s finding that the defendant acted in a reckless manner and was sufficient for the jury to have found the defendant guilty of manslaughter in the second degree with a firearm. Although the defendant objected to the admissibility of the statement, additional evidence concerning the accidental discharge—including the defendant’s own testimony on cross-examination—was admitted without objection. The jury, therefore, was aware that the defendant knew that the gun could discharge unexpectedly. Furthermore, the defendant testified that she had been “playing” with the gun when she pointed it in the direction of the victim and intentionally pulled the trigger. The jury heard testimony that she had been “playing” this “game” for several weeks, despite having been warned not do so. The defendant testified that she purchased the gun and bullets “on the street” and never took a firearms safety course. The defendant testified that, although she was aware that guns have the capacity to kill, the activity of pointing the gun at each other and pulling the trigger was “just a game for [her and the victim].” She stated that although she believed that the safety mechanism was engaged, she did not remove the clip or bullets from the gun prior to pointing it at the victim and pulling the trigger. Given the cumulative impact of the undisputed facts, a jury reasonably could have concluded that the defendant consciously disregarded a substantial and unjustifiable risk of causing the death of another person by routinely pointing a loaded gun at another individual and pulling the trigger—regardless of whether the safety mechanism is engaged. On the basis of this evidence, we have a fair assurance that the defendant’s statement describing the accidental discharge did not substantially affect the verdict.

Under the given circumstances, with due regard for the broad leeway possessed by trial courts in determining the admissibility of evidence, we conclude that the court did not abuse its broad discretion in admitting the statement describing the accidental discharge of the firearm that occurred the night before the death of the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with and convicted of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). She does not appeal from the conviction of that crime.

       On October 24,2010, the defendant was nineteen years old and the victim was sixteen years old.

       The defendant purchased the gun for $600 in either March or April, 2010, after her boyfriend had been fatally shot outside of her home. She testified that she purchased the gun and the bullets with which it was loaded “on the street.” Furthermore, the state presented the testimony of Detective Michael Wuchek of the New Haven Police Department, who testified that no gun permit had been issued to the defendant.

       The state presented testimony from Dr. Ira Kanfer, an assistant medical examiner who performed the autopsy of the victim. Kanfer opined that the defendant fired the gun from a distance of eighteen inches from the victim. He also identified the victim’s cause of death to be a gunshot wound to the head.

       The following colloquy between the defendant and the detectives constitutes the portion of the audiotape to which the defense objected:
      “ [Detective Wuchek]: Okay, um is this the first time that gun ever went off?
      “[The Defendant]: No.
      “Q. By accident.
      “A. No, it went off by accident in the kitchen yesterday. It had fell out of my pocket while I was trying to heat up some food.
      “Q. At what time did that happen about?
      “A. I don’t know what time that happened.
      “Q. Was it in the morning or at night?
      “A. It was at night.
      “Q. It was late night or just nighttime?
      “A. Mm, just nighttime like ten.
      “Q. And uh you had the gun on you while you were cooking food?
      “A. No, I wasn’t cooking food. I was trying to heat up my food that I had just went and got from my family, my other family house.
      “Q. [All right]. And then what happened you dropped it?
      “A. Yeah cause my pocket wasn’t big enough to hold it so it just dropped out of my pocket and [went] off.
      “Q. So when it fell it went off?
      “A. Mm hm.
      “Q. How many times did it go off?
      “A. Just went off once. It jammed.

        “Q. And was [the victim] in the house with you at that time?
      “A. Yes, she was.
      “Q. Okay.
      “A. She kind’a thought it was funny. Our ears were all ringing.
      “Q. Were either of you two hurt?
      “A. No.
      “Q. Do you know what happened to the bullet? Where the bullet went?
      “A. No, but I know where the shell was at.
      “Q. What did you do with the shell?
      “A. Discard of it.
      “Q. How did you discard of it? Did you throw it in the garbage can? Did you flush it down the toilet? What did you do?
      “A. I discarded it. Do I have to say how I discarded it?
      “Q. Yeah if you could.
      “A. I was like I just threw it out in the trash. . . .
      “Q. And uh it had three bullets in the . . .
      “A. Three bullets.
      “Q. Left.
      “A. In the clip, yes.”

       At trial, Mark Harkins, a detective with the New Haven Police Department, testified that the bullet was recovered from an adjacent apartment where it was found embedded in the ceiling of a closet.

       General Statutes § 53a-55a (a) provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of ... a pistol, revolver ... or other firearm. ...”
      General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-56a (a) provides in relevant part: “A person is guilty of manslaughter in the second degree with a firearm when he commits manslaughter in the second degree as provided in section 53a-56, and in the commission of such offense he uses ... a pistol ... or other firearm. . . .”
      General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-58 (a) provides in relevant part: “A person is guiliy of criminally negligent homicide when, with criminal negligence, he causes the death of another person . . . .”
      We note that in instructing the jury with respect to criminally negligent homicide, the court referenced General Statutes § 53a-54 instead of § 53a-58. The defendant has not raised any claim in this regard. Section 53a-54 was repealed in 1973. See Public Acts 1973, No. 73-137, § 15. Any discrepancy, however, is harmless as the court applied the correct law. In instructing the jury as to this charge, the court stated: “A person is guilty of criminal[ly] negligent homicide when, with criminal negligence, she causes the death of another person.” See State v. Johnson, 288 Conn. 236, 285, 951 A.2d 1257 (2008) (“[a]s long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper” [internal quotation marte omitted]).

       “Evidence of a defendant’s uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. . . . Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. ... To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Internal quotation marks omitted.) State v. Pena, 301 Conn. 669, 673-74, 22 A.3d 611 (2011).

       Specifically, defense counsel stated: “[McCoy] does talk about conduct before, during, and after the incident. The fact that something fell out of someone’s pocket does not constitute conduct. ... It is—it's the same weapon, that’s correct, but I think the offer of proof relates to the state of mind and conduct on the part of the defendant, and, in fact, that really isn’t conduct at all. I don’t think it’s relevant at all to what happened thefollowing day.” (Emphasis added.)

       Reference was also made to the accidental discharge, without objection, before the state offered the statement into evidence. Vreeland, the defendant’s housemate, had testified that on the night of October 23, 2010, she was in the Garden Street apartment when she heard a gunshot. She testified that the defendant and the victim were also both present in the Garden Street apartment at the time. Vreeland, however, did not know the source of the gunshot and, at the time, believed that it originated from outside the apartment.

       On January 13, 2011, the defendant filed a motion for disclosure of uncharged misconduct, which the court granted on January 26, 2011. In response, on November 29, 2011, the state filed a notice of prior uncharged misconduct in which it notified the defendant of its intent to offer evidence related to the “prior incident of discharge of a firearm on or about the 23rd day of October, 2010, in the [Garden Street apartment], by this same defendant.” Trial commenced on April 9, 2012, some four months after the state filed its notice.

       General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . .

       “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . General Statutes § 53a-3 (14).