text:
    STATE OF CONNECTICUT v. ALFREDO VARGAS
    (AC 23158)
    Bishop, McLachlan and Hennessy, Js.

      Argued September 9
    officially released December 9, 2003

      George G. Kouros, special public defender, with whom were Michael O. Sheehan, special public defender, and, on the brief, Richard A. Reeve, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Alfredo Vargas, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) remarked in the presence of the jury as to the victim’s competency to testify, thereby bolstering the credibility of her testimony, (2) restricted the defendant’s cross-examination of several of the state’s key witnesses, (3) issued an inappropriate jury instruction with respect to the victim’s in-court identification of the defendant as the perpetrator, (4) demonstrated a lack of impartiality in its treatment of the victim and the defendant, (5) allowed the state to make improper remarks in its closing argument and (6) denied the defendant’s motion to unseal the victim’s confidential records. We reverse the judgment of the trial court.

The following facts were adduced at trial. For several years, up to and including October, 2000, the victim, bom April 25, 1996, often accompanied her father to an Orthodox Jewish synagogue. During that period of time, the defendant volunteered at the same synagogue on the Sabbath and on holidays, performing various tasks that Orthodox practice prohibits followers from performing, including operating electrical appliances. When the victim would accompany her father to the synagogue, she would not partake in the religious services, but would instead play in the backyard of the synagogue where she occasionally had exposure to the defendant. On some of those occasions during the summer months of 2000 up to and including October 15, 2000, the defendant engaged in sexual intercourse with the victim, to wit, digitally penetrating her anus, penetrating her vagina and causing her to perform fellatio on him. At the time of the sexual abuse, the victim was four years old. Soon after the sexual abuse of October 15,2000, the victim disclosed the abuse to various members of her family, and the matter was then referred to the local police, a pediatrician and a social worker.

In a two count amended information dated March 11, 2002, the state charged the defendant with sexual assault in the first degree and risk of injury to a child. A jury trial commenced on April 2, 2002, and, on April 10, 2002, the jury found the defendant guilty on both counts. On May 24, 2002, the court imposed a total effective sentence of fifteen years incarceration, execution suspended after twelve years with ten years probation. The defendant appeals from the judgment of conviction.

I

The defendant’s first claim is that the court improperly remarked in the presence of the jury about the victim’s competency to testify such that the court appeared to vouch for the credibility of her testimony. Specifically, the defendant asserts that the court declared to the jury its findings following the victim’s competency hearing and, on at least four additional occasions during defense counsel’s cross-examination of the victim, repeated that finding in the presence of the jury. We agree that the court’s remarks were improper and deprived the defendant of his right to a fair trial.

The first challenged remark arose at the conclusion of the court’s voir dire of the victim to determine her competency to testify. The court announced its finding to the jury, stating: “I find a fundamental ability [in the victim] to recognize that it’s wrong to not tell the truth in her own manner of speaking.”

Subsequently, during cross-examination of the victim, defense counsel posed a question as to her knowledge of what it means to tell the truth. The court interjected: “I think I’ve already been satisfied that the oath administered is sufficient to put me on notice that she understands the nature of telling the truth and penalty could follow for not telling the truth, as she has learned in the common experiences of life. There will be no need to further inquire on that subject.”

Later in the same cross-examination, defense counsel posed a question to the victim about an out-of-court statement she had made concerning what it meant to tell the truth. Following an objection by the state, the court stated: “Well, I can assure you of one thing, Fve already made that determination, and you have inquired, bringing my attention to that function of the court, and I have so indicated it to you.”

Defense counsel again attempted to question the victim as to her out-of-court statement. Counsel asked: “Didn’t you tell the lady at the hospital you did not know what it meant to tell the truth?” Following an objection by the state, the court stated: “Let me point out to you that while that may be true at that time and place, my determination of her telling the truth and the ability to do so is made at this time and place. And, that would be sufficient for this court’s purposes at this time.” (Emphasis added.)

Finally, the defendant challenges the following statements made by the court during defense counsel’s cross-examination of the victim:

“[Defense Counsel]: When you said this morning in court that Fredo touched [you], [were] your mom and dad there, too, at the same place?
“[The Victim]: There, too?
“[The Prosecutor]: I’m going to object. . . . I’m certain she, the witness, five-and-a-half years old, doesn’t know what that question means. . . .
“[Defense Counsel]: Your Honor, if the form is unacceptable at this point, and is continuously obstructing my cross-examination—
“[The Prosecutor]: She’s a five-and-a-half year old girl—
“[Defense Counsel]: I would submit that [the victim] is incompetent to testily.
“The Court: Well, I’ll make that decision.
“[Defense Counsel]: If that question is not understandable, then I would submit that this witness is incompetent.
“The Court: And, if I determine the contrary, then I am, what?
“[Defense Counsel]: Your Honor, if you wish me to proceed, I’ll proceed.
“The Court: Of course, you must proceed, you have to defend your client, but do so within the rules. Do you have another question?”

The defendant contends that those remarks conveyed to the jury the court’s opinion not only that the victim was capable of telling the truth, but that she was, in fact, telling the truth. The defendant further contends that the aggregate effect of the court’s remarks was to bolster the victim’s credibility improperly and to undermine the defendant’s right to have all issues of credibility independently determined by the jury.

We begin by noting the well established rule that “[w]hile the competency of a witness is for the trial court to evaluate, the credibility of a witness is for the jury to determine.” State v. Morant, 242 Conn. 666, 682, 701 A.2d 1 (1997). It is, therefore, fundamental that the court cannot vouch for the credibility of the state’s witnesses. See State v. Camerone, 8 Conn. App. 317, 325-27, 513 A.2d 718 (1986). Furthermore, “[d]ue process requires that there should be no [statement during the trial] that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. . . . The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. ... A fine line separates proper and improper judicial conduct and the judge must strive to appear impartial and detached.” (Citations omitted; internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 569-70, 691 A.2d 1081 (1997). “Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis.” (Internal quotation marks omitted.) State v. Lopes, 78 Conn. App. 264, 275, 826 A.2d 1238, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003).

The essential inquiry is whether the court’s remarks appeared to imply judicial support of the victim’s credibility, thereby intruding on the function of the jury to itself determine her credibility. We conclude that the remarks had such an effect.

This court has stated that “[j]udges in this state . . . are given wide latitude to comment fairly and reasonably upon evidence received at trial, but the court must refrain from making improper remarks which are indicative of favor or condemnation .... Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must always be cautious and circumspect in his language and conduct.” (Citations omitted; internal quotation marks omitted.) State v. Hardwick, 1 Conn. App. 609, 611, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984).

Admittedly, the judge’s comments were neither overtly partial toward the victim nor explicitly supportive of her testimony. The measure of any improper influence on the jury, however, must be assessed with an eye toward the authoritative position of a judge presiding over a trial and the corresponding propensity of the jury to look to the judge for guidance in its consideration of the case. Indeed, this court has recognized that “[t]he influence of the trial judge on the jury is necessarily and properly of great weight . . . and jurors are ever watchful of the words that fall from him. . . . These admonitions and cautions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.” (Citations omitted; internal quotation marks omitted.) State v. Pharr, supra, 44 Conn. App. 569-70.

Central to a defendant’s right to a fair trial is the right to have issues of fact and credibility decided by the jury. See State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982). Here, the court’s remarks, viewed in the aggregate, taken together with their fair implications, worked prejudicially on the defendant because they conveyed to the jury the court’s own notions on matters solely within the jury’s province. In so doing, the court trespassed both on the jury’s function as sole arbiter of credibility and the defendant’s right to a trial in which the jury’s exercise of that function is not impeded.

Our cases hold that when error is of constitutional dimension, it is reversible unless the state proves the error harmless beyond a reasonable doubt. See State v. Lopes, supra, 78 Conn. App. 275. The state has not sustained its burden.

This is not a circumstance in which “the evidence against the accused is so overwhelming that we can conclude as a matter of law that the jury’s verdict was not influenced [by the trial court’s comments].” State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). Quite to the contrary, because of the absence of any scientific, medical or corroborating eyewitness testimony linking the defendant with the criminal activity with which he was charged, the jury’s acceptance of the victim’s testimony was the only basis on which a guilty verdict could have been returned. By effectively vouching for the victim’s credibility, the court detrimentally undermined the defendant’s theory of the case, which was, quite simply, that her testimony was not reliable. On the basis of the foregoing, we conclude that it is likely that the jury’s verdict was influenced by the court’s remarks. We accordingly find that the state failed to sustain its burden of proving that the court’s improper remarks were harmless beyond a reasonable doubt.

Related to and reinforcing our determination that the court’s remarks were not harmless was the court’s refusal to allow defense counsel to engage in meaningful cross-examination of the victim, which could have elicited impeachment evidence that may have diluted the prejudicial impact of the court’s remarks. Of the five remarks the defendant challenges on appeal, three of them were made by the court following attempts by defense counsel to question the victim as to her ability to tell the truth and, in particular, as to a prior inconsistent statement the victim had made that she did not know what it meant to tell the truth. In ail three instances, the court precluded defense counsel from questioning the victim.

Our Supreme Court has underscored the importance of cross-examination as to a minor victim’s competency, particularly when, as here, defense counsel did not otherwise have an opportunity to challenge the competency of the victim’s testimony. See State v. James, 211 Conn. 555, 565, 560 A.2d 426 (1989). In James, our Supreme Court upheld the constitutionality of General Statutes § 54-86h, the child victim competency rule, against a claim that it violates the right to confrontation by preventing defense counsel from challenging the competency of a child victim. Recognizing that “competency is closely related to credibility”; State v. James, supra, 565; the court reasoned that a child sexual assault victim is still subject to cross-examination like any other witness and that any questions defense counsel may have asked at a competency hearing could be asked during cross-examination. Id. Although it is not certain that the prohibited cross-examination in this case would have elicited information capable of mitigating the harm caused by the court’s remarks, the court’s refusal to permit that line of questioning compounded the impression created by the improper remarks.

Further reinforcing our determination that the court’s remarks were not harmless was the court’s jury instruction on the issue of the victim’s in-court identification of the defendant as the perpetrator. The court’s instruction directed the jury to accept as reliable the victim’s in-court identification of the defendant as the person who had sexually assaulted her and thereby foreclosed jury consideration on the issue of identity. In so instructing the jury, the court effectively vouched for the credibility of the victim’s testimony on the identity of the perpetrator and compounded the damage of its earlier remarks.

The inappropriateness of the court’s instruction is made apparent by the victim’s obvious difficulty identifying the defendant in court. During the state’s case-in-chief, counsel and the victim entered into the following colloquy:

“[The Prosecutor]: Okay . . . turn around and look at me if you can, please. . . . [D]o you know somebody by the name of Fredo?
“[The Victim]: Yes.
“[The Prosecutor]: Okay. Do you see Fredo in the courtroom today?
“[The Victim]: No.
“[The Prosecutor]: Are you sure?
“[The Victim]: No.
“[The Prosecutor]: If you stand up and look around, would that help you?
“[The Victim]: Mm-hmm.
“[The Prosecutor]: . . . [I]f you could, could you stand up for me, please?
“[The Victim]: Okay.
“[The Prosecutor]: And, Your Honor, with the court’s permission, if she could come down. (The witness stepped off the witness stand.) . . . Okay ... I want you to look at everybody in the court — stand right here if you can. Thank you.
“[The Victim]: Right here?
“[The Prosecutor]: Right there. Stay right there. I want you to look around the courtroom and tell me if you see anybody that you recognize as Fredo?
“[The Victim]: I don’t know. I don’t see Fredo. . . .
“[The Prosecutor]: . . . [I]f you could just look around the entire courtroom—
“[The Victim]: I don’t see Fredo.
“[The Prosecutor]: Okay. Look over here as well on the other side of the courtroom.
“[The Victim]: You mean right there?
“[The Prosecutor]: I’m not telling you anything. Do you see anybody in the courtroom that looks like the person that you know as Fredo?
“[The Victim]: Fredo? No.
“[The Prosecutor]: Are you sure?
“[The Victim]: No. . . .
“[The Prosecutor]: Again . . . could you look around the courtroom please?
“[The Victim]: Maybe the hair was gray.
“[The Prosecutor]: Maybe what?
“[The Victim]: Maybe the hair was gray.
“[The Prosecutor]: Whose hair was gray?
“[The Victim]: Maybe it was Fredo’s hair was gray.
“[The Prosecutor]: Okay. Come over here if you can. Stand right here. [The victim was brought to the center of the courtroom.] Now . . . you were just saying something a moment ago about maybe the hair was gray. Whose hair were you talking about?
“[The Victim]: Maybe was that guy right there.
“[The Prosecutor]: Which guy was that?
“[The Victim]: Look, the gray hair up top.
“[The Prosecutor]: Could you go to the person in the courtroom who you’re talking about.
“[The Victim]: Talking about?
“[The Prosecutor]: Who was the person with the gray hair that you’re talking about right now?
“[The Victim]: Right there.
“[The Prosecutor]: If you could go over to—
“[The Victim]: Next to the desk.
“[The Prosecutor]: Could you go over to that person right now.
“[The Victim]: Is he named Fredo?
“[The Prosecutor]: I’m asking — well, I’m not saying anything to you, but can you go to the person, can you point to the person that you’re speaking of. . . . Your Honor, may the record reflect she’s pointing to the defendant?
“The Court: It may so indicate.”

That dialogue not only demonstrates the victim’s difficulty in identifying the defendant, but perhaps more troubling is that it casts serious doubt on whether her responses could accurately be characterized as an identification of the defendant as the perpetrator. The excerpt raises the question of whether the victim was pointing to the defendant to identify him as the perpetrator or simply to clarify that he was the person about whom she asked the prosecutor: “Is he named Fredo?”

Notwithstanding the uncertainty surrounding the victim’s identification of the defendant, the court not only refused to charge the jury on the issue of identity, but instructed the jury not to consider the issue at all. The court instructed: “And you’ve heard argument and argument about whether or not the identification of the accused is an issue here. I’d like to bring some commonsensical approach to that. . . . The question is, is this the gentleman who was identified as being named Fredo, Alfredo, is he the one at the synagogue on the dates and times in question. . . . There isn’t any question that he’s identified to be the person there. What happened there and whether he did these things is another issue, but don’t get caught up in is [this] the man. That issue is not one that the jury should spend any time on.”

That instruction implicitly validated the credibility and the sufficiency of the victim’s in-court identification of the defendant as the perpetrator and enhanced the prejudicial impact of the court’s earlier remarks.

We also reject the argument advanced by the state that the court’s curative instruction rendered the remarks harmless. The court instructed the jury: “I made a cursory examination to determine whether she was aware of where she was. I made no determination that she could be determined by me for your benefit; I didn’t find that she’s truthful or not. That is for you.”

As a general matter, “[t]he jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court.” (Internal quotation marks omitted.) State v. Chance, 236 Conn. 31, 51, 671 A.2d 323 (1996). Although our appellate courts have always given great weight to curative instructions in assessing claimed errors; see State v. Smith, 200 Conn. 544, 552, 512 A.2d 884 (1986); State v. Fernandez, 198 Conn. 1, 17, 501 A.2d 1195 (1985); our courts have also recognized that “a curative instruction is not inevitably sufficient to overcome . . . the impact of prejudice.” (Internal quotation marks omitted.) State v. Fernandez, supra, 17.

Although it is not possible to determine with precision what prejudice a court’s remarks might have on a jury, the likelihood here of prejudice to the defendant’s case is apparent. In view of the significance of the remarks to the central issue in the trial, i.e., the victim’s credibility, and the absence of corroborative evidence of the defendant’s guilt, the claimed curative instruction was not likely to have neutralized the court’s remarks nor proscribed their prejudicial impact on the jury’s assessment of the victim’s credibility. As we are persuaded that the prejudicial impact of the court’s remarks “has probably overborne reasonable juror conscientiousness,” we cannot accept the claimed efficacy of the curative instruction. See id.

We conclude, therefore, that the court’s remarks, particularly when coupled with the restriction of the defendant’s cross-examination of the victim, improperly bolstered the credibility of the victim’s testimony in violation of the defendant’s right to a fair trial and that the court’s curative instruction did not render the comments harmless. Accordingly, we reverse the judgment of the trial court.

Although the defendant raised additional claims on appeal, we need not address them inasmuch as our holding with respect to the court’s improper remarks is dispositive. We choose, however, to address the defendant’s claim regarding the court’s denial of his motion to unseal the victim’s confidential records because that issue is likely to recur at retrial.

II

The defendant claims that the court improperly denied his motion to unseal the victim’s confidential records in.violation of his rights to due process and to a fair trial. Specifically, the defendant asserts that records generated by the department of children and families and an educational institution attended by the victim may contain information probative of past sexual abuse in the victim’s family, alternative sources of knowledge of sexual language and conduct, and the victim’s testimonial capacity. The defendant claims that the court’s refusal to permit access to the records violated his rights to due process and to a fair trial. We disagree.

On March 14, 2002, the defendant filed a pretrial motion requesting that the court unseal the victim’s confidential records. Following an in camera inspection of the records, the court denied the defendant’s motion.

“While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not an easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records.” (Internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 722, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). On review, we must determine whether the trial corut’s decision constituted an abuse of discretion. Id.

This court, on appeal, has the responsibility of conducting its own in camera inspection of the sealed records to determine if the trial court abused its discretion in refusing to release those records to the defendant. See State v. Tyson, 43 Conn. App. 61, 70, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996). We conclude that the court did not abuse its discretion.

“The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality .... Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis. ” (Citation omitted; internal quotation marks omitted.) State v. Walsh, supra, 52 Conn. App. 723. “[W]hen the trial court has reviewed the records in camera, access to the records must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Internal quotation marks omitted.) Id.

We have carefully examined the challenged records and conclude that the court reasonably could have found that they contained no information that is probative of past sexual abuse in the victim’s family, alternative sources of knowledge of sexual language or conduct, or the victim’s testimonial capacity. Accordingly, the court did hot abuse its discretion in denying the defendant’s motion to unseal the victim’s confidential records.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Though the defendant set forth seven separate issues on appeal, we combine the two issues pertaining to the court’s jury instruction.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

         On the count of sexual assault in the first degree, the defendant was sentenced to a term of fifteen years incarceration, execution suspended after twelve years with ten years probation. On the count of risk of injury to a child, the defendant was sentenced to a term of ten years, to run concurrently with the sentence for sexual assault in the first degree.

      The defendant’s second and third claims on appeal are, respectively, that the court impermissibly restricted cross-examination of the victim and issued an inappropriate jury instruction as to identification of the defendant. Inasmuch as our analysis of the court’s remarks implicates defense counsel’s cross-examination of the victim and the jury instruction, we address those matters, but do so without specifically reaching the merits of those claims.

       We note for clarity the scope of the defendant’s claim on appeal. Although the need for a hearing to determine the victim’s competency was obviated by the child witness competency rule; see General Statutes § 54-86h; the defendant does not challenge the court’s decision to conduct such a hearing. Additionally, the defendant clarified at oral argument before this court that he also does not challenge the trial court’s determination to conduct the hearing in the presence of the jury, even though he specifically requested that the hearing be conducted outside the presence of the jury. Although courts in other jurisdictions have held that it is reversible error to conduct a competency hearing in the presence of the jury; see, e.g., Commonwealth v. Washington, 554 Pa. 559, 566, 722 A.2d 643 (1998); that issue has not yet been addressed in Connecticut. As the defendant here takes issue only with the court’s remarks about the victim’s competency and not the circumstances surrounding the competency hearing, we do not address that issue.
      General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testily because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       See footnote 5.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. $7379.54 UNITED STATES CURRENCY
    (AC 23273)
    Lavery, C. J., and Bishop and Hennessy, Js.
    Submitted on briefs September 19
    officially released December 9, 2003

      Billy G. Hunt, pro se, the appellant (owner), filed a brief.

      Frank S. Maco, state’s attorney, and Leon F. Dalbec, Jr., and David Shepack, senior assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

BISHOP, J.

The pro se appellant, Billy G. Hunt, was in possession of $7379.54 in United States currency (currency) that was the subject of an in rem proceeding commenced by the state pursuant to General Statutes § 54-36h, entitled in part, “Forfeiture of moneys and property related to illegal sale or exchange of controlled substances or money laundering. . . .” Hunt appeals from the judgment of the trial court ordering the forfeiture of the currency. He claims that the state failed to present clear and convincing evidence that the currency seized from him at the time of his arrest was used in the delivery and distribution of a controlled substance. On the basis of our review of the record and briefs, we affirm the judgment of the trial court.

From the record, we glean the following facts. On June 30, 1999, a state police trooper stopped Hunt on Route 8 in Beacon Falls for operating a motor vehicle without a rear license plate. A routine police check revealed that there was an outstanding warrant for Hunt’s arrest held by the Torrington police department in connection with two narcotics sales, one occurring on May 27,1999, and the other on June 3,1999. Accordingly, Hunt was taken into custody. During processing, the trooper discovered in Hunt’s front pockets the currency that is the subject of this appeal. Those funds consisted mostly of one hundred, fifty and twenty dollar bills.

Hunt eventually was convicted on those charges. He failed, however, to appear at the sentencing hearing. As a consequence, an arrest warrant again was issued and a lengthy manhunt ensued. Hunt ultimately was detained during the course of another narcotics transaction at which time he had in his possession more than $13,000. On May 8, 2002, the court conducted a hearing pursuant to a petition brought by the state to seek forfeiture of the currency taken from Hunt on June 30, 1999. Hunt asserted that the funds were in no way connected to drug activities. He testified that he derived the seized funds from his activities as a clothing merchant. He further asserted that since 1998, he had operated a successful retail clothing and musical tape business on leased premises in Bridgeport, and that he previously had been a street vendor of clothing there. To substantiate his assertion, he presented documentary evidence of a business account at a banking institution and offered a check made payable to cash from that account in the amount of $10,000, which he had endorsed on June 18, 1999.

On cross-examination, however, the state asked Hunt why he had not filed tax returns in either 1998 or 1999 and why his business reported zero income for the period ending March 31, 1999. Hunt was unable to answer those questions and, with regard to the business, stated: “I’m not certain. But what I will say is, I mean, I probably did, because there’s a lot of times where I don’t file taxes or I won’t file them right away for the simple fact that I’m just establishing my business. You know, so there’s probably been time periods where I didn’t file them because I just didn’t feel like filing them. I didn’t want to file them. I was trying to make excessive amounts of money to establish my business and then file taxes.” Additionally, as to his claim that he was a clothing retailer, Hunt was unable to identify any wholesaler from whom he had purchased merchandise. Finally, as to his rental agreement, when asked by the state the name of his landlord in 1999, he responded: “Umm, umm — from—if I’m correct, I believe his last name was Jackson.”

Following that hearing, the court concluded that Hunt’s claim that he legitimately had earned the currency that was found in his possession through the sale of clothing and music tapes was “preposterous.” The court further determined that clear and convincing evidence demonstrated that Hunt was a longtime drug dealer, and that the currency seized from him had been used in the delivery and distribution of a controlled substance. This appeal followed.

A court’s determination that the state has met its burden of proof by clear and convincing evidence will not be overturned on appeal unless we are convinced that the court’s decision is clearly erroneous. See State v. Alterisi, 47 Conn. App. 199, 204, 702 A.2d 651 (1997). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Internal quotation marks omitted.) Lacic v. Tomas, 78 Conn. App. 406, 410-11, 829 A.2d 1 (2003).

. To make that determination, we must first look to the requirements of § 54-36h. In pertinent part, § 54-36h (a) (1) provides that “[a]ll moneys used, or intended for use, in the procurement, manufacture, compounding, processing, deliveiy or distribution of any controlled substance” shall be subject to forfeiture to the state pursuant to subsection (b) of § 54-36h. General Statutes § 54-36h (a) (1). Subsection (b) includes, as a condition of forfeiture, that at the in rem proceeding, “the state shall have the burden of proving all material facts by clear and convincing evidence. . . .” General Statutes § 54-36h (b).

Thus, to satisfy its burden of proof at the forfeiture hearing, the state was required to prove the operative facts by clear and convincing evidence. That standard is met only if “the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, [and] that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Emphasis in original; internal quotation marks omitted.) Charlton v. Commissioner of Correction, 51 Conn. App. 87, 90, 719 A.2d 1205 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).

Our review of the record leads us to conclude that the court’s determination that the state met its burden was not clearly erroneous. In assessing the record, we are mindful that the court did not find that the state had proven by direct evidence that Hunt had obtained the seized currency illegally through the sale of drugs. To be credible and rehable, however, evidence need not be direct. “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Webb, 75 Conn. App. 447, 451, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003). Moreover, as we have previously stated, “[t]here is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . [I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . State v. Chapman, 46 Conn. App. 24, 34-35, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997), cert. denied, 523 U.S. 1063, 118 S. Ct. 1393, 140 L. Ed. 2d 652 (1998).” (Internal quotation marks omitted.) In re Carissa K., 55 Conn. App. 768, 783, 740 A.2d 896 (1999). Additionally, “[c]ourts must necessarily rely on circumstantial evidence in many cases and may draw reasonable and logical inferences from [the] facts existing prior to or subsequent to an event for the purpose of reaching a conclusion of fact. Shaughnessy v. Morrison, 116 Conn. 661, 664, 165 A. 553 (1933).” (Internal quotation marks omitted.) Garrett’s Appeal from Probate, 44 Conn. Sup. 169, 186, 677 A.2d 1000 (1994), aff'd, 237 Conn. 233, 676 A.2d 394 (1996).

We therefore conclude that the court’s determination was supported by clear and convincing evidence, namely, Hunt’s history as a career drug purveyor, the similarity of circumstances of the seizure at issue to a later arrest occurring immediately after a drug transaction in which Hunt also was found to be in the possession of large sums of cash, and Hunt’s complete inability to explain credibly the source of the seized currency that was found in his possession. Because the court’s conclusion was not clearly erroneous, Hunt’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because General Statutes § 54-36h, unlike allied forfeiture statutes, General Statutes §§ 54-33g and 22a-250, does not have a provision designating the owner or possessor of currency as a party defendant in forfeiture proceedings, we refer to Hunt as the appellant and not as the defendant.

       In addition, Hunt claims that (1) the in rem proceeding violated his right against double jeopardy and (2) the trial judge abused his discretion in failing to recuse himself from the in rem proceeding. Our review of the record, however, reveals that Hunt did not raise those claims at trial. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appeEant’s claim. . . . Claims that were not distinctly raised at trial are not reviewable on appeal.” (Internal quotation marks omitted.) State v. Huff, 69 Conn. App. 51, 56, 793 A.2d 1190 (2002). Accordingly, we decline to review those issues.
      We note, however, that in United States v. Ursery, 518 U.S. 267, 292, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), the United States Supreme Court held that the double jeopardy clause does not apply to in rem civE forfeitures because such actions are civE in nature and do not involve punishment. Also, as to the recusal issue, it is weE settled that “we [wiE] not ordinarily review on appeal a claim that a trial judge should have [recused] himself . . . when no such request was made during the trial. . . . Even where a proper ground for disqualification exists, it must be asserted seasonably or it will be deemed to have been waived.” (Citation omitted.) Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982).

       Hunt also had been convicted previously of narcotics violations in 1990 and 1992.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. HOWARD GOMBERT, JR.
    (AC 23012)
    Schaller, Bishop and Hennessy, Js.

      Argued September 10
    officially released December 9, 2003

      KentDrager, senior assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Walter D. Flanagan, state’s attorney, and, on the brief, Warren Murray, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Howard Gombert, Jr., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2) and threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (l). On appeal, the defendant claims that (1) the trial court improperly allowed the victim to testify outside the presence of the defendant, (2) the court improperly allowed the state to present evidence that the defendant was incarcerated when the police interviewed him, (3) the court improperly restricted his cross-examination of J, who was his girlfriend, (4) the state failed to produce sufficient evidence to support a conviction of attempt to commit sexual assault in the first degree, and (5) this court should review the sealed records of the victim to determine whether the trial court failed to order disclosure of exculpatory information. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1999 the defendant was living with and dating J. J, who had known the victim’s family for years, introduced the defendant to the victim and the victim’s family. The victim was approximately eight years old; the defendant was in his mid-thirties.

In July, 1999, the victim slept at J’s house. Dining the next day, the defendant and the victim left J’s house to go swimming at Squantz Pond. Before going to the pond, the defendant stopped and purchased a two piece bathing suit for the victim. The defendant stopped at his father’s house and had the victim put the bathing suit on. They then went to the pond.

At the pond, the defendant took the victim swimming. After swimming for a while, the defendant took the victim into a wooded area some distance from where people were swimming. The defendant pulled the bottom part of the victim’s bathing suit down and pressed his penis into her buttocks. The defendant’s penis did not penetrate the victim’s anus; rather, it was pressed between the cheeks of the victim’s buttocks. The victim was scared and began to scream, but stopped when the defendant threatened her. The assault lasted between one and ten minutes. After the assault, the victim put her bathing suit on, and the defendant took photographs of her with his camera. The defendant and the victim then returned to J’s house. The victim remained silent about the assault because she was afraid of the defendant. The defendant continued to visit the victim’s house and gave the victim several presents, including high heels, undergarments and miniskirts. The victim revealed the assault to a friend approximately one year later. The friend immediately told the victim’s mother about the assault. The police were contacted, and the defendant was arrested. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly allowed the victim to testify on videotape outside the presence of the defendant. The defendant argues that the court abused its discretion by allowing the victim to testify outside his presence because the state failed to show, by clear and convincing evidence, that the victim’s testimony would have been less reliable if she were required to testify in his presence. He further argues that this mistake deprived him of his constitutional right to confrontation. We disagree.

Additional facts are necessary for the resolution of the defendant’s claim. Prior to trial, the state moved, pursuant to General Statutes § 54-86g, to have the testimony of the victim taken outside the presence of the defendant. The court held a hearing to determine whether the victim had the ability to testify reliably in the presence of the defendant. At the hearing, the victim’s mother testified that she had been first told about the sexual assault by the victim’s friend. When the mother questioned the victim, the victim told her that the defendant had threatened her, stating, “[d]on’t scream, or I’m going to kill you.” The mother also testified that the victim feared the defendant, even though she had told the victim, “[h]e can’t hurt you. He can’t hurt you. Mommy’s not going to let that happen.” The mother attributed that fear to the threat and the victim’s knowledge that the defendant had assaulted J. Most importantly, the following colloquy took place between the mother and the prosecutor:

“[The Prosecutor]: Would your — would your daughter testify — if your daughter were called into this court to testify, would [the defendant’s] presence affect her testimony?
“[The Witness]: She won’t walk in this courtroom.
“[The Prosecutor]: She what?
“[The Witness]: She wouldn’t walk in this courtroom with him here.
“[The Prosecutor]: Why?
“[The Witness]: She’s scared to death of him.
“[The Prosecutor]: Have you ever specifically asked her that question, whether she would testify in front of him? And her response is?
“[The Witness]: No.
“[The Prosecutor]: How recently have you discussed this topic of whether she will testify or whether she’s still afraid of [the defendant] with your daughter?
“[The Witness]: Two days ago.”

The court also heard testimony from Marion Gaetano, the coordinator of the rape crisis unit of the Center for Women and Families in Bridgeport. Gaetano is a counselor at the center and a member of its multi-interdisciplinary investigative team, the purpose of which is to help reduce the trauma of children who disclose a sexual assault. Gaetano explained that the victim and J were very close, and that the victim viewed J as an aunt. Gaetano further testified that the victim would “just shut down” and would not testify if the defendant were present. Further, Gaetano stated that because of the victim’s sense of shame, humiliation and embarrassment stemming from the sexual assault, the victim would not be able to testify in a free and uninhibited fashion.

The court also heard testimony from James Fletcher, a senior assistant state’s attorney. Fletcher testified that the defendant had been convicted of several crimes of violence against J, including sexual assault in the third degree, assault in the second degree, assault in the third degree, unlawful restraint and criminal violation of a protective order.

The court ruled that the victim would be permitted to testify outside of the presence of the defendant. The court credited the testimony of the victim’s mother and Gaetano, and stated that “the child victim in this case is intimidated and fearful of the defendant to the point where she would not be able to give reliable testimony if she were required to testify in the defendant’s physical presence.” The court went on to state that its “primary focus [was] on the reliability of the minor victim’s testimony, not on the injury that the minor victim may suffer by testifying in the presence of the accused.”

Our standard of review is well established. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.” (Internal quotation marks omitted.) State v. Hydock, 51 Conn. App. 753, 761, 725 A.2d 379, cert. denied, 248 Conn. 921, 733 A.2d 846 (1999). “This involves a two part function: where 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; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66-67, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989). “In evaluating preliminary determinations of the trial court in a criminal case, [t]he evidence will be construed in a way most favorable to sustaining the [determination] . . . .” (Internal quotation marks omitted.) State v. Hydock, supra, 761.

“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. ... [A] trial court must balance [in a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence.” (Emphasis in original; internal quotation marks omitted.) State v. Alterisi, 47 Conn. App. 199, 203-204, 702 A.2d 651 (1997). The defendant’s right to confrontation is not violated when the state shows, by clear and convincing evidence, that if the victim testified in the defendant’s presence, the victim’s testimony would be less rehable or accurate. See State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

In this case, the court heard testimony that the victim was so afraid of the defendant that she would not be able to testify. Gaetano stated that the victim would “shut down” in the presence of the defendant. The court also was aware that the victim’s fear stemmed from more than the death threat; the court heard testimony that the victim was aware that the defendant had violently attacked J, whom the victim viewed as an aunt. Thus, the court reasonably could have concluded that the victim’s well founded fear of the defendant caused an inability, rather than unwillingness, to testify. The victim’s complete inability to testify destroys any opportunity for reliable or accurate testimony. Viewing the evidence in the fight most favorable to sustaining the court’s determination, the court’s decision that the state had shown by clear and convincing evidence there was a compelling need to videotape the victim’s testimony was not clearly erroneous. The defendant’s confrontation rights, therefore, were not violated.

The defendant argues that State v. Bronson, 258 Conn. 42, 779 A.2d 95 (2001), controls. In Bronson, our Supreme Court noted that in a Jarzbek hearing, it was inappropriate to focus on the victim’s emotional needs rather than on the reliability of the victim’s testimony. Id., 54-55. Here, the court correctly concentrated on the victim’s reliability and not on her preferences. Although the court was forced to address the emotional needs of the victim in that her fear of the defendant formed the basis of her inability to testify, the court appropriately focused on whether the victim would be reliable. The victim’s inability to testify, and not the victim’s fear of the defendant, was the basis for allowing her testimony to be taken outside the presence of the defendant. See State v. Alterisi, supra, 47 Conn. App. 205 (intimidated by defendant’s presence, victims permitted to testify out of defendant’s presence to assure reliability of their testimony). Bronson, therefore, is inapposite.

II

The defendant’s second claim is that the court improperly allowed the state to present evidence that the defendant was incarcerated when the police interviewed him. The defendant argues that the location of the interview had no probative value, was overly prejudicial and was therefore inadmissible. We are not persuaded.

Additional facts are necessary for the resolution of the defendant’s claim. After the police received the complaint of the sexual assault, state police Troopers David Delvecchia and Edwin Olavarria were sent to interview the defendant. The interview took place in the Bridgeport Correctional Center, where the defendant was incarcerated. The defendant waived his right to remain silent and denied any involvement in the sexual assault.

Prior to trial, the defendant filed a motion in limine to preclude certain portions of his interview with the troopers. During argument on the motion, the defendant sought to preclude the troopers from testifying about the location of the interview. The defendant argued that the location of the interview was irrelevant and prejudicial. The state argued that the location of the interview was merely a fact of the case. The court granted the motion in part and denied the motion in part, but ruled to allow the testimony about the location, stating that it “says nothing about why [the defendant] was there, how long he was there; it’s really not misconduct more or less. ... I don’t think it’s unduly prejudicial . . . .’’At trial, Delvecchia and Olavarria both testified that the interview took place at the Bridgeport Correctional Center. In addition, Delvecchia testified that the defendant was an inmate of the facility.

“We first set forth our standard of review. We have generally held that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 28-29, 830 A.2d 240 (2003).

Connecticut Code of Evidence § 4-1 provides in relevant part that “ ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” As it is used in the code, relevance represents two distinct concepts: Probative value and materiality. Conn. Code Evid. § 4-1, commentary. Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence. State v. Gibson, 75 Conn. App. 103, 110, 815 A.2d 172, cert. granted on other grounds, 263 Conn. 906, 819 A.2d 840 (2003). “[I]t is not necessary that the evidence, by itself, conclusively establish the fact for which it is offered or render the fact more probable than not.” Conn. Code Evid. § 4-1, commentary. In contrast, materiality “turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law.” (Emphasis added.) Id. If evidence is relevant and material, then it may be admissible. See id., 4-2.

When determining admissibility, however, relevance and materiality are not the only factors. “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Id., § 4-3.

Evidence as to the location of the interview had little or no relevance or materiality under the circumstances of this case. Evidence of the location, however, was prejudicial because it revealed that the defendant was an inmate at the time of the interview. We need not, however, decide whether the court abused its discretion in admitting the evidence because, even if we assume that the evidence was admitted improperly, the admission was harmless. See State v. Rivera, 74 Conn. App. 129, 152, 810 A.2d 824 (2002).

Because that was an evidentiary ruling, the defendant bears the burden of proving the harmfulness of the alleged error. See State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998). There are presently two standards for establishing harmfulness. Id. One standard “states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. ... A second [standard] indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict.” (Citations omitted; internal quotation marks omitted.) Id. Our Supreme Court has indicated that there may be no analytical difference between the two standards. See State v. Young, 258 Conn. 79, 95, 779 A.2d 112 (2001) (applying both standards, noting there may be no difference between the two). Notwithstanding their potential similarity, we will apply both.

Here, the defendant cannot show that the admission of the challenged evidence was harmful. The evidence was presented in passing, and neither the prosecutor nor defense counsel focused their examinations on that evidence. Further, the evidence was not a central feature of the closing arguments. Although in closing argument, the prosecutor and defense counsel each mentioned that the defendant had been incarcerated at the time of the interview, their references to that fact were in the context of larger discussions about other issues. Additionally, the defendant was presented in court as being at liberty; he was not shackled, and he wore street clothes. Moreover, the court gave an adequate presumption of innocence charge that would have precluded the jury from misusing the information. See State v. Tucker, 226 Conn. 618, 627-29, 629 A.2d 1067 (1993) (court referring to defendant as “prisoner” did not deprive defendant of fair trial because, among other things, court instructed jury on presumption of innocence and jury presumed to follow law). The defendant has not shown that it was more probable than not that the challenged evidence affected the result of the trial. The defendant has also not shown that the admission of that evidence undermined confidence in the fairness of the verdict. The defendant’s claim fails.

Ill

The defendant’s third claim is that the court improperly restricted his cross-examination of J. The defendant argues that the court’s restriction of cross-examination denied him his constitutional rights to confrontation and to present a defense. We disagree.

Additional facts are necessary for the resolution of the defendant’s claim. During the defendant’s cross-examination of J, the defendant sought to ask her whether there was inappropriate sexual behavior in the victim’s home that could have given the victim the knowledge to be able to fabricate the present allegation of sexual assault. After an objection by the state on the ground of relevance, defense counsel argued: “The relevance, [the victim] has testified, Your Honor, that she couldn’t remember whether, when she was allegedly assaulted by [the defendant], that she was forward or backward, yet she clearly has stated in some of her statements that his penis touched her and touched her skin. I’m trying to establish how she would have knowledge of male anatomy, her familiarity with male anatomy, her familiarity with overt sexuality. I’m trying to challenge, in other words, [the victim’s] knowledge.” The court sustained the objection, ruling that it was “not sure how [J’s] knowledge of any inappropriate sexual activity in [the victim’s] home, if there was such inappropriate activity, has a bearing on [the victim’s] knowledge about the male anatomy. It sounds speculative to me ... . [T]he question is calling for speculation.”

We review the court’s decision regarding the admissibility of evidence to determine if the court has abused its discretion. See State v. Reynolds, 264 Conn. 1, 59, 836 A.2d 224 (2003). “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. 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.” Id.

A

The defendant argues that the court’s decision to restrict cross-examination denied him his right to confrontation. “[T]he defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation [for] testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause [of the sixth amendment to the United States constitution], the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable.” (Internal quotation marks omitted.) Id., 58-59.

Further, the confrontation clause does not allow the defendant to introduce speculative evidence; “[i]t is entirely proper for a court to deny a request to present certain testimony that will further nothing more than a fishing expedition . . . .” (Citations omitted; internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 749-50, 657 A.2d 611 (1995). “Evidence is too speculative if the record makes it clear that there was no basis for finding that the testimony would bear on relevant facts.” (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 516, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). Thus, because the confrontation clause does not abrogate the rules of evidence, if the decision of the court regarding the evidence was within the court’s discretion, the defendant’s right to confrontation was not violated.

Here, the evidence the defendant sought to present was speculative. J’s potential knowledge of whether there was inappropriate sexual behavior in the victim’s home would not assist the jury in determining if the victim was being truthful. Even if we assume that J had indicated that there was some sort of inappropxiate sexual behavior, that would not have provided the jury with any evidence that the victim was aware of that behavior or that she was influenced by that behavior to fabricate a story. Defense counsel stated that she was attempting to challenge the victim’s knowledge. Any answer elicited from her questions, however, would have required J to speculate as to whether the victim was aware of the behavior or would have been irrelevant had the victim not been aware of the behavior. Therefore, the court did not abuse its discretion by precluding that line of inquiry. Thus, the defendant’s right to confrontation was not violated.

B

The defendant also argues that the court’s restriction of cross-examination denied him his right to present a defense. “The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” (Internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 541-42, 821 A.2d 247 (2003).

“A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Citation omitted; internal quotation marks omitted.) Id., 542.

On the basis of our analysis in part III A, the defendant’s right to present a defense was not violated because the court did not abuse its discretion when it restricted the cross-examination of J.

IV

The defendant’s fourth claim is that the state produced insufficient evidence to establish his conviction of attempt to commit sexual assault in the first degree. The defendant argues that the state failed to prove that he had the specific intent to engage in sexual intercourse with the victim.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ashe, 74 Conn. App. 511, 516, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

The defendant was charged with attempt to commit sexual assault in the first degree in violation of § 53a-70 (a) (2), which is violated when a person “engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .” General Statutes § 53a-70 (a) (2). Sexual intercourse is defined in relevant part as “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. . . . Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.” General Statutes § 53a-65 (2).

An attempt occurs when a person “intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituí-ing a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a) (2). As a matter of law, a substantial step toward the completion of a crime occurs if a defendant takes an action “enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission . . . .” General Statutes § 53a-49 (b) (2). Regarding intent, “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” General Statutes § 53a-3 (11). Hence, to be guilty of the crime of attempt to commit sexual assault in the first degree under the state’s theory of the case, the jury must have found that the defendant consciously and intentionally completed substantial steps toward causing penetration of the victim during vaginal intercourse, anal intercourse or fellatio.

The state presented facts from which the jury reasonably could have found the defendant guilty. The jury reasonably could have inferred that the defendant’s acts of taking the victim swimming in a secluded area and placing his penis between the cheeks of her buttocks constituted substantial steps toward completing the crime. The jury reasonably could have inferred the requisite intent to commit the crime from the fact that the defendant, by taking the victim swimming at a secluded location, isolated her from other adult caretakers.

The defendant argues that there was insufficient evidence as a matter of law to show his intent to penetrate the victim. The defendant argues that because the assault was uninterrupted and he did not penetrate the victim, his intent could not have been to penetrate her. “[I]t is well established that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide. . . . State v. Smith, 46 Conn. App. 321, 326, 699 A.2d 262 (1997).” (Internal quotation marks omitted.) State v. Servello, 59 Conn. App. 362, 369, 757 A.2d 36, cert. denied, 254 Conn. 940, 761 A.2d 764 (2000).

The facts the defendant relies on are equivocal, and the jury reasonably could construe them against him. The jury reasonably could have found that the victim’s screaming caused the defendant to panic and to decide to stop the assault. That inference would be supported by the victim’s testimony that the assault was brief. Thus, there clearly was sufficient evidence for the jury reasonably to infer that the defendant’s goal was to cause penetration, but that he was dissuaded from completing the assault because of the way the situation unfolded. Therefore, viewing the evidence in the light most favorable to sustaining the verdict, we conclude that there was enough evidence for the jury to find, beyond a reasonable doubt, that the defendant was guilty of attempt to commit sexual assault in the first degree.

V

The defendant’s final claim is that we should review the sealed records of the victim to determine whether the court failed to disclose exculpatory information. After our review of the records, we conclude that the court did not abuse its discretion in determining that all exculpatory information had been given to the defendant.

Additional facts are necessary for the resolution of the defendant’s claim. After the assault, the victim and her mother spoke with individuals associated with the department of children and families, the Bridgeport Center for Women and Families, and the Children’s Connection of Fairfield County. Prior to trial, the defendant filed a motion requesting the court to conduct an in camera review of the victim’s records from the previously mentioned organizations to determine if there was any exculpatory information contained in the records. The state obtained the necessary waivers, and the court conducted its review. On the basis of that review, the court revealed that there was a prior inconsistent statement and a statement of bias against the defendant.

The standard of review is well established. We review the court’s decision not to release confidential records to determine if the court abused its discretion. State v. Olah, 60 Conn. App. 350, 354, 759 A.2d 548 (2000); see also State v. Gainey, 76 Conn. App. 155, 158, 818 A.2d 859 (2003). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) State v. Olah, supra, 354.

We have reviewed the confidential records and find no additional exculpatory information. Accordingly, the court did not abuse its discretion when it determined that all exculpatory information had been given to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a . . . class C felony.”

       General Statutes (Rev. to 1999) § 53a-62 (a) provides in relevant part: “A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . .

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify J, a victim of sexual assault, or others through whom the identify of the victim in this case may be ascertained. See General Statutes § 54-86e.

       Squantz Pond is part of the Squantz Pond State Park in New Fairfield.

       When the victim revealed the assault to her friend, the victim was aware that the defendant was incarcerated for a variety of crimes committed against J.

       General Statutes § 54-86g provides: “(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.
      “(b) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken: (1) Persons shall be prohibited from entering and leaving the courtroom during the child’s testimony; (2) an adult who is known to the child and with whom the child feels comfortable shall be permitted to sit in close proximity to the child during the child’s testimony, provided such person shall not obscure the child from the view of the defendant or the trier of fact; (3) the use of anatomically correct dolls by the child shall be permitted; and (4) the attorneys for the defendant and for the state shall question the child while seated at a table positioned in front of the child, shall remain seated while posing objections and shall ask questions and pose objections in a manner which is not intimidating to the child.”

       That type of hearing generally is referred to as a Jarzbek hearing in light of State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

       No evidence of those crimes was introduced at trial.

       The question was cut off by an objection:
      “[Defense Counsel]: . . . Has there ever been an instance of sexually inappropriate behavior in [the victim’s] home that might lead her—
      “[The Prosecutor]: Objection. Relevance.”
      After argument outside the presence of the jury, defense counsel tried to ask the question in a different form:
      “[Defense Counsel]: . . . [A]re you aware of instances of sexually inappropriate behavior in [the victim’s] home?
      “[The Prosecutor]: Objection. Relevance.”

       The jury also would have to find, beyond a reasonable doubt, that the victim was younger than thirteen years of age, although that fact was not in dispute.

       We note that the defendant’s decision to stop the assault would not constitute renunciation. Renunciation of a crime must be voluntary; “renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension . . . .” General Statutes § 53a-50; see also State v. Servello, supra, 59 Conn. App. 375-76.


author: DiPENTIMA, J.

text:
    DANIEL HENDERSON v. COMMISSIONER OF CORRECTION
    (AC 23253)
    Schaller, DiPentima and Mihalakos, Js.

      Argued September 12
    officially released December 16, 2003

      Richard R. Brown, with whom, on the brief, was Robert T. Rimmer, for the appellant (petitioner).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, Daniel Henderson, appeals from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that (1) he was not entitled to a review of the constitutionality of General Statutes § BS&AOb, the sentencing statute under which his sentence had been enhanced, and (2) the sentencing court had not sentenced him in an illegal manner. We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. The petitioner was charged with two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b and one count of forgery in the second degree in violation of General Statutes § 53a-139. The petitioner pleaded not guilty and elected a jury trial. At trial, the state proved that the petitioner, on August 11, 1993, knowingly used a fraudulent money order in the amount of $250 to pay a $170 restaurant check and accepted $80 in change. The defendant was convicted on all counts.

Following the conviction, the defendant admitted to being a persistent larceny offender pursuant to General Statutes § 53a-40 (e). He further admitted to committing the crimes while he was released on bond pending two other criminal cases, making him subject to an enhanced sentence pursuant to § 53a-40b.

The office of adult probation prepared a presentence investigation report despite the fact that the petitioner failed to appear for an interview relative to that report. The report was available to the court at the sentencing hearing on January 24, 1995. The petitioner failed to appear at the hearing. The petitioner’s counsel, Elisa L. Villa, requested a continuance to determine her client’s whereabouts, but the court denied the request. After hearing arguments, the court sentenced the petitioner, in absentia, to five years imprisonment for the forgery conviction and a consecutive sentence enhancement of ten years imprisonment for violation of § 53a-40b.

On February 22, 1995, the petitioner appealed from the judgment of conviction. This court dismissed his appeal on April 5, 1995, because his whereabouts were unknown at that time. See State v. Henderson, 235 Conn. 901, 665 A.2d 903 (1995) (certification to appeal from this court’s dismissal denied). After the appeal was dismissed, the petitioner began serving his sentence. On November 4, 1996, the petitioner filed his petition for a writ of habeas corpus, alleging that Villa had provided ineffective assistance of counsel because she failed to inform the trial court that his alleged intoxication during trial had caused him to be mentally incompetent and unable to participate in the proceedings. Attorneys John R. Williams and Glenn M. Conway represented the petitioner in that proceeding. The habeas court, Hon. Anthony V. DeMayo, judge trial referee, found that the petition lacked merit and rendered judgment of dismissal. The petitioner appealed, and this court affirmed the judgment. Henderson v. Commissioner of Correction, 60 Conn. App. 911, 762 A.2d 526 (2000).

On September 7,1999, the petitioner filed his second petition for a writ of habeas corpus. The court, White, J., held a hearing on the petition on February 4, 2002. In his second habeas petition, the petitioner alleged that (1) he had received ineffective assistance of counsel in his representation by his criminal trial counsel and by his first habeas counsel because of their failure to challenge the constitutionality of § 53a-40b, and (2) the sentencing judge imposed the sentence enhancement in an illegal manner. The habeas court dismissed the petition in its entirety and granted certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

The standard of review of a habeas court’s judgment is well established. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 68 Conn. App. 190, 192, 791 A.2d 588, cert. denied, 260 Conn. 910, 795 A.2d 544 (2002). “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Johnsons v. Commissioner of Correction, 66 Conn. App. 850, 851, 785 A.2d 1225 (2001).

I

The petitioner argues that the issue before this court is whether he was entitled to a review of the constitutionality of § 53a-40b. Because this is an appeal from the dismissal of a petition for a writ of habeas coipus, the issue is framed more properly as whether the petitioner’s criminal trial counsel and his first habeas counsel provided ineffective assistance when each failed to challenge the constitutionality of § 53a-40b.

The petitioner contends that a reasonably competent attorney would have argued that § 53a-40b permits the imposition of arbitrary sentence enhancements, and deprives him of reasonable notice and an opportunity to be heard regarding the factual basis for his enhanced sentence. The petitioner further contends that a competent attorney would have argued that the absence of objective sentencing criteria in the statute gives the trial court unfettered discretion to impose excessive or unreasonable sentences.

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [CJounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Braham v. Commissioner of Correction, 72 Conn. App. 1, 5-6, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).

The petitioner claims that counsels’ failure to identify and to present a valid constitutional argument constitutes deficient performance. The petitioner further argues that to determine whether counsels’ performances were deficient, the court had to consider the constitutionality of § 53a-40b. We disagree.

“[T]he Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise eveiy conceivable constitutional claim.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214 (1991), quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). “The [petitioner] is also not guaranteed assistance of an attorney who will make no mistakes. . . . What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation.” (Citation omitted; internal quotation marks omitted.) Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 219, 650 A.2d 602 (1994).

The habeas court found that the petitioner had “failed to prove by a preponderance of the evidence that any of his counsel represented him in a manner that fell below an objective standard of reasonableness.” The petitioner offered no evidence during the habeas trial regarding his representation by Conway in the first habeas proceeding. The court thus denied the habeas petition with respect to that claim.

With respect to Williams’ representation in the same habeas proceeding, the petitioner cites Williams’ statement that he should have attacked the constitutionality of § 53a-40b to underscore the argument that Williams’ assistance was ineffective. Williams testified that he believed he should have raised the constitutionality of the statute and that in hindsight, he was constitutionally ineffective due to his failure to do so. The court found, however, that Williams, “a practicing attorney with approximately thirty years . . . experience,” believed that limiting his arguments to the strongest issues favoring his client increased the likelihood of success. The court farther found that “even though Williams currently second-guesses himself about his failure to argue the constitutional claims in addition to or in lieu of [other claims asserted at habeas trial], there is insufficient credible evidence to overcome the presumption that Williams acted competently and that the habeas trial strategy actually employed was sound.”

Likewise, the court found Villa’s failure to raise the constitutionality of the sentencing statute to be “understandable.” Moreover, the court found that Villa had provided effective assistance and offered sound arguments regarding the minor nature of the crime for which the petitioner was convicted, his nonviolent record, his desire for drug treatment and his family background. Thus, the petitioner failed to prove that Villa’s assistance was constitutionally defective.

The petitioner asks this court, as he asked the habeas court, to review the constitutionality of § 53a-40b. Because we agree with the habeas court that the failure to raise a challenge to § 53a-40b did not constitute ineffective assistance of counsel, we decline to do so. See Johnson v. Commissioner of Correction, supra, 218 Conn. 423-29.

II

The petitioner next claims that the habeas court improperly concluded that the trial court did not sentence him in an illegal manner. Specifically, the petitioner argues that there is no evidence that the court reviewed the presentence investigation report prior to the imposition of the sentence, pursuant to General Statutes § 54-91a, that the court failed to consider the factual circumstances underlying the predicate charges on which the court imposed the § 53-40b sentencing enhancement and that the court failed to articulate the sentence enhancement.

Our Supreme Court has stated that before seeking to correct an illegal sentence in the habeas court, “a defendant either must raise the issue on direct appeal or file a motion pursuant to [Practice Book] § 43-22 with the trial court.” Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). A review of the record shows that the petitioner did not file a motion in the trial court, pursuant to Practice Book § 43-22, to correct his sentence, nor did he raise that issue on appeal after the imposition of that sentence. The habeas court found that the petitioner was not entitled to review of his claim because he had failed to satisfy the condition precedent to challenging in a habeas petition an illegally imposed sentence. See Cobham v. Commissioner of Correction, supra, 39. We agree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-40b provides that “[a] person convicted of an offense committed while released pursuant to sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, other than a violation of section 53a-222, may be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor.”

       General Statutes § 53a-40 (e) provides that “[a] persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1, 1982, or larceny in the fourth, fifth or sixth degree, and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.”

       The defendant submitted a written statement, delivered by his parents and his trial counsel, which implied that he was unable to attend court because he required drug treatment before going to jail.

       Because the petitioner’s whereabouts were unknown, the state filed a motion to dismiss on March 7, 1995. The petitioner surrendered to police on the morning of April 5, 1995. Nonetheless, this court granted the state’s motion to dismiss later that day.

       Because the petitioner failed to prove deficient performance, we need not consider the prejudice prong of the Strickland test. See Braham v. Commissioner of Correction, supra, 72 Conn. App. 11.

       Practice Book § 43-22 provides in relevant part that “[t]he judicial authority may at any time correct an illegal sentence ... or any other disposition made in an illegal manner.”