author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. NORMAN J. HAUGHEY
    (AC 30862)
    DiPentima, C. X, and Gruendel and McDonald, Js.

      Argued April 6
    officially released September 21, 2010

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Robin S. Schwartz, special assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, Jr., and Gary W. Nicholson, senior assistant state’s attorneys, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Norman J. Haughey, appeals from the judgment of conviction, following a jury trial, of two counts of murder in violation of General Statutes § 53a-54a (a), two counts of felony murder in violation of General Statutes § 53a-54c and capital felony in violation of General Statutes § 53a-54b (7). On appeal, the defendant claims that the trial court improperly (1) denied his Batson objections to several of the state’s peremptory challenges during jury selection, and (2) admitted as evidence certain DNA test results and expert testimony linking him to physical evidence recovered from the scene of the crime. The defendant argues that these asserted errors entitle him to a new trial. We disagree and accordingly affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Sometime in the late evening of December 1,2003, the defendant visited the home of the victims, Donna Sosa and Mary Tomasi, located on Albert Street in Ham-den. The defendant was personally familiar with the victims, as his grandmother, with whom he occasionally shared a residence, lived on Green Hill Road, which abutted the victims’ property. Intent on acquiring money to support his crack cocaine addiction, the defendant gained access to the victims’ home and shortly thereafter attacked Sosa in the kitchen, stabbing her repeatedly in the face, neck and right shoulder. The defendant then proceeded upstairs armed with a ten pound dumbbell retrieved from the living room floor, where he found Tomasi sleeping in her bedroom. After striking Tomasi in the face with the dumbbell, fracturing her skull, the defendant searched through her purse, stealing cash and several blank checks, which he later forged in an attempt to acquire additional funds. Sosa and Tomasi died from these attacks.

The defendant subsequently was arrested and charged with two counts of murder in violation of § 53a-54a (a), two counts of felony murder (burglary) in violation of § 53a-54c and one count of capital felony in violation of § 53a-54b (7). A jury trial followed and the defendant was convicted on all counts. At sentencing, the court merged the conviction of the murder and felony murder charges with the capital felony conviction, imposing a term of life imprisonment without the possibility of release. This appeal followed. Additional facts will be set forth as necessary.

I

BATSON CLAIM

The defendant first claims that the court improperly denied his Batson objections regarding the state’s use of peremptory challenges to excuse three potential jurors. We disagree.

In reviewing the defendant’s Batson claims, we adhere to well established legal principles. “In Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)], the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system , as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the [e]qual [protection [c]lause forbids the prosecutor to challenge potential jurors solely on account of their race ....

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

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

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

“Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Monroe, 98 Conn. App. 588, 590-92, 910 A.2d 229 (2006), cert. denied, 281 Conn. 909, 916 A.2d 53 (2007). With that standard in mind, we consider the defendant’s Batson claims in turn.

A

Venireperson C. S.

C. S. testified during voir dire that she resided in Meriden with her family and three year old daughter. She further testified that she attended Central Connecticut State University part-time during the evening and was working toward completing her undergraduate degree. As an administrative assistant for a state vendor, C. S. stated that her employment consisted mainly of taking “a lot of phone calls” and performing other secretarial services. At the conclusion of her examination, the state exercised a peremptory challenge to excuse her, and the defendant raised a Batson challenge. When asked to provide a race neutral explanation for removing C. S. from the panel, the prosecutor stated that, in his opinion, C. S. lacked the life experiences necessary to serve as an effective juror in the defendant’s trial. The defendant countered that, as compared with other members of the petit jury already accepted, C. S. “seemed more mature” and implied that the state’s motivation behind its challenge was racially discriminatory. Importantly, however, the defendant at no time conclusively identified C. S.’s race or ethnicity. In fact, nowhere in the record is C. S.’s racial makeup definitively established.

We cannot say, in light of C. S.’s entire voir dire examination, that the prosecutor’s stated concern that she lacked the necessary “life experiences” to be an effective juror in the defendant’s trial was mere pretext. See State v. McDougal, 241 Conn. 502, 520, 699 A.2d 872 (1997) (concluding state’s use of peremptory challenges against “young persons” did not violate defendant’s due process rights under Batson and Connecticut constitution). This is especially true given the inadequacies of the record as to C. S.’s racial identity. In the absence of a sufficient record, this court will not presume that C. S. was or was not a member of a particular minority group. See State v. Lane, 101 Conn. App. 540, 548-49, 922 A.2d 1107 (“we cannot review any Batson claim . . . that the defendant may have . . . regarding the state’s use of its peremptory challenge against [a particular venireperson] because of a lack of a sufficient record”), cert. denied, 283 Conn. 910, 928 A.2d 538 (2007); States. Young, 76 Conn. App. 392, 398, 819 A.2d 884 (“the appellant bears the burden of providing an appellate court with an adequate record for review” [internal quotation marks omitted]), cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003).

Nor do we agree with the defendant’s argument that the United States Supreme Court’s decisions in Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008), and Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005), allow this court to consider unpreserved disparate treatment analyses for the first time on appeal, even if we assume that C. S. is a member of a minority group. As the defendant conceded during oral argument, in both Snyder and Miller-El, the record sufficiently identified the racial makeup of the challenged jurors such that a disparate treatment analysis properly could take place on appeal. See Snyder v. Louisiana, supra, 477-78; Miller-El v. Dretke, supra, 235-36. That is not the case here, and we decline to engage in a disparate treatment analysis that is unsupported by the record. See, e.g., State v. Hodge, 248 Conn. 207, 227, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).

B

Venireperson D. V.

D. V., a twenty-one year old African-American male from New Haven, testified that he lived with his parents and two month old son while working for Burger King. At the conclusion of D. V.’s examination, the state exercised a peremptory challenge, and the defendant requested a race neutral explanation. The state responded that it was concerned with D. V.’s “limited educational background [and] limited life experiences . . . .” Additionally, the state indicated that it was concerned with D. V.’s familiarity with the Brookside apartment complex, as the state intended to elicit testimony during trial that the defendant had frequented the Brookside apartments to purchase drugs. In contrast, the defendant argued that considerations as to D. V.’s age were inappropriate in assessing the neutrality of the state’s justification for excusal and explained that, as to D. V.’s familiarity with Brookside, another juror, T. F., with comparable familiarity with the Brookside apartments, already had been accepted as a juror by the state. Also, defense counsel commented that it was “somewhat curious” that the state excused D. V. but accepted a Caucasian juror, M. S., who was twenty-six years old, a graduate of Southern Connecticut State University, and worked as an assistant manager for a package store.

Although the defendant asserts on appeal that D. V.’s personal experience with the Brookside apartments was comparable to that of T. F., he failed to raise this specific argument during voir dire and, thus, the record is insufficient to permit our review. See State v. Hodge, supra, 248 Conn. 227.

As to M. S., we agree with the state that the record supports the court’s determination that the reasons offered for excluding D. V., when compared with M. S., were, not pretextual. “[T]he failure to strike a white juror who shares some traits with a struck black juror does not itself automatically prove the existence , of discrimination.” (Emphasis in original; internal quotation marks omitted.) Id., 237. For example, in Hodge, our Supreme Court concluded that the state’s acceptance of a white juror with limited formal education, when compared to the exclusion of an African-American juror, also with limited formal education, did not support a Batson violation. Id., 234-38. Because the state had independent grounds on which to base its acceptance of the white juror, our Supreme Court found that the shared characteristics between the two venirepersons were inconclusive as to racial animus in the state’s challenge. Id., 237-38.

Here, although D. V. and M. S. may have been of similar ages, the record reveals that they also differed in important respects such that the state legitimately may have been more concerned with accepting D. V. than M. S. as a juror. Specifically, M. S. had graduated from Southern Connecticut State University with a bachelor’s degree in history, while D. V. possessed a high school education and some college level courses; M. S. worked in a managerial position for a package store, while D. V. worked as a cashier for Burger King; M. S. lived in his own residence, while D. V. lived in his parents’ home; and D. V. had familiarity with the Brookside apartments, whereas there is no showing of such familiarity on the part of M. S. Notwithstanding the fact that M. S. and D. V. may have shared some identifiable characteristics, we conclude that the state had sufficient reasons to select M. S. while excusing D. V. Because the defendant failed adequately to “demonstrate that the [state’s] articulated reasons [were] insufficient or pretextual”; (internal quotation marks omitted) State v. Monroe, 98 Conn. App. 591; the court’s rejection of the defendant’s Batson challenge with respect to D. V. was not clearly erroneous. See id., 592.

C

Venireperson B. C.

B. C. testified that she resided in New Haven, and, prior to becoming disabled, had worked as a cashier at various establishments. She also testified that she previously had been convicted of possession of crack cocaine with intent to sell, for which she received inpatient rehabilitative treatment. With regard to her criminal conviction, B. C. further stated that she had been represented by the New Haven public defender’s office. At the conclusion of her examination, the state initially challenged B. C. for cause, given her previous relationship with the public defender’s office. The court denied this challenge and, thereafter, the state exercised a peremptory challenge, at which point the defendant requested a race neutral explanation. Given the issues likely to arise in the defendant’s trial, the state expressed concern with B. C.’s “intimate familiarity with crack cocaine,” as well as her representation by the New Haven public defender’s office. In response, the defendant argued that “a white male . . . who used cocaine for two years” previously had been accepted by the state and that B. C.’s previous relationship with the public defender’s office was a “nonissue.” The court disagreed with the defendant, finding “ample reason to excuse” B. C.

Importantly, as the prosecutor noted during his examination of B. C., the issue of crack cocaine was “likely to come up” during trial, and the fact that B. C. had been convicted of possession of crack cocaine with intent to sell differentiated her from other venirepersons, including those who admitted previous drug use. “We decline to ascribe a racial animus to the state’s excusal of a venireperson with an arrest record simply because that venireperson [is] black. We agree with courts in other jurisdictions that this concern constitutes a neutral ground for the state’s exercise of a peremptory challenge to excuse a black venireperson.” State v. Smith, 222 Conn. 1, 14, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).

We also note that at the time the Batson challenge was raised as to B. C., eight jurors had been selected, two of whom were black. “As we previously have noted, the trial court, in assessing the validity of the state’s proffered reasons, is entitled to take into account the extent to which the state has accepted minority venirepersons. . . . The waiving of a challenge when minority venirepersons were available for challenge, though it provides no insulation from judicial scrutiny, is a factor that can lend some support to a finding of race neutral challenges.” (Citation omitted; internal quotation marks omitted.) State v. Hodge, supra, 248 Conn. 260.

As with D. V., the defendant failed to demonstrate adequately to the court that the state’s proffered reasons for excusing B. C. were pretextual. Accordingly, we conclude that the court’s denial of the defendant’s Batson challenge as to D. V. was not clearly erroneous.

II

ADMISSIBILITY OF THE STATE’S DNA EVIDENCE

The defendant next claims that the court improperly denied his motion in limine to preclude expert scientific testimony and DNA test results linking him to physical evidence found at the crime scene. Again, we disagree with the defendant.

The following additional facts and procedural history are relevant to the resolution of the defendant’s second claim on appeal. Prior to trial, the defendant filed a motion in limine seeking to preclude, inter alia, expert scientific testimony and DNA test results regarding the presence of his DNA on the dumbbell and purse found next to Tomasi’s lifeless body. Specifically, the defendant argued that the proffered scientific evidence was inadmissible under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), because the DNA testing procedure utilized to find that he “[could not] be eliminated” as a contributor to the “mixed” DNA samples tested was invalid and irrelevant, or, alternatively, more prejudicial than probative.

The court thereafter held an extensive Porter hearing, in which it heard expert testimony from both the state and the defense as to the precise methodology employed by the state’s forensic science laboratory to test the DNA samples recovered, a methodology known as the “combined probability of inclusion” (CPI method). Although the defendant acknowledged the general validity and acceptance of the CPI method, he disagreed with its application to his case, given the limited nature of the DNA samples available, as further supported by a claimed dispute to this effect within the “forensic DNA community.” After finding the parties’ experts credible, the court denied the defendant’s motion in limine, and, subsequently, the state’s expert, Michael T. Bourke, a geneticist, was permitted to testify as to the scientific evidence at trial.

Before addressing the merits of the defendant’s argument, we begin with the applicable legal principles and standard of review governing our analysis. In State v. Porter, supra, 241 Conn. 57, our Supreme Court adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In so doing, our Supreme Court noted two threshold requirements to the admissibility of scientific evidence. First, “that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation. . . . This requirement establishes a standard of evidentiary reliability . . . as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Porter, supra, 64. Second, the scientific evidence “must ‘fit’ the case in which it is presented. ... In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract.” Id., 65.

However, “even if a scientific theory or technique satisfied] both of the previous criteria and thus would be [initially] admissible under [Porter], it can still be excluded ... if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” (Citation omitted; internal quotation marks omitted.) Id. Nonetheless, “questions about the methodological validity of proffered scientific testimony will generally go to the weight of such evidence, not to its admissibility.” (Emphasis in original.) Id., 88. Similarly, “[o]nce the validity of a scientific principle has been satisfactorily established, any remaining questions regarding the manner in which that technique was applied in a particular case is generally an issue of fact that goes to weight, and not admissibility.” (Emphasis in original.) Id., 88 n.31.

Finally, it is well established that “[t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . [Accordingly] [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . [Consistent [therewith] ... a trial court’s ruling on a Porter issue is subject to an abuse of discretion standard on appeal”; (citations omitted; internal quotation marks omitted) State v. Kirsch, 263 Conn. 390, 399, 820 A.2d 236 (2003); as is the court’s determination that the probative value of evidence is or is not substantially outweighed by undue prejudice. See State v. Raynor, 84 Conn. App. 749, 761, 854 A.2d 1133, cert. denied, 271 Conn. 935, 861 A.2d 511 (2004).

In the present case, the crux of the defendant’s argument is that the court wrongly concluded under Porter that use of the CPI method of reporting the result had gained general acceptance among laboratory practitioners in situations involving low quantity, mixed DNA samples. Indeed, much of the defendant’s argument in this regard is devoted to explaining the complex scientific shortcomings associated with use of the CPI method in such situations, as emphasized by conflicting rhetoric and debate within the “forensic DNA community.” As the defendant argues, the existence of this “significant [dispute]” deprives the CPI method of “scientific acceptance and reliability” under Porter in this case, which is compounded by the intrinsic difficulties of explaining the inadequacies to the jury.

Contrary to the defendant’s arguments, the record is devoid of any evidence demonstrating that the court definitively identified the “relevant scientific community” as the laboratory practitioners who actually used the CPI method. Rather, the court properly evaluated, over the course of five days, the expert testimony from five witnesses regarding the strengths and weaknesses of the CPI method in cases similar to that of the defendant. Each of these witnesses had significant training and experience not just within the laboratory setting but also as geneticists and forensic scientists. At the conclusion of the Porter hearing, the court determined that “the [CPI methodology was] generally accepted as of the present time in the relevant scientific community based upon [all of] the evidence” presented—namely, the testimony of the experts. Although the court did not expressly articulate what scientific community was being identified, the defendant has not demonstrated that the court’s application of the Porter analysis was faulty, especially given the backgrounds of the experts and the nature of their testimony.

Moreover, the court’s evaluation of the validity of the scientific evidence was not limited to the specific CPI testing in this case, but also necessarily included considerations of the general benefits and limitations of the procedure when low quantity, mixed DNA samples are involved. Under Porter, once the “trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible.” State v. Porter, supra, 241 Conn. 85. Similarly, Daubert teaches that “trial judges are not required to make a determination of the ultimate scientific validity of any scientific propositions. Instead, they need only make a much more limited inquiry: whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the [scientific] principle may be profitably considered by a fact finder at trial.” Id., 91. Thus, “[a] judge frequently should find an expert’s methodology helpful [and thus admissible] even when the judge thinks that the expert’s technique has flaws” in a particular case. (Internal quotation marks omitted.) Id., 89. This is because “the focus of a validity assessment must be solely on principles and methodology, not on the conclusions that they generate.” (Internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 877, 776 A.2d 1091 (2001).

Accordingly, we cannot say that the court had “[in]sufficient indicia of legitimacy” on which to conclude that the CPI test as applied to the defendant’s case lacked the requisite validity under the first prong of Porter. State v. Porter, supra, 241 Conn. 91. Additionally, the court properly could have determined that the jury would appropriately consider the benefits and weaknesses of the CPI method, as such an understanding does not necessarily depend on a scientific appreciation of the evidence but only on a comprehension of its limits when low quantity, mixed DNA samples are tested. See id., 89 (“[in admitting scientific evidence, the court] will often . . . believe that hearing the expert’s testimony and assessing its flaws was an important part of assessing what conclusion was correct and may certainly still believe that a jury attempting to reach an accurate result should consider the evidence” [internal quotation marks omitted]). The inconclusive characteristics of the CPI method’s results were the proper subject for cross-examination, and were not to be considered in isolation but in conjunction with the various other forms of scientific evidence presented by the state at trial. See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 596 (“[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence”).

We conclude that the court did not abuse its discretion in admitting the state’s scientific evidence under Porter. The court therefore properly denied the defendant’s motion in limine.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant originally appealed to the Supreme Court pursuant to General Statutes § 51-199 (b) (3). Thereafter, the Supreme Court transferred the appeal to this court pursuant to § 51-199 (c) and Practice Book § 65-1.

       See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       Although the defendant presents numerous disparate treatment theories with respect to these challenges on appeal, the record reveals that these claims were not properly preserved at trial, as defense counsel failed to identify adequately the alleged venire-comparators during or after voir dire, and, despite the defendant’s argument to the contrary, we will not consider these theories in the first instance on the basis of review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Hodge, 248 Conn. 207, 227, 726 A.2d 531 (noting that, irrespective of Golding, when “the defendant [fails] to raise a disparate treatment claim with respect to [specific] venirepersons, the record is inadequate for appellate review of his claim with respect to those venirepersons”), cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). Moreover, contrary to the defendant’s assertion during oral argument before this court, the record does not contain jury questionnaire forms indicative of the racial makeup of any of the venirepersons. Finally, it is noteworthy that a total of four Batson challenges were raised by defense counsel during voir dire, while the defendant, on appeal, has limited his argument to just three of those four challenges.

       We use the initials of each venireperson in order to protect that venireperson’s legitimate privacy interests. See State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).

       Although the court itself made a cursory statement several weeks after C. S. initially testified, regarding a “young Hispanic girl,” whom the defendant would argue was C. S., the record is inadequate to accept this presumption. Also, the fact that the defendant’s motion for a new trial identifies C. S. as a “[Hjispanic female” is of no consequence because it represents argument, not evidence.

       The defendant did not specifically identify T. F. as the comparator to D. V. for purposes of familiarity with the Brookside apartments at the time of the Batson challenge, nor did he identify the racial makeup of T. F., which is unconfirmed by our review of the record.

       Again, the defendant did not identify this “white male” at the time of the Batson challenge to B. C., and even if we were to accept the defendant’s argument that another juror, F. D., was the “white male” being referred to, the record is silent as to the definitive racial makeup of F. D., aside from colloquial remarks between the parties and the court during various stages of the voir dire process. Moreover, even accepting the defendant’s argument that F. D. was the Caucasian comparator for purposes of this appeal, the record reveals substantial differences between F. D. and B. C., thereby justifying the state’s peremptory challenge, including the fact that B. C., unlike F. D., had been convicted of possession of crack cocaine with intent to sell.

       The state called Carll Ladd, Frederick Bieber and Michael T. Bourke during the Porter hearing, each of whom had extensive training and educational backgrounds in population genetics, though only Bourke actually testified at trial. The defense called Keith Inman, who had extensive training in various aspects of criminal forensics, and Kenneth Kidd, a population geneticist.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VERONICA L. MARQUAND v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
    (AC 31347)
    DiPentima, C. J., and Bear and Schaller, Js.

      Argued June 1
    officially released September 21, 2010

      Veronica Marquand, pro se, the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Veronica L. Marquand, appeals from the judgment of the trial court denying her appeal from the decision of the employment security board of review (board), which had denied her motion to open for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The record reveals the following facts. By way of a letter dated January 25, 2001, the defendant, the administrator of the Unemployment Compensation Act, informed the plaintiff that a preliminary determination had been made that she had been overpaid unemployment benefits due to her failure to report properly certain earnings. The administrator subsequently sent a letter dated March 27, 2001, to the plaintiff, informing her of the determination that she was, in fact, overpaid unemployment benefits and that the overpayment would be assessed to her account. The letter also informed the plaintiff that, as an administrative penalty, she would have to forfeit twelve weeks of unemployment benefits, to which she would otherwise have been entitled. The letter specifically stated that the determination was based on a review of the plaintiffs case file, as well as her “failure to request or attend a hearing.” The plaintiff replied by letter, dated April 14, 2001, stating that she had sought a hearing on the matter and that she wanted to appeal the administrator’s March 27, 2001 decision. The plaintiffs April 14, 2001 letter was postmarked April 19, 2001, which was two days after the time limit for filing an appeal. On May 18, 2001, the appeals referee mailed her decision in which she found that the plaintiff failed to show good cause for the late filing of her appeal from the administrator’s March 27, 2001 decision and, therefore, dismissed the appeal for lack of jurisdiction. On June 11, 2001, the plaintiff appealed from the referee’s decision to the board, and on June 26, 2001, the board dismissed the plaintiffs appeal, finding that, pursuant to General Statutes § 31-248, the plaintiffs appeal from the referee’s decision should have been filed within twenty-one days after the referee’s decision was mailed. The plaintiff did not pursue the matter any further.

Several years later, in May, 2008, the plaintiff again applied for unemployment benefits. The department of labor informed her that, although she had been awarded unemployment benefits, the funds were being held as a result of the administrative penalty that had been assessed to her account in 2001. On May 31, 2008, the plaintiff sent a letter to the board regarding the matter, claiming that she had repaid the amount overpaid to her as determined by the administrator and that, because her overpayment was “[n]on-fraudulent,” she should not have incurred the penalty assessed to her account. The plaintiff also maintained that she had new evidence to show that she had made a timely request in 2001 for a hearing concerning the administrator’s preliminary determination regarding the overpayment of benefits to her. The board treated the plaintiffs May 31, 2008 letter as a late motion to open the board’s June 26, 2001 decision, and on July 18, 2008, it denied the motion for lack of jurisdiction, finding that there was no good cause for the late filing.

The plaintiff then appealed to the Superior Court on September 8, 2008. On April 20, 2009, the court filed a memorandum of decision in which it found that the plaintiff never had the opportunity to show that the overpayment was not fraudulent. On May 7, 2009, the defendant filed a motion to reargue, claiming that the plaintiffs lack of diligence in pursuing her appeals in this matter had deprived the board of jurisdiction to hear her claims. The motion to reargue was granted on May 20, 2009. Thereafter, on June 25, 2009, the court filed a memorandum of decision in which it denied the plaintiffs appeal. This appeal followed.

“As a preliminary matter, we note the unique place this type of appeal holds in our appellate jurisprudence. [A]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by [General Statutes] § 31-249b. . . . We also are mindful of the remedial nature of our state’s statutory scheme of unemployment compensation. . . . This remedial purpose, however, does not support the granting of benefits to an employee guilty of wilful misconduct. . . .

“We now set forth our standard of review. In appeals under ... § 31-249b, the Superior Court does not retry the facts or hear evidence but rather sits as an appellate court to review only the record certified and filed by the board of review. Practice Book § 519 [now § 22-9]. The court is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where . . . the board of review adopted the findings and affirmed the decision of the referee. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the board . . . has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Nonetheless, issues of law afford a reviewing court a broader standard of review when compared to a challenge to the factual findings of the referee.” (Citations omitted; internal quotation marks omitted.) Addona v. Administrator, Unemployment Compensation Act, 121 Conn. App. 355, 360-61, 996 A.2d 280 (2010).

The plaintiff first claims that the court improperly granted the defendant’s motion to reargue. “[I]n reviewing a court’s ruling on a motion to open, reargue, vacate or reconsider, we ask only whether the court acted unreasonably or in clear abuse of its discretion. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did. . . . [T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Citations omitted; internal quotation marks omitted.) Gianetti v. Gianetti, 122 Conn. App. 126, 129, 998 A.2d 807 (2010). In the motion to reargue, the defendant “argued that the court’s prior ruling failed to give the appropriate weight to the strict statutory standards for appeals, and the long line of case law in support of that view.” Because this is a proper basis for a motion to reargue, the court did not abuse its discretion in granting the defendant’s motion to reargue.

The plaintiff also makes numerous other claims concerning error in the court’s judgment. Essentially, the only issue for the court to determine was whether the board acted unreasonably, arbitrarily, illegally or in abuse of its discretion when it denied the plaintiffs motion to open for lack of jurisdiction and found that there was no good cause for the late filing. General Statutes § 31-249a provides in relevant part: “(a) Any decision of the board, in the absence of a timely filed appeal from a party aggrieved thereby or a timely filed motion to reopen, vacate, set aside or modify such decision from a party aggrieved thereby, shall become final on the thirty-first calendar day after the date on which a copy of the decision is mailed to the party, provided . . . any such appeal or motion which is filed after such thirty-day period may be considered to be timely filed if the filing party shows good cause, as defined in regulations adopted pursuant to section 31-249h, for the late filing . . . . (b) Any decision of the board may be reopened, vacated, set aside, or modified on the timely filed motion of a party aggrieved by such decision, or on the board’s own timely filed motion, on grounds of new evidence or if the ends of justice so require upon good cause shown. . . .” On the basis of the record, we conclude that there was ample evidence to support the board’s decision that the plaintiff failed to file a timely appeal both with the referee and with the board and that no good cause exists for the late filing of the motion to open. Accordingly, the court properly denied the plaintiffs appeal.

The judgment is affirmed.

       Specifically, in the plaintiffs statement of issues in her brief, she claims that the trial court (1) “erred stating that under General Statutes § 31-273, there is no good cause waiver for a late appeal,” (2) “did not reasonably weigh the evidence in accordance with the established [bjoard precedent,” (3) “failed to consider critical evidence or assigned evidence inappropriate weight,” and (4) “failed to protect the [plaintiffs constitutional right to due process, and failed to give latitude to the [p]laintiff as a pro se party.” (Internal quotation marks omitted.)


author: PETERS, J.

text:
    DISCIPLINARY COUNSEL v. JACEK I. SMIGELSKI
    (AC 31504)
    Bishop, Harper and Peters, Js.

      Argued May 24
    officially released September 28, 2010

      James F. Sullivan, with whom was Jacek I. Smigelski, pro se, for the appellant (defendant).

      Suzanne B. Sutton, assistant chief disciplinary counsel, for the appellee (plaintiff).
   Opinion

PETERS, J.

The principal issue in this appeal from the imposition of disciplinary sanctions on an attorney is whether, having found initially that a contingent fee agreement was neither unlawful nor unethical, the trial court nonetheless properly sanctioned the attorney for having charged an unreasonable fee and for having disbursed the fee to himself in an unreasonable manner. Under the circumstances of this case, in which the attorney improperly calculated the amount that the contingency fee agreement entitled him to collect and improperly collected his fee from assets entrusted to him as a fiduciary, we affirm the judgment of the trial court imposing sanctions on the attorney.

On January 4, 2007, Kazimierz Kosiorek initiated grievance proceedings against the defendant, Jacek I. Smigelski, by filing a complaint with the statewide grievance committee that charged the defendant with having violated the Rules of Professional Conduct by withholding settlement proceeds from a sale of real property by the estate of Stanislaw Kosiorek. After a finding of probable cause by a local grievance panel, the reviewing committee of the statewide grievance committee held an evidentiary hearing and thereafter directed disciplinary counsel to file a presentment against the defendant in the Superior Court.

The presentment filed by disciplinary counsel charged the defendant with having violated rule 1.5 (a) of the Rules of Professional Conduct (2006) by charging a fee that was unreasonable in light of all the relevant circumstances and with having violated rule 1.15 (b) of the Rules of Professional Conduct (2006) by distributing funds to himself, as his fee, out of the proceeds of the sale of the Kosiorek home rather than seeking payment from the executor and for refusing to refund these sums upon demand from the lawful agents of the estate. Conducting a de novo review of the complaint; Statewide Grievance Committee v. Johnson, 108 Conn. App. 74, 79, 946 A.2d 1256, cert. denied, 288 Conn. 915, 954 A.2d 187 (2008); the trial court held that disciplinary counsel had proved both charges by clear and convincing evidence and imposed sanctions on the defendant. The defendant has appealed.

The record establishes that the defendant performed two related but separate professional services for the estate of Stanislaw Kosiorek. First, in the Superior Court, he represented the executor of the estate in clearing the estate’s title to its only asset, a house at 28 Terra Road, Plainville. Second, in the Probate Court, he represented the executor in the probate administration of the estate. The dispute between the parties arises in significant part out of the defendant’s improper intermingling of these two professional roles.

The trial court’s undisputed findings of fact establish that, on June 15, 2006, Stanley Kosiorek, the executor of Stanislaw Kosiorek’s estate, hired the defendant to represent the Kosiorek family in an action that they had brought against Bronislawa Kosiorek. After Stanislaw Kosiorek’s death at the age of eighty-three, his heirs had discovered that, less than one year earlier, he had married Bronislawa Kosiorek and had transferred to her a survivorship interest in his Terra Road property. The heirs had brought a civil action to have the transfer set aside, but settlement negotiations in the Superior Court had foundered when the widow declined to accept a payment of less than $45,000 to execute a quitclaim of the property back to the estate. The heirs sought the defendant’s assistance in resolving this impasse.

Paying the defendant a retainer of $5000, Stanley Kosiorek executed a written fee agreement, both in his own name and as “the Executor [of] the Estate of [Stanislaw] Kosiorek.” The agreement was a hybrid, stating that “the fee for legal services rendered by [the defendant], will be based on an hourly charge of $225.00 per hour or it will be contingent upon recovery of benefits and shall be ONE-THIRD of the gross judgment or settlement, which ever amount is greater.”

The court observed that, if there was a high value recovery to the estate, this fee agreement allowed the defendant to charge a fee higher than would have been earned at his normal hourly rate. Nonetheless, it held that, on its face, the agreement was not invalid.

In August, 2006, without keeping time records, the defendant negotiated a favorable settlement in the estate’s litigation with Stanislaw Kosiorek’s widow. In return for a payment of $35,000, instead of the $45,000 that she had earlier demanded, she executed a quitclaim deed of the property back to the estate.

Thereafter, with the approval of the Plainville Probate Court, the heirs to the Kosiorek estate agreed to sell the property to a member of the family and his wife for $212,500. They also agreed that they would contribute $42,500 from the estate to the buyers as a down payment for their mortgage.

The defendant represented the estate at the December 21, 2006 closing for the sale of the property. According to the United States Department of Housing and Urban Development Statement, Form HUD-1 (HUD-1), the net proceeds from the sale to the estate were $155,300.82. Stanley Kosiorek signed the paperwork and authorized a check in this amount to be made out to “Jacek Smigelski, Trustee.”

On December 26, 2006, when Stanley Kosiorek came to the defendant’s office to pick up the check for the funds payable to the estate as a result of the closing, the amount of the check that he received from the defendant was only $88,462.50. The defendant explained that he had paid $1004.99 to the Plainville Probate Court for miscellaneous Probate Court fees and had paid himself two checks totaling $65,833.33 as the one third contingency fee contemplated by their fee agreement. In a summary statement purporting to explain his calculation of this fee, the defendant asserted that, with certain adjustments, he was entitled to $65,833.33 as his one third contingency fee based on $257,000 as the value of the estate’s property. The defendant’s explanation left Stanley Kosiorek speechless.

Initially, the defendant deposited the two checks in his personal savings account. On December 28, 2006, however, he “wired out” the amount of these checks to an unidentified account at an undisclosed location.

Upon learning of the defendant’s disbursements, Kazimierz Kosiorek, Stanley Kosiorek’s brother, retained counsel to initiate the present grievance proceedings against the defendant. On January 4, 2007, that counsel notified the defendant that the estate considered his fee unreasonable and demanded that the funds “be placed in escrow until this matter is finally resolved in the Plainville Probate Court.” Replying that the funds were “gone,” the defendant did not comply with this demand.

On January 23, 2007, the Plainville Probate Court conducted a hearing on the final accounting for the estate, which the defendant attended. The court disapproved the defendant’s claimed right to a $65,833.33 fee as unreasonable and allowed him a fee of $15,000 for preparations for the sale of the property, plus $1000 for reimbursement of costs. Accordingly, the Probate Court ordered the defendant to return the remaining $54,833.33 of his fee to the estate. The defendant has neither complied with this order nor initiated legal proceedings to challenge its validity. See General Statutes § 52-570a.

I

VIOLATION OF RULE 1.5 (a)

The defendant challenges the sufficiency of the evidence to support the court’s finding that he violated rule 1.5 (a) “by charging a fee that was unreasonable in light of all the relevant circumstances . . . .” He maintains that (1) having found that the fee agreement between the defendant and Stanley Kosiorek was “neither unlawful nor unethical,” the court had no legal basis for concluding that the fee that the defendant charged the Kosiorek estate was unreasonable, (2) the court improperly found a violation of rule 1.5 without considering the factors enumerated in the subdivisions of rule 1.5 (a) and by considering evidence not specified in those subdivisions, and (3) the court’s adverse findings were based solely on its disbelief of the defendant’s testimony because the facts of record on which the court relied did not establish a violation of the rule by clear and convincing evidence. We are not persuaded.

A

The defendant based his claim to recover a fee of $65,833.33, in addition to his initial retainer of $5000, on the provision in his fee agreement entitling him to recover “one-third of the gross judgment or settlement” received by the estate. On appeal, he emphasizes the court’s initial holding that this retainer was valid. Citing case law upholding the validity of contingency fee agreements; see, e.g., Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 270, 828 A.2d 64 (2003); the defendant, in effect, contends that this finding of initial validity ends the matter. We do not agree.

A fee agreement is not self-executing. It does not and cannot authorize an attorney to violate his fiduciary obligation to his client. See Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 651-52, 850 A.2d 145 (2004); Marcus v. DuPerry, 25 Conn. App. 293, 297, 593 A.2d 163 (1991), rev’d in part on other grounds, 223 Conn. 484, 611 A.2d 859 (1992). We agree with courts in other jurisdictions that have held that the fiduciary relationship between an attorney and a client requires “absolute perfect candor, openness and honesty, and the absence of any concealment or deception.” Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App. 2001); Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 529, 426 A.2d 1138 (1981). The court therefore properly held the defendant responsible for providing the Kosioreks an understandable explanation of the method by which he calculated his claimed right to a fee of $65,833.33.

The court reasonably found serious flaws in the defendant’s calculations of this fee. In his first calculation, immediately after the closing, he relied on an estimated market price of $257,000 that bore no relationship to the sale price that the estate actually received for the property. In both calculations, he ignored the $35,000 that the estate had paid to Kosiorek’s widow to enable the estate to sell the property. Furthermore, in both calculations, he included an undefined “ ‘courtesy’ discount” that, the trial court found, may well have been intended to dissuade his client from disputing the amount of the fee.

Both calculations had a more fundamental flaw as well. It is axiomatic that, to collect a contingent fee for services rendered, an attorney must establish a nexus between fee and service. In this case, there is no such nexus between the defendant’s services and the market value, however calculated, of the Kosiorek estate. At oral argument in this court, the defendant acknowledged that, as a result of the services he performed pursuant to his contingency fee agreement, the Kosiorek estate had been enriched in only one respect: it was able to obtain clear title to its Terra Road property by paying Stanislaw Kosiorek’s widow $35,000 rather than the $45,000 offered by Bronislawa Kosiorek in a pretrial mediation. Furthermore, the defendant conceded that the legal services to which his fee agreement pertained did not include negotiation of the sales price of the Kosiorek estate’s property.

Accordingly, we hold that the court properly found that the defendant violated his fiduciary duty to his client by charging a fee that was unreasonable. We agree with the court that the defendant’s failure to provide a coherent explanation of his calculation of his contingency fee supports the inference that he was fully aware of its impropriety. The record thus supports the court’s conclusion that the defendant violated rule 1.5.

B

The defendant’s second challenge to the finding that he violated rule 1.5 is that the trial court improperly found that he had violated this rule without expressly considering the eight factors listed in rule 1.5 (a) and by relying on evidence unrelated to those eight factors. We are not persuaded.

The defendant relies on a number of trial court opinions that have engaged in a detailed analysis of all of the factors listed under rule 1.5 (a). The plaintiff notes, however, that other courts have used a broader analysis to affirm fee awards.

We need not resolve this judicial disagreement because a subsequent amendment of the commentary accompanying rule 1.5 now expressly states that “[t]he factors specified in (1) through (8) are not exclusive” and that all of them will not necessarily “be relevant in each instance.” It seems to us reasonable to read this amendment to the rule as a clarification of the text of the original section. It therefore falls within the principle established by our Supreme Court that “[w]here an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect.” State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). Accordingly, we conclude that the trial court properly construed and applied rule 1.5.

C

The defendant’s third claim is that the court improperly based its finding solely on its disbelief of the defendant’s testimony and, correlatively, that the facts of record do not support the court’s determination about the impropriety of his fee. Our recitation of the court’s detailed finding of facts adequately rebuts the validity of this claim.

n

VIOLATION OF RULE 1.15 (b)

The defendant also challenges the court’s finding that the evidence at trial established that he violated rule 1.15 (b) by failing promptly to “deliver to [his] client . . . funds . . . that the client ... is entitled to receive . . . .” The presentment charged the defendant with having violated this rule by “distributing [his] fee to himself from the proceeds of the sale of the Kosiorek home rather than seeking payment from the executor and [by] refusing to refund the sums when demanded to do so by the lawful agents of the estate.”

The court made the following findings of fact in support of its conclusion that the defendant had violated rule 1.15 (b). It found incredible the defendant’s testimony that (1) he had no reason to be aware of an impending dispute over the fee calculation and (2) he had disposed of the funds in such a way that he could not place the disputed sums in escrow. It relied instead on circumstantial evidence that the defendant intentionally had misused trust funds and deliberately had made it difficult for his client to challenge the defendant’s conduct.

The court held that, as an attorney retained by the executor of an estate to perform services for the estate, the defendant was not privileged to act in denigration of the jurisdiction of the Probate Court. The court found that the return of the Terra Road property to the estate and the sale of the recovered estate asset were both actions that had been taken by the executor under the supervision of the Probate Court. Accordingly, the Probate Court was the forum in which the executor would have had to seek approval for his attorney’s actions and for the payment of his fees.

Furthermore, the court held that the defendant improperly had paid himself out of funds that belonged to the estate. Having received the funds as trustee, the defendant was obligated to make a proper accounting to the estate. Even though such an accounting would have included his claim for an attorney’s fee, that fact would not have authorized his disbursal of estate funds without the approval of the Probate Court. The defendant’s unauthorized unilateral disbursement of the funds to himself violated not only his duty to the estate but also his duty to his client, whom he placed at risk of personal liability for improper diversion of estate assets.

Accordingly, the court inferred that the defendant “had determined that the most effective way to keep the money as his own was to place it beyond the jurisdiction of the client, the Probate Court and the Superior Court, and to avoid participating, if at all possible, in an orderly process to resolve the fee dispute.” Further, the court inferred from the confusing fee calculation that the defendant provided to his client that the defendant intentionally had made it difficult for his client to appreciate that the defendant had taken money to which the defendant was not clearly entitled. Finally, the court found that the defendant deliberately had negotiated his own checks to a destination that made these funds irretrievable by the time his client realized what had happened.

The defendant takes issue with the court’s finding on multiple grounds that can be grouped under three headings. His main points on appeal are that (1) both his fee agreement with Stanley Kosiorek and the charging lien to which he was entitled because of his services in settling the Kosiorek estate’s litigation with Bronislawa Kosiorek entitled him to collect his fee from the proceeds of the sale of the Kosiorek estate; (2) the court improperly attached significance to the proceedings held in the Plainville Probate Court; and (3) the court improperly relied on facts elicited in a separate action between Stanley Kosiorek and the defendant. In addition, he again argues that the court based its judgment on its disbelief of his testimony rather than on evidence of his misconduct. We are not persuaded of the validity of any of these claims of error.

A

In several related claims of error, the defendant claims that the court’s criticism of the manner in which he collected his fee was improper as a matter of law. He emphasizes the court’s unchallenged finding that his hybrid fee agreement with Stanley Kosiorek was valid. He claims, as well, that the settlement that he negotiated on behalf of the Kosiorek estate with Bronislawa Kosiorek gave him a charging hen on estate assets to collect his fee. See McNamara & Goodman v. Pink, 44 Conn. Sup. 592, 601-602, 696 A.2d 1328 (1997). On both grounds, he maintains that the trial court improperly censured him for availing himself of the opportunity to cohect the fee that he had earned from the estate assets that had been entrusted to him.

The difficulty with these claims is that they assume an equivalence between the existence of a valid unliquidated claim and the propriety of the manner in which the alleged claim has been enforced. Put differently, the defendant has cited no authority for the proposition that, as a matter of law, either his retainer agreement or his judgment hen authorized him to engage in self help that foreclosed the opportunity for an orderly judicial determination of the proper calculation of his fee. That this calculation was not self-evident is demonstrated by the significantly disparate calculations of the fee that the defendant himself tendered at different times.

We similarly are not persuaded by the defendant’s claim that, as a matter of fact, at the time when he disposed of the Kosiorek estate’s funds in his trust account, he had no reason to anticipate a fee dispute. We disagree with his assertion that Stanley Kosiorek acquiesced in the defendant’s calculation of the fee. The defendant has not challenged the validity of the court’s finding that, on December 26,2006, Stanley Kosiorek was too stunned by the small amount of the check that the defendant gave to him to contest the manner in which the defendant had calculated his fee. He similarly has not challenged the court’s finding that, the very next day, Kazimierz Kosiorek called him for an explanation. On this record, it is disingenuous for the defendant to maintain that he innocently disposed of the disputed funds.

Finally, we disagree with the defendant’s claim that the court improperly faulted the manner in which he calculated and collected the contingency fee to which he claims to have been entitled by the terms of his fee agreement. Although, in form, the defendant arguably complied with his obligation promptly to render a full accounting to his client, we agree with the court that, in substance, he failed to comply with his ethical obligations. Furthermore, even a more adequate disclosure of the manner in which he had calculated his fee would not have justified his unauthorized removal of funds to escape the jurisdiction of the Connecticut court system.

B

The defendant maintains that the trial court improperly linked his claim to enforce his fee agreement with Stanley Kosiorek with the Kosiorek estate proceedings conducted by the Plainville Probate Court. He criticizes the court’s rulings that (1) rule 1.15 (b) required him to obtain the approval of the Probate Court before a final disbursement of the funds entrusted to him by Stanley Kosiorek and (2) the decision of the Probate Court was admissible into evidence in this case. We disagree with both claims.

According to the defendant, the Plainville Probate Court had the authority to distribute only the $88,462.50 that remained as estate assets after he had collected his fee. In support of this argument, the defendant relies on Constas v. Tucci, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-01-0182864 (January 23, 2007), in which an attorney successfully brought an action pursuant to § 52-570a to collect a fee from an executor in the executor’s individual capacity. We are not persuaded. Although that case might have supported a § 52-570a action in the Superior Court against Stanley Kosiorek individually, it does not address or constrain the authority of the Probate Court to adjudicate claims to all of the assets that belonged to the estate. We agree with disciplinary counsel that, in this case, except for the administrative costs associated with its sale, those assets included the proceeds of the sale of the Kosiorek property in their entirety.

Alternatively, the defendant disputes the validity of the court’s reliance in this case on any evidence arising out of the proceedings in the Plainville Probate Court. Relying on case law holding that probate courts have no common-law jurisdiction; In re Joshua S., 260 Conn. 182, 214, 796 A.2d 1141 (2002); and that appeals from probate are trials de novo; Statewide Grievance Committee v. Johnson, supra, 108 Conn. App. 79; the defendant maintains that the Probate Court had no authority to adjudicate the reasonableness of a fee for the litigation services of an executor. We disagree with this claim as well.

The defendant is mistaken in his contention that the trial court’s reliance on the decision of the Probate Court was improper because such decisions are inadmissible as hearsay. To the contrary, in Gaynor v. Payne, 261 Conn. 585, 598, 804 A.2d 170 (2002), our Supreme Court held that courts of general jurisdiction must give preclusive effect to Probate Court decrees adjudicating the validity of an executor’s accounting for his performance of his duties to the estate. Accordingly, in this case, the court was required to take into account the Plainville Probate Court’s adjudication of the fee to which the defendant was entitled for his services for Stanley Kosiorek as executor of the Kosiorek estate.

c

In addition to these specific claims of trial court error, and again in his reply brief, the defendant maintains that, without affirmative evidence of misconduct on his part, the court improperly ruled against him because of its disbelief in his explanation for his dealings with the Kosiorek estate. We are persuaded to the contrary by the evidence of record about the manner in which the defendant collected his fee and the speed with which he removed the funds that he claimed as his fee from the jurisdiction of the Probate Court and the Superior Court.

Ill

The defendant’s third claim on appeal is that the court violated canon 3 of the Code of Judicial Conduct by relying, in this case, on facts of record that the court heard in presiding over hearings held pursuant to a civil case brought by the executor against the defendant. For two reasons, we decline to address the merits of this claim. First, the defendant has failed to satisfy his burden of establishing, as a matter of record, the facts on which the court allegedly improperly relied. See State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987). Second, claims of judicial impropriety are waived unless asserted at trial. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967).

In sum, we agree with the trial court that, as charged in the presentment, the defendant violated rules 1.5 and 1.15 (b) of the Rules of Professional Conduct. The contingency fee agreement between the defendant and Stanley Kosiorek as executor of the Kosiorek estate did not authorize the defendant to appropriate to himself as his fee a sum that bore no relationship to the services he had rendered. That agreement, furthermore, did not authorize him to sidestep a proper accounting by immediately removing the funds that he had appropriated from his local bank account.

The judgment is affirmed.

In this opinion the other judges concurred.

       All references hereinafter to the Rules of Professional Conduct are to the 2006 revision unless otherwise indicated.

         The defendant’s appeal challenges only the validity of the trial court’s findings of misconduct. The defendant has raised no issue with respect to the sanctions imposed by the court.

       The court noted that this retainer agreement was not governed by General Statutes § 52-251c, which governs only contingency fee agreements for legal services in civil actions for personal injury, wrongful death or property damage.

       In its opinion, the court expressly found that “[although [the defendant] understood that he was to be representing Stanley Kosiorek in Stanley Kosiorek’s capacity as executor of the estate of Stanislaw Kosiorek, [the defendant] drafted the retainer agreement to read ‘Client: Stanley Kosiorek and Stanley Kosiorek as the Executor of the Estate of Stanislaw Kosiorek.’ ” In the absence of a cross appeal, we have no occasion to consider the validity of the trial court’s ruling that the fee agreement was valid both with respect to Stanley Kosiorek individually and with respect to Stanley Kosiorek as executor. Therefore, our silence on the troubling but unpresented question of the fee agreement’s validity should not be taken as our tacit approval of it.

       The HUD-1 settlement statement also documented a payment of $550 to the defendant for his services in connection with the closing.

       The explanatory memorandum that the defendant gave to Stanley Kosiorek on December 26, 2006, stated:
      “Gross amount of settlement, (value of real estate $257,000.00)
      Sale Price: 28 Terra Road, Plainville, CT; $212,500
      Attorney’s fees according to agreement 1/3 of the gross amount of settlement that is (33.33% of $257,000 or $85,665.81)
      less courtesy of $14,832.49; less $5,000 retainer or $65,833.33.”
      On May 7, 2007, during Probate Court proceedings on the executor’s final account, the defendant amended the calculation of his fee as follows: “Gross amount of settlement, Sale Price, 28 Terra Road, Plainville, CT; $212,500.00
      [Defendant] Attorney’s Fees according to the agreement; 1/3 of the gross amount of settlement that is (33.33% of $212,500 or $70,832.63); less $5,000.00 retainer; plus, $1,000 fee to Mr. Jeffrey Luber, expert fee; less courtesy $999.30; total fee due $65,833.33.”
      Significantly, in a footnote to this second summary, the defendant noted that he had not charged any fees for his probate work.

       There is nothing in the record to clarify whether this fee was intended to compensate the defendant for his services in the Kosiorek estate’s settlement of its litigation with Bronislawa Kosiorek as well as for his services in the probate administration of the Kosiorek estate.

       Rule 1.5 of the Rules of Professional Conduct (2006) provides in relevant part: “(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      “(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      “(2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      “(3) The fee customarily charged in the locality for similar legal services;
      “(4) The amount involved and the results obtained;
      “(5) The time limitations imposed by the client or by the circumstances;
      “(6) The nature and length of the professional relationship with the client;
      “(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
      “(8) Whether the fee is fixed or contingent. . . .
      “(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. . . .”

       The defendant acknowledged that “I was asked just to draft the contract and go to Probate Court [to have the contract approved].” Consistently, the defendant’s revised disbursement statement relating to his contingency fee agreement stated that he had not charged any fees for his probate work.

       See, e.g., Woolf v. Statewide Grievance Committee, Superior Court, judicial district of New Britain, Docket No. CV-98-0492717S (March 23,1999); Dean v. Statewide Grievance Committee, Superior Court, judicial district of Hartford, Docket No. CV-07-4031616S (January 31, 2008) (44 Conn. L. Rptr. 811).

       Although the cases on which disciplinary counsel relies do not concern attorney discipline, they do cite rule 1.5 in reaching the conclusion that a broad analysis is appropriate for a determination of the reasonableness of attorney’s fees. See, e.g., Ernst v. Deere & Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005); see also Krack v. Action Motors Corp., 87 Conn. App. 687, 695, 867 A.2d 86 (listing twelve factors to be considered in determining the reasonableness of attorney’s fees and noting that “[t]hat list of factors is not, however, exclusive” and that “ [t]he court may assess the reasonableness of the fees requested using any number of factors” [internal quotation marks omitted]), cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005).

       Rule 1.15 (b) of the Rules of Professional Conduct (2006) provides: “Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

       The defendant does not contest the validity of the court’s assumption that the Plainville Probate Court already had assumed jurisdiction over the Kosiorek estate at the time of the estate’s litigation with Stanislaw Kosiorek’s widow.

       In his reply brief, the defendant criticizes disciplinary counsel for repeatedly characterizing the defendant’s conduct as having been motivated by greed and for having failed to show remorse for his behavior. We agree with this criticism. Such personal invectives have no place in appellate advocacy.

       See Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV-07-414607 S.