author: STOUGHTON, J.

text:
    LUCIANI REALTY PARTNERS v. NORTH HAVEN ACADEMY, LLC, ET AL.
    (AC 29550)
    Harper, Robinson and Stoughton, Js.

      Argued October 29, 2009
    officially released March 2, 2010

      James S. Brownstein, with whom, on the brief, was Anthony E. Parent, for the appellant (plaintiff).

      Maureen E. Bums, for the appellee (named defendant).

      Julia B. Morris, for the appellee (defendant 97 Washington, LLC).

      Jennifer N. Coppola, for the appellee (defendant town of North Haven et al.).
   Opinion

STOUGHTON, J.

The plaintiff, Luciani Realty Partners, appeals from the summary judgment rendered in favor of two of the defendants in this case, 97 Washington, LLC, and North Haven Academy, LLC, on the first, second, third and eleventh counts of the plaintiffs amended complaint. Specifically, the plaintiff claims that the trial court improperly rendered summary judgment as to the counts of its amended complaint alleging (1) injurious falsehood, (2) slander of title, (3) trespass and (4) unjust enrichment. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff owns the North Haven Shopping Center on Washington Avenue in North Haven. Property abutting the shopping center is owned by 97 Washington, LLC. North Haven Academy, LLC, is a tenant of 97 Washington, LLC. Sunrise 77 Associates was a predecessor in title to 97 Washington, LLC.

In January, 1978, the plaintiff, Sunrise 77 Associates and certain others entered into an easement agreement entitled “Mutual Grant, Cross Parking, Cross Easement and Maintenance Agreement” (mutual grant). The mutual grant was recorded in the North Haven land records. There have been no written or recorded amendments to the mutual grant.

In the mutual grant, the plaintiff, as owner, and The Stop and Shop Companies, Inc., as tenant, granted to Sunrise 77 Associates the right to cross over its easterly and southerly boundaries and the right to park vehicles on that portion of the plaintiffs property shown and designated on a site plan and survey. The rights set forth in the mutual grant were granted to each party, its heirs, successors and assigns forever. In the mutual grant, each party reserved the right to erect any buildings or improvements on its respective property.

In January, 2007, the plaintiff filed an amended complaint, alleging that the defendants obtained a change of use from the town of North Haven zoning authority in order to change their building from an office use to a vocational school use. In order to obtain the change of use, the plaintiff claimed, the defendants falsely represented to the zoning authority that they had an easement agreement entitling them to use 100 of the plaintiffs parking spaces. The plaintiff alleged that the mutual grant was invalid because it violated zoning regulations and because the defendants materially breached the terms of the mutual grant. Therefore, the plaintiff argued that the defendants had abandoned or terminated the mutual grant. Furthermore, the plaintiff claimed that the defendants had directed ninety vehicles to be parked in the plaintiffs parking spaces and that they continued to allow their business and nonbusiness invitees to use the spaces.

In their motions for summary judgment, the defendants asserted the right to park in these spaces by virtue of the recorded mutual grant. The defendants claimed that they had the right to park in the area defined in the mutual grant as “[proposed [p]arking.” The court granted the defendants’ motions for summary judgment, and this appeal followed.

On appeal, the plaintiff claims that the court (1) made an erroneous factual finding causing it to fail to review the issues of abandonment and termination, (2) erroneously determined that 97 Washington, LLC, was a bona fide purchaser, (3) erroneously found that the boundaries of the proposed parking area were adequately defined and (4) failed to apply its own findings to the elements of each count. In essence, as made clear in its reply brief and at oral argument, the plaintiff claims that the rights granted to the defendants under the mutual grant were abandoned, or if not abandoned, that the scope of the defendants’ use exceeded the grant. We disagree with the plaintiffs claims.

Our standard of review on an appeal from a summary judgment is well established. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Viola v. O’Dell, 108 Conn. App. 760, 763-64, 950 A.2d 539 (2008).

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” (Internal quotation marks omitted.) Byrne v. Burke, 112 Conn. App. 262, 267-68, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009). Our review of the trial court’s decision to grant a motion for summary judgment is plenary. Mazurek v. Great American Ins. Co., 284 Conn. 16, 27, 930 A.2d 682 (2007).

The plaintiff first claims that the court erroneously found that an individual named Vincent Longobardi was a former tenant of, instead of a predecessor in title to, 97 Washington, LLC. On the basis of this alleged error, the plaintiff maintains that the court failed to consider the actions of Longobardi in connection with the mutual grant and, therefore, improperly failed to review the issues of abandonment and termination. This claim fails for two reasons.

First, it is clear from the court’s memorandum of decision that it understood that Longobardi was a predecessor in title to 97 Washington, LLC, and did not consider him to be a tenant. The court expressly referred to Longobardi as the “predecessor in title to 97 Washington, LLC,” when discussing him in its decision and made no reference to him in any other capacity.

Moreover, the court adequately reviewed the issues of abandonment and termination and correctly concluded that the plaintiff failed to create any genuine issues of material fact as to the validity of the mutual grant. The plaintiff claims that Longobardi’s erection of a building that cantilevered over the mutual parking area resulted in the termination and abandonment of the agreement. The court, however, concluded that this alleged conduct failed to provide “unequivocal evidence of [an] intent to abandon [the] rights to park on the plaintiffs parcels.” After a thorough review of the record, we agree with the court and conclude that the plaintiffs claim on appeal amounts to rearguments of the case in the trial court and are not sufficient to raise a genuine issue of material fact.

The plaintiff also claims that 97 Washington, LLC, was not a bona fide purchaser of its respective property because 97 Washington, LLC, was on constructive notice that the mutual grant had been abandoned by Longobardi. The plaintiff again focuses on Longobardi’s construction of a building that encroached into the mutual parking area and argues that a proper visual inspection of the property purchased by 97 Washington, LLC, would have revealed that Longobardi was not honoring the mutual grant.

As set forth previously, the parties’ right to erect buildings and improvements on their respective properties was expressly provided for in the mutual grant. Furthermore, the plaintiff has not provided any evidence of 97 Washington, LLC’s alleged constructive notice, other than a conclusory statement contained in an affidavit submitted by its own counsel, Anthony E. Parent, in which he stated: “[A]ny purchaser, using due diligence would have discovered, from a plain viewing of the subject premises and from the map referred to on the North Haven land records, that the grant of land described as ‘cross parking area’ was not being honored at the time the defendant [97 Washington, LLC, bought] the property, and thus was [on] notice [that the] easement agreement . . . was not being honored.” The plaintiff contends that this statement creates a genuine issue of material fact regarding whether 97 Washington, LLC, was a bona fide purchaser. We disagree.

“Although an affidavit by an expert may be considered in opposition to a motion for summary judgment, conclusory affidavits, even from expert witnesses, do not provide a basis on which to deny such motions.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 557, 791 A.2d 489 (2002). Accordingly, the plaintiff cannot avoid summary judgment in favor of the defendants on the basis of the conclusory assertion that any diligent purchaser would have been on notice of the fact that Longobardi had abandoned his interest in the mutual grant.

Finally, the plaintiff claims that the boundaries of the proposed parking area were described inadequately in the mutual grant, and, therefore, the agreement was unenforceable. The mutual grant expressly provided that the scope of the easement granted to Sunrise 77 Associates was limited to the area designated as “proposed parking” on a recorded survey. The court found that this survey referenced 176 parking spaces on the plaintiffs parcel of land and that there was no restriction on the number of vehicles that could be parked there. Furthermore, the court found that the survey demonstrated that at least 100 of these spaces were designated as “ ‘proposed parking.’ ”

The court did not find that the proposed parking area was the entire shopping center parking area, as the plaintiff argues, when it referred to the metes and bounds description of the plaintiffs parcel contained in the mutual grant. Instead, in response to an argument that the location of the easement was not adequately described, the court noted that this argument ignored the metes and bounds description expressed in the agreement as well as the reference to the survey. These two documents together demonstrate that the location of the proposed parking area within the bounds of the plaintiffs property was described adequately. The defendants have satisfied their burden of showing that there are no genuine issues of material fact as to any of the issues raised by the plaintiff. Consequently, the trial court properly granted the defendants’ motions for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The remaining counts were directed against other defendants and are not involved in this appeal. Accordingly, our references to the defendants throughout this opinion are to 97 Washington, LLC, and North Haven Academy, LLC, only.

       After the defendants filed their motions for summary judgment, the plaintiff filed an eleven count second amended complaint in which it reasserted the claims that had been advanced against the defendants in the original complaint. In the second amended complaint, the plaintiffs claims for injurious falsehood, slander of title, trespass and unjust enrichment were set forth in counts one, two, three and eleven, respectively. Accordingly, the court construed the defendants’ motions for summary judgment as being directed at counts one, two, three and eleven of the second amended complaint.

       The abandonment of an easement requires “unequivocal and decisive acts clearly indicating an intent on the part of the owner of the easement to abandon the use of it.” (Internal quotation marks omitted.) Smith v. Muellner, 283 Conn. 510, 527, 932 A.2d 382 (2007).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    BRIAN MOORE v. COMMISSIONER OF CORRECTION
    (AC 29694)
    DiPentima, Robinson and West, Js.

      Argued September 9, 2009
    officially released March 2, 2010

      James B. Streeto, assistant public defender, for the appellant (petitioner).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Brian Moore, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying his petition for certification to appeal on the ground that his trial and appellate counsel had provided him with ineffective assistance. We conclude that the habeas court did not abuse its discretion in denying certification to appeal, and, therefore, we dismiss the petitioner’s appeal.

Our decision in the petitioner’s prior appeal provides the necessary factual background for the present case. “In early 1997, the [petitioner] sold two bulletproof vests, or the components thereof, to the victim, Glaister Gopie. Subsequently, the victim attempted, on many occasions, to return one of the vests for a refund. On the evening of May 18, 1997, the victim and his cousin, Andrew Mitchell, drove to Circular Avenue in Waterbury and parked on the street near a friend’s home. The victim, coincidentally, parked directly outside the home of the [petitioner’s] half-sister, Crystal Bolton. Sometime earlier that day, the [petitioner] and his girlfriend had driven to Circular Avenue to visit Bolton. As the [petitioner] left Bolton’s home and as the victim approached his friend’s home, the two men encountered each other. The victim then confronted the [petitioner] about the desired refund.

“From that point, the confrontation escalated into a fistfight, in which the victim was the apparent victor. After the fight ended, the [petitioner] retrieved a loaded .38 caliber revolver from his car. The [petitioner] then shot at the victim twice. The victim ran, fell to the ground shortly thereafter and was found by police lying face down with a single gunshot wound in the middle of his lower back. The victim told an officer that the [petitioner] had shot him. Subsequently, the police arrested the [petitioner].” State v. Moore, 69 Conn. App. 117, 118-19, 795 A.2d 563, cert. denied, 260 Conn. 941, 835 A.2d 59 (2002).

The record reveals the following procedural history. The petitioner, represented by attorney Leonard M. Crone, pleaded not guilty, relying on the defense of self-defense, to one count of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (5). Following a jury trial, the petitioner was convicted of all charges. On December 6, 1999, the court sentenced the petitioner to a total effective term of eighteen years incarceration. State v. Moore, 98 Conn. App. 85, 88, 908 A.2d 568, cert. denied, 280 Conn. 944, 912 A.2d 477 (2006).

The petitioner, again represented by Crone, appealed from the conviction, claiming that he had been deprived of due process and a fair trial by a pattern of prosecu-torial impropriety that pervaded the trial. State v. Moore, supra, 69 Conn. App. 118. After hearing the petitioner’s appeal, this court found that “some of the prosecutor’s conduct was improper” but that “the misconduct was not so prejudicial as to clearly deprive [the petitioner] of a fair trial.” Id. This court affirmed the judgment of conviction. Id.

On December 4,2007, the petitioner filed an amended petition for a writ of habeas corpus, alleging that he had received ineffective assistance of counsel due to Crone’s failure to brief fully and to argue specific instances of prosecutorial impropriety and failure to raise claims of instructional error on appeal. On February 13, 2008, the petition for a writ of habeas corpus was denied. On February 25, 2008, the petitioner filed a petition for certification to appeal, which was denied the following day. This appeal followed.

“Our standard of review for habeas claims is well established. Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 592-93, 940 A.2d 789 (2008).

The petitioner claims that the habeas court abused its discretion in denying certification to appeal because the court improperly concluded that he failed to demonstrate that his trial and appellate counsel provided him with ineffective assistance. The petitioner expressly claims that Crone provided ineffective assistance of counsel (1) in failing to raise on direct appeal the issue of the trial court’s omission of nondeadly force in its jury instructions on self-defense, (2) in failing to object to the trial court’s instructions on intent and failing to raise the issue on direct appeal, (3) in failing to object to the trial court’s repeated use of the word “victim” and failing to raise the issue on direct appeal, and (4) in his presentation on direct appeal of the issue of prosecutorial impropriety. We will address each claim of ineffective assistance of counsel separately.

“To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.” Morant v. Commissioner of Correction, 117 Conn. App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). First, deficient performance may be proved by showing that the counsel’s representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Second, prejudice to the defense “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., 687. “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Internal quotation marks omitted.) Morant v. Commissioner of Correction, supra, 301.

In regard to the second prong, our Supreme Court distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). For claims of ineffective appellate counsel, the second prong considers “whether there is a reasonable probability that, but for appellate counsel’s failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial.” Id., 722. This requires the reviewing court to “[analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.” Id.

“In a habeas appeal, this corut 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 corut constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . 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.) Josephs. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

I

The petitioner first claims that Crone provided ineffective assistance because he did not raise on direct appeal the issue of the omission of nondeadly force in the court’s jury instructions on self-defense. ****8 At trial, Crone filed a request to charge seeking self-defense instructions that included instructions on both the use of deadly and nondeadly force. The court, however, instructed the jury that the petitioner had used deadly force and that the issue for the jury to decide was whether the petitioner “reasonably believed” deadly force was necessary and whether that belief was “objectively reasonable.” The petitioner asserts that his testimony created a factual basis for an instruction on nondeadly force. Specifically, when the petitioner testified, in response to being asked where he shot, “I don’t know. It’s not like I aimed.” The petitioner claims that Crone’s failure to argue this issue on appeal constitutes ineffective assistance of counsel because the degree of force used in self-defense is an issue of fact for the jury, and its omission serves as grounds for a new trial. The habeas court found that the petitioner, through his testimony, implicitly conceded that he used deadly force and that, therefore, an instruction on nondeadly force was not appropriate. We agree.

“[T]he court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 625, 799 A.2d 1034 (2002). The petitioner argues that, according to State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986), he is entitled to present any theory of defense, irrespective of its strength, provided there is a foundation for it in the evidence. After reviewing all of the evidence presented at trial in order to determine whether there is such a foundation from which the jury could reasonably conclude that the petitioner used nondeadly force, we find that there is not. See State v. Whitford, supra, 625.

The petitioner’s statement that he did not aim at Gopie, when placed in the context of his entire testimony, could not have reasonably been interpreted to mean that he did not aim at Gopie’s person and, therefore, could not have possibly supported an instruction on nondeadly force, because he had already testified that he shot at Gopie. The petitioner’s statement, that he did not aim, was in response to the follow up question of where he shot; presumably where on Gopie’s body. In other words, the testimony in its entirety, shows that the petitioner admitted to shooting at Gopie but not at a specific body part. Further, on direct examination, the petitioner was asked, “why did you fire the shots at him?” to which he responded, “[w]hat else was I going to do? I mean, if I didn’t what else am I gonna do, sit in the car and let him blow my brains out?” (Emphasis added.) Because the petitioner conceded that he intentionally shot at Gopie and, therefore, used deadly force, a jury instruction on nondeadly force would have been a factually unsupported instruction. Considering the evidence presented at trial, Crone’s assistance as appellate counsel did not fall below an objective standard of reasonableness because it was within his discretion not to present an unsupported claim. See McIver v. Warden, 28 Conn. App. 195, 202-203, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992).

II

The petitioner next claims that Crone provided ineffective assistance because he did not object to, nor raise on direct appeal, the trial court’s instruction on intent, which the petitioner asserts improperly included inapplicable language that may have misled the jury on an essential element of the charges. The petitioner argues that the trial court’s inclusion of the language “intent to engage in conduct,” in its instructions on intent may have confused the jury and led it to decide the casé based on the petitioner’s general intent to fire the gun, rather than the specific intent required for all of the charges against the petitioner.

The habeas court conceded that “the [trial] court’s instructions [to the jury] on intent were imperfect” but that Crone’s failure to object to the improper jury instructions was not deficient performance because in his representation of the petitioner, he relied on atheoiy of self-defense. “Under a theory of self-defense, a criminal defendant basically admits engaging in the conduct at issue, but claims that that conduct was legally justified.” State v. Collins, 100 Conn. App. 833, 849, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007). Accordingly, the habeas court concluded that Crone’s focus on the prosecution’s burden of disproving self-defense beyond a reasonable doubt, rather than the prosecution’s burden of proving that the petitioner intended to shoot the victim, was consistent with his overall strategy. We agree.

A theory “of self-defense is a justification defense . . . [that] represents a legal acknowledgment that the harm caused by otherwise criminal conduct is, under special justifying circumstances, outweighed by the need to avoid an even greater harm or to further a greater societal interest.” (Internal quotation marks omitted.) State v. Singleton, 292 Conn. 734, 748, 974 A.2d 679 (2009). Crone’s failure to object to the jury instructions was “reasonable considering all the circumstances”; Strickland v. Washington, supra, 466 U.S. 688; because, as he testified to the habeas court, he was relying on the theory of self-defense, which inherently concedes that the petitioner acted intentionally but was justified in doing so. In regard to Crone’s performance as trial counsel, we conclude that his representation did not fall below an objective standard of reasonableness. Id. Because the first prong of Strickland is not met, the habeas court properly found that Crone did not render ineffective assistance of counsel.

Similarly, Crone did not provide ineffective assistance of counsel for failing to present on appeal the issue of improper jury instructions on the element of intent. In McIver v. Warden, supra, 28 Conn. App. 195, this court stated that an attorney may “[select] for review those issues that [the attorney believes are] the strongest and most likely to result in reversal.” Id., 203. Crone, therefore, did not have to argue every colorable claim to render effective assistance and his decision “fell within the range of competence displayed by lawyers with ordinary training and skill . . . .” (Internal quotation marks omitted.) Id. The habeas court, therefore, properly found that Crone did not act as ineffective appellate counsel.

m

In regard to his third claim, the petitioner argues that Crone rendered ineffective assistance of counsel for failing to object to, and to present on direct appeal, the trial court’s use of the term “victim” in reference to Gopie. The petitioner argues that his right to a fair trial, afforded to him through the due process clause of the fourteenth amendment to the United States constitution, was infringed by the court’s use of the word “victim.” The petitioner asserts that the corurt, in its jury instructions, referred to Gopie as “the victim” at least eight times and that the jury was influenced by the usage of this term. The petitioner argues that the issue of whether Gopie was actually a victim was in dispute because at trial he maintained that he thought Gopie was going to use deadly force against him and that he shot Gopie in self-defense. According to the petitioner, the fact that it was in dispute leaves open the possibility that the jury was influenced by hearing Gopie referred to as a victim and that Crone was ineffective for failing to object to the use of that term, either to prompt the trial court to give corrected instructions or alternatively to preserve the issue for appeal. The habeas court found that this did not amount to ineffective assistance of counsel. We agree.

The petitioner cites State v. Cortes, 84 Conn. App. 70, 72-76, 851 A.2d 1230 (2004), aff'd, 276 Conn. 241, 885 A.2d 153 (2005), as controlling authority, in which the defendant and the complainant testified to two very different stories about who had ended their previous relationship and how the complainant had actually sustained her injuries during an argument they had. Id., 73. The court concluded that the jury’s instructions, which referred to the complainant as “the victim,” constituted reversible error because the stabbing was contested. Id., 87. “In cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term ‘victim’ is not inappropriate.” Id., 86.

In State v. Santiago, 100 Conn. App. 236, 253, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 152, 153 (2007), we noted the persuasive argument that if a defendant acts in self-defense, then the complainant is not a victim. In this case, if the defendant had acted in self-defense, Gopie would not have been a victim either. At the time of the petitioner’s criminal trial, however, State v. Cortes, supra, 84 Conn. App. 70, had not been decided and, therefore, the issue of reversible error based on the court’s use of the term “victim” was novel. When assessing an attorney’s performance, “every effort [must] be made to eliminate the distorting effects of hindsight”; Strickland v. Washington, supra, 466 U.S. 689; and so we do not guess at which theory may have been most effective looking backward but what was reasonable at the time. We acknowledge that a “counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance.” Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Further, State v. Cortes, supra, 84 Conn. App. 70, can be distinguished from this case because in Cortes, the word “victim” was used “as many as eighty times”; id., 84 n.9; as opposed to the eight times the petitioner references in the present case, making it far less likely that the jury was influenced improperly.

In 2002, when Crone represented the petitioner in his appeal, the issue of the usage of the term “victim” had not yet been accepted by this court as a valid basis for a meritorious claim, and, so, failure to present it does not establish deficient performance by Crone as appellate counsel for the previously mentioned reasons and, therefore, does not satisfy the first prong of Strickland v. Washington, supra, 466 U.S. 687. The habeas court, therefore, properly found that Crone did not render ineffective assistance as trial counsel or as appellate counsel.

IV

Finally, the petitioner claims that the habeas court abused its discretion by not finding that Crone provided ineffective assistance of appellate counsel in his presentation on direct appeal of the issue of prosecutorial impropriety. The petitioner argues that had Crone included in the petitioner’s appeal several other instances in which the prosecutor acted objectionably at trial, we would have held that the petitioner did not receive a fair trial. Specifically, the petitioner contends that Crone should have included that the prosecutor (1) stated that when the jury returned its verdict of guilty “justice will be done,” that “it’s only by the luck of God that [Gopie is] not paralyzed or dead” and that he had “over ten things that [the petitioner] did that show he’s guilty,” (2) concluded that the petitioner ran because he heard sirens, (3) referred to Gopie as the “victim” to the venire panels and (4) questioned the whereabouts of the jacket the petitioner was wearing on the night at issue and why the petitioner did not call his former girlfriend and sister as witnesses. The habeas court found that “it would have been counterproductive to object to every conceivable misstep by the prosecutor,” and Crone’s decision not to do so, and not to include eveiy minute instance that could be considered prosecutorial impropriety, was aligned with his overall strategy in trying and appealing the case. We agree.

First, in regard to the prosecutor’s statements during closing arguments, Crone testified that he did not want to make excessive objections because in his experience it has a negative effect on jurors. “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 116 Conn. App. 383, 391, 975 A.2d 751, cert. denied, 293 Conn. 925, 980 A.2d 912 (2009). Similarly, on appeal, Crone’s strategy was to focus on his strongest arguments and supporting facts, rather than clutter the appeal with smaller issues and factual instances. “While an appellate advocate must provide effective assistance, he is not under an obligation to raise eveiy conceivable issue.” (Internal quotation marks omitted.) McIver v. Warden, supra, 28 Conn. App. 202. Crone’s omission of the other instances that the petitioner lists as acts of prosecutorial impropriety was within the purview of his discretion as appellate counsel and does not fall below an objective standard of reasonableness. See Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). The habeas court, therefore, did not abuse its discretion in finding that Crone’s failure to object at trial, and his presentation of prosecutorial impropriety on appeal, did not constitute ineffective assistance of counsel.

Accordingly, because the petitioner has not established that the issues he has raised are debatable among jurists of reason, that a court could have resolved them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further; Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 1994); we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

For the reasons set forth previously, we conclude that the petitioner has failed to meet his burden of proof to show Crone’s representation was deficient.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner initially failed to appear to begin serving his sentence. The state charged him with failure to appear in the first degree, in violation of General Statutes § 53a-172, to which he entered a conditional plea of nolo contendere. The court accepted his plea and sentenced him to one year incarceration, consecutive to his previously imposed sentence of eighteen years, and denied his motion to correct an illegal sentence. After hearing the petitioner’s appeal, this court affirmed the judgment of conviction on the charge of failure to appear in the first degree and upheld the denial of his motion to correct an illegal sentence. State v. Moore, supra, 98 Conn. App. 90-91, 93. The claims in that appeal are not at issue here.

       On August 1, 2006, the petitioner filed an amended petition, a return was filed and the petitioner filed a reply to that return. On February 23, 2007, the court granted the petitioner permission to amend the petition and on December 4, 2007, a second amended petition was filed.

       The petitioner also argues in his appellate brief that the habeas court improperly held that Crone had not been ineffective as trial counsel for failing to object to the jury instructions. The habeas court, however, in its memorandum of decision noted that the petitioner did not brief a claim of ineffective assistance at trial with regard to this issue. The issue of the trial court’s instruction on the use of deadly force appears solely in count one of the habeas petition, which is titled “Due Process/Instructional Error.” (The issue of ineffective assistance of trial counsel is not presented in this count.) Furthermore, the issue of Crone’s failure to object to the court’s instructions does not appear in count three, which is titled “Ineffective Assistance of Trial Counsel.” Therefore, we do not review the petitioner’s claim that the habeas court improperly held that trial counsel did not render ineffective assistance by failing to object to this particular jury instruction. See Feen v. New England Benefit Cos., 81 Conn. App. 772, 776, 841 A.2d 1193 (holding that “[i]t is the appellant’s responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” [Internal quotation marks omitted.]), cert. denied, 269 Conn. 910, 852 A.2d 739 (2004). Moreover, “[a] party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given.” Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002), citing Practice Book § 16-20. Crone submitted a request to charge on nondeadly force, preserving the issue for appeal. Therefore this claim is without merit.

       The petitioner was charged with one count of attempt to commit murder in violation of §§ 53a-49 (a) (2) and 53a-54a (a) and two counts of assault in the first degree in violation of § 53a-59 (a) (1) and (5), which require the intent to cause the death of another person, the intent to cause serious physical injury and the intent to cause physical injury respectively. All of these crimes, therefore, require specific intent.

       In its memorandum of decision, the habeas court noted that the trial court improperly referred to “the intent to murder,” rather than the “intent to cause the death of another person,” which it had to self-correct, and that the trial court included inapplicable language by referencing the “conscious objective ... to cause such result or engage in such conduct,” which is the definition for general intent.


author: HARPER, J.

text:
    COLLEEN WIELE v. BOARD OF ASSESSMENT APPEALS OF THE CITY OF BRIDGEPORT
    (AC 30639)
    Flyrm, C. J., and Harper and Mihalakos, Js.

      Argued October 26, 2009
    officially released March 2, 2010

      Russell D. Liskov, associate city attorney, for the appellant (defendant).

      Robert C. Koetsch II, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant, the board of assessment appeals of the city of Bridgeport, appeals from the judgment rendered by the trial court ordering it to make repayment to the plaintiff, Colleen Wiele, for money the city of Bridgeport took from the plaintiffs bank account to satisfy an illegally assessed personal property tax. Specifically, the defendant claims that the court improperly rendered judgment in favor of the plaintiff after determining that the defendant had waived the statute of limitations defense available to it under General Statutes § 12-119. We agree with the defendant that the finding of the court that the defendant waived its statute of limitations defense is clearly erroneous. The judgment is reversed, and we remand the matter for further proceedings consistent with this opinion.

The following facts and procedural history are taken from the record and the decision of the court. The plaintiff and her husband previously resided in Bridgeport. While residing in Bridgeport, the Wieles owned a truck that was registered with the department of motor vehicles. In the summer of 1992, the Wieles sold their Bridgeport home and purchased a new residence in North Carolina. The Wieles moved to North Carolina and took their truck with them. They registered the truck with the North Carolina department of transportation on September 25, 1992. The plaintiff mailed the truck’s Connecticut license plates back to the Connecticut department of motor vehicles and received a receipt for the returned plates. The plaintiff then mailed the receipts for the returned license plates to the Bridgeport tax assessor’s office to show that the truck was no longer registered in Connecticut.

Despite the change in the situs of the truck and the residency of the Wieles, the truck was listed on the city’s grand list of October 1, 1992. The Wieles, having moved out of Bridgeport, were unaware that the truck was assessed by the city. In 1999, the Wieles moved back to Connecticut and have since resided in Stratford. At some point thereafter, the Wieles learned that the truck had been assessed on October 1, 1992, and that there were outstanding taxes owed to the city for that year. After becoming aware of the 1992 assessment, the plaintiff attempted, informally, to resolve the issue with city officials, offering proof that she and her husband had been residents of North Carolina and that the truck was located and registered in North Carolina on October 1, 1992. The protests of the plaintiff, however, rang hollow with the officials she contacted, and the city issued a tax warrant on July 13, 2006, for the amount of $1668.65. This amount was removed from the plaintiffs bank account by the city.

Thereafter, the plaintiff appealed the assessment to the defendant. On April 11, 2007, the defendant issued a letter denying the plaintiffs appeal without explanation. In its letter, the defendant advised the plaintiff that she had sixty days from which to appeal its denial.

Pursuant to General Statutes § 12-117a, the plaintiff appealed from the decision of the defendant to the Superior Court. General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment fist ... to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .” At trial, the plaintiff, represented by counsel for the first time, orally amended her complaint to add a second count contesting the 1992 assessment pursuant to § 12-119. Section 12-119 “provides owners and lessees of property with a remedy to challenge a municipality’s wrongful assessment of tax.” Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 148, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999).

Although counsel for the defendant did not object to the additional count under § 12-119, he was careful to preserve the special statute of limitations defense available under that statute. The limitation in § 12-119 reads as follows: “[Application for relief to the Superior Court] may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . . .” General Statutes § 12-119. On December 2, 2008, the court issued a memorandum of decision in which it concluded (1) that the defendant waived its statute of limitations defense and (2) that the city illegally assessed the Wiele’s truck for taxation. The court ordered the city to make repayment to the plaintiff of the money it collected in satisfaction of the illegally assessed tax. Thereafter, the defendant filed the present appeal, challenging the determination of the court that it had waived its statute of limitations defense.

I

We first address the defendant’s claim that the court improperly found that the defendant waived its statute of limitations defense. We begin by setting forth our standard of review. “Waiver is a question of fact.” AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 622, 866 A.2d 582 (2005). As such, we review the court’s decision to “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. . . . [T]he trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.” (Citation omitted; internal quotation marks omitted.) Id., 622-23.

Applying this standard of review, we conclude that the finding of the court that the defendant waived its statute of limitations defense is clearly erroneous. The issue is whether the defendant intentionally relinquished or abandoned the statute of limitations defense available in § 12-119. “Waiver is the intentional relinquishment or abandonment of a known right or privilege. ... As a general rule, both statutory and constitutional rights and privileges may be waived. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed .... Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citations omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 57, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).

Quite simply, there is no evidence whatsoever that the defendant waived its statute of limitations defense either expressly or by its acts or conduct. To the contrary, the defendant carefully preserved its statute of limitations defense both in its written pleadings and orally before the court. Accordingly, we conclude that the finding of the court that the defendant waived its statute of limitations defense was clearly erroneous.

II

Having concluded that the defendant did not waive its statute of limitations defense, we next consider the defendant’s request that the plaintiffs action be dismissed because it is barred by the statute of limitations. We decline to issue an order dismissing the plaintiffs action outright because, although the trial court only reached the issue of waiver, the plaintiffs substantive arguments, both before this court and the trial court, sound in equitable tolling. We are cognizant that the limitation in § 12-119 is procedural and personal rather than jurisdictional and, therefore, susceptible to equitable doctrines. Therefore, we are unwilling to foreclose the possibility that the plaintiff might overcome the statute of limitations by other equitable means.

In a posttrial brief that was submitted to the Superior Court, the defendant claimed that the last date on which the plaintiff could have brought an action contesting the assessment was October 1, 1993, one year after the date the property was last evaluated for purposes of taxation. In the brief it submitted to this court, the defendant requests that “the decision of the court [should] be set aside and the case [should be] dismissed as [the plaintiffs action] has been brought beyond the statute of limitation[s] pursuant to [§ 12-119].” In essence, the defendant’s requested relief calls for us to conclude that the statute of limitations prescribed by § 12-119 began to run on October 1, 1992, the date the truck was listed on the city’s grand list, and that the period in which the plaintiff could have contested the illegal assessment under § 12-119 terminated one year later, even though the plaintiff was unaware during that time period that the city had taken action adverse to her interests. We decline to interpret the limitation in § 12-119 in such a way.

“The law favors a rational statutory construction and we presume that the legislature intended a sensible result.” State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985). Municipalities are granted fifteen years in which to collect delinquent taxes. General Statutes § 12-164. As the defendant’s counsel noted during oral argument, however, municipalities are not required by statute to notify taxpayers individually that taxes are due. Municipalities are only required to publish, at specified intervals, a general notification to the public that taxes are due and payable at a certain date. Therefore, were we to accept the defendant’s rigid interpretation of the limitation in § 12-119, a municipality wishing to assess and collect taxes on property that is not taxable in its jurisdiction would need only wait for one year beyond the date on which it listed the property on its grand list before taking further action to collect the tax in order to evade a § 12-119 action by invoking the special statute of hmitations defense. In effect, it would be to the strategic advantage of the municipality to delay collection of an illegally assessed tax beyond a year in order to avoid putting a potential plaintiff on notice that a tax had been illegally assessed against their property. The conclusion that the defendant seeks would lead to a bizarre result whereby it would be possible for the time in which a plaintiff can challenge an illegal tax assessment to begin running and to terminate while the plaintiff is completely unaware that a municipality has taken action adverse to the plaintiffs interests, namely, assessing her personal property for taxation. Such a bizarre result could not have been intended by the legislature.

The limitation in § 12-119 is procedural and personal rather than substantive or jurisdictional; L. G. DeFel-ice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975); and is thus subject to equitable defenses. In the plaintiffs appeal to the Superior Court from the defendant dated May 17, 2007, she claims that she took steps to inform the Bridgeport tax assessor’s office that her truck was no longer located in the city and was not notified that it had been assessed until January 27,2006. The defendant then filed an answer on June 8, 2007, in which it raised the statute of limitations defense. The plaintiff, who at the time was not yet represented by counsel, filed a reply to the defendant’s special defense on March 3, 2008. In her reply, the plaintiff alleged that the defendant’s special defense should not bar her claim because she “was not given an opportunity to appeal the original assessment within two years, as [she] was not notified until thirteen years later.” In her brief submitted to this court, the plaintiff argues that a critical difference between her case and other situations in which our courts have interpreted the limitation contained in § 12-119 is that “in the present case the plaintiff did not learn of the illegal tax until 2006 when [she] learned that the delinquent taxes were due.” (Emphasis added.).

Substantively, the arguments of the plaintiff are the same ones that a party would make to claim equitable tolling. The doctrine of equitable tolling is accepted in our state and has been applied by our courts to limitations in other statutes. See, e.g., Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 264, 777 A.2d 645 (2001) (time requirement for filing discrimination petition pursuant to General Statutes § 46a-82 [e] not jurisdictional and subject to waiver and equitable tolling). Equitable tolling has been defined as the following: “The doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had expired.” Black’s Law Dictionary (9th Ed. 2009). “The tolling of a statute of limitations may potentially overcome a statute of limitations defense. When a statute of limitations is tolled, it does not run and the time during which the statute is tolled is considered, in effect, as not having occurred. Therefore, if a statute in a particular case is tolled, it is as if the statute commenced on a later date. . . . The doctrine of equitable tolling applies in certain situations to excuse untimeliness in filing a complaint.” (Citation omitted; internal quotation marks omitted.) Gager v. Sanger, 95 Conn. App. 632, 638, 897 A.2d 704, cert. denied, 280 Conn. 905, 907 A.2d 90 (2006).

“ [T]he inteipretation of pleadings is always a question [of law] for the court .... The modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint [or counterclaim] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theoiy upon which it proceeded. . . . Although . . . our jurisprudence requires us to interpret pleadings broadly, we [also] must constme them reasonably to contain all that they mean but not in such a way so as to strain the bounds of rational comprehension.” (Citation omitted; internal quotation marks omitted.) Taylor v. Silverstein, 104 Conn. App. 468, 479-80, 934 A.2d 839 (2007), cert. denied, 285 Conn. 910, 940 A.2d 809 (2008). A reasonable reading of the pleadings reveals that the plaintiff made arguments consistent with the doctrine of equitable tolling. As our appellate courts have not yet had an opportunity to consider specifically whether the doctrine of equitable tolling is applicable to the limitation in § 12-119, and given our preference for a broad and realistic reading of pleadings, the plaintiff can be forgiven for not labeling her general theory as such in her pleadings. Because, however, the court did not make any determination as to whether the limitation was equitably tolled, we are unable to reach a conclusion regarding this issue. On remand, the trial court should consider the applicability of the substantive equitable theories raised by the plaintiff in her pleadings.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiffs husband was not a party to the plaintiffs action to recover the funds removed from her bank account.

       The difference between a claim brought under § 12-117a and a claim brought under § 12-119 was explained by our Supreme Court in Breezy Knoll Assn., Inc. v. Morris, 286 Conn. 766, 778 n.20, 946 A.2d 215 (2008): “[Section] 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes § 12-119 from its more frequently evoked companion, [§ 12-117a]. . . . Under § 12-119, there are two possible grounds for recovery: the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions.” (Citation omitted; internal quotation marks omitted.) “In short, § 12-117a is concerned with overvaluation, while [t]he focus of § 12-119 is whether the assessment is illegal.” (Internal quotation marks omitted.) Griswold Airport, Inc. v. Madison, 289 Conn. 723, 740, 961 A.2d 338 (2008).

       In its decision, the court came to the unsupported supposition that a municipality may be considered to have waived its statute of limitations defense to a § 12-119 action when there is a significant delay between assessment and collection of the tax. The court cited L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975), in which our Supreme Court held that that “the limitation in § 12-119 is procedural and personal rather that substantive or jurisdictional and is thus subject to waiver.” Thus, there is no doubt that a defendant must affirmatively plead the issue of limitation, and the court cannot raise the issue on its own motion. The determination of the trial court, however, that waiver may be inferred by a municipality’s delay in collecting a tax is not borne out by the statutory framework governing municipal taxation of property. As the defendant’s counsel duly noted at oral argument and in his brief, General Statutes § 12-164 affords municipalities fifteen years from the date on which a tax is due to collect the tax. Because our legislature has seen fit to give municipalities a lengthy window in which to collect delinquent taxes, we will not interpret a delay in collection that falls within that window as an intentional relinquishment or abandonment of the statute of limitations defense available under § 12-119.

       The defendant’s answer to the plaintiffs appeal to the Superior Court included a section entitled “Special Defense” and made the following assertion: “The [pjlaintiff is precluded from maintaining this action as it is beyond the [sjtatute of [ljimitations pursuant to Connecticut General Statutes [§§] 12-117a and 12-119.” The defendant again raised the limitations issue in a posttrial brief in which it argued that “the [pjlaintiffs appeal must be dismissed, as barred by the [sjtatute of [ljimitations.”

       Toward the end of the trial, counsel for the defendant was asked whether he had any objection to allowing the plaintiff to amend her appeal to add a count to include a claim under § 12-119. The defendant’s counsel replied that he had no objection and then stated the following: “But I also want it on the record that my special defense of statute of limitation should also be in there as well.” The court then acknowledged that the defendant was claiming a statute of limitations defense.

       General Statutes § 12-145, which governs tax notification, provides in relevant part: “The tax collector of each municipality shall, at least five days next preceding the time when each tax becomes due and payable, give notice of the time and place at which the tax collector will receive such tax by advertising in a newspaper published in such municipality or, if no newspaper is published in such municipality, by advertising in any newspaper of the state having a general circulation in such municipality and by posting such notice on a signpost therein, if any, otherwise on a signpost in the town within which such municipality is situated, if any, or at some other exterior place near the office of the town clerk. The tax collector shall repeat such advertising within one week after such tax has become due and payable and, again, at least five days before such tax becomes delinquent. . . .”

       Another hypothetical may better illustrate why we cannot accept the defendant’s position. Under the defendant’s rigid interpretation of § 12-119, a municipality like Bridgeport could conceivably place on its grand list the personal property of a person living in Hartford who had never been to Bridgeport and whose personal property had never been located in Bridgeport. If our hypothetical Hartford denizen did not bring suit within one year of the assessment, Bridgeport could successfully raise the § 12-119 statute of limitations defense.

       We note that our Supreme Court expressed similar reservations regarding a strict interpretation of the limitations period in § 12-119 in Interlude, Inc. v. Skurat, 253 Conn. 531, 754 A.2d 153 (2000). In Interlude, Inc., the court ultimately found that § 12-119 was inapplicable because there was no issue regarding the assessed property value of the plaintiffs property and because the plaintiff did not own the property on the assessment date; therefore, because the court concluded that the plaintiff had not brought a § 12-119 action, the limitations period in the statute did not bar the plaintiff from seeking other relief. Id., 538. The court noted, however, that the “application of § 12-119 to the facts of this case would achieve the bizarre result that [the plaintiff] would have had only six days in which to bring this cause of action before the statute of limitations expired on October 1, 1992. We decline to construe § 12-119 to this case because [t]he law favors a rational statutory construction and we presume that the legislature intended a sensible result.” (Internal quotation marks omitted.) Id., 539.

       The first appearance by the plaintiffs counsel was filed in the Superior Court on August 20, 2008, the same day that the trial was held regarding her appeal.


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. FRANCIS J. KURZATKOWSKI, JR.
    (AC 29610)
    Lavine, Beach and McDonald, Js.

      Argued October 22, 2009
    officially released March 2, 2010

      Michael Zariphes, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Francis J. Kurzatkowski, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l)* and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that (1) there was insufficient evidence to establish assault of a peace officer, (2) the trial court improperly failed to instruct the jury on the elements of intent and causation in its charge on assault of a peace officer, (3) § 53a-167c (a) (1) did not adequately apprise him that his conduct constituted the crime of assault of a peace officer without intending to cause the peace officer physical injury and, therefore, was unconstitutionally vague, and (4) the court violated his right not to be placed in double jeopardy. We affirm in part and reverse in part the judgment of the trial court.

The jury could reasonably have found the following facts. On the morning of January 13,2006, shortly before 1 a.m., the intoxicated defendant departed the Black Bear Saloon in Norwalk. John Taranto, aNorwalkpolice officer, was stationed at the comer of North Water Street and Washington Street when he heard the defendant’s tires screeching and observed the defendant driving in his direction without activating his headlights. Taranto exited his cruiser. The defendant stopped his car about fifteen feet from Taranto. When Taranto approached the defendant to talk to him, the defendant accelerated his car and almost hit Taranto. The defendant, who was on parole, put his car into reverse and backed up on Washington Street. Shortly after radioing headquarters about the incident, Taranto observed Sergeant James Walsh try to stop the defendant by turning on his cruiser’s overhead lights.

When the defendant saw Walsh turn on his cruiser’s overhead lights, he stopped, put his car back into drive and sped forward, almost hitting Taranto in his cruiser. With several police cars now in pursuit, the defendant continued to drive at a high rate of speed through Nor-walk, disregarding stop signs and traffic signals. He fled until he lost control of his vehicle when it hit a guardrail on the Route 7 north connector of the combined Interstate 95 south and Route 7 north entrance ramp. Following the crash, Walsh observed the defendant exit his car and start to run south on the connector back down the ramp. Walsh radioed headquarters, exited his cruiser and ran after the defendant.

When Walsh caught up to the defendant, he tackled him from behind and they both fell to the ground, against the guardrail. The defendant violently fought and kicked Walsh, so Walsh tried to straddle the defendant in order to handcuff him. Walsh also attempted repeatedly to subdue the defendant with his Taser gun. John Haggerty, a Norwalk police officer, testified that during this struggle, he ran to help Walsh, slipped on sand and hit both Walsh and the defendant, knocking Walsh away from the defendant and onto the ground. Walsh then got back up and joined Haggerty, who was now wrestling with the defendant. Several other officers arrived to assist Walsh and Haggerty in subduing the defendant. The officers eventually were able to handcuff the defendant and carry him to the cruiser.

Walsh testified that after the incident, he found that he had “bloodied both knees . . . [and] had an ankle injury which required doctor’s attention ... an Achilles tendon which required a [workers’ compensation insurance claim], and things like that,” and he also suffered pain. When Walsh was asked if his Achilles tendon injury had occurred as a result of having tackled the defendant, he responded, “I don’t really know when it occurred; all I know [is that] I felt it after everything stopped. I pulled up my pants, I had two bloody knees and I remember I had to go to the doctor the next day, and had to ... go on [workers’ compensation] for a few days . . . .”

On October 17, 2007, the jury found the defendant guilty on all five counts charged in the information. The defendant also entered a plea of nolo contendere to part B of the information, which charged him with being a persistent serious felony offender in violation of General Statutes § 53a-40 (c) and with having previously been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs pursuant to General Statutes § 14-227a (g). The court sentenced the defendant to the following terms of imprisonment: two years and one day, followed by ten years special parole for assault of a peace officer; one year for operating a motor vehicle while under the influence of intoxicating liquor or drugs; thirty days for failure to stop a motor vehicle when signaled; thirty days for interfering with an officer; and thirty days for reckless driving. The sentences imposed were ordered to run concurrently, for a total effective sentence of two years and one day in prison followed by ten years of special parole. This appeal followed.

I

The defendant claims on appeal that the evidence was insufficient to support his conviction of assault of a peace officer pursuant to § 53a-167c (a) (1). The defendant claims that the state presented insufficient evidence to prove beyond a reasonable doubt that (1) he had the requisite specific intent to injure Walsh and (2) Walsh was injured by any of the defendant’s actions. We disagree.

The defendant’s claim of insufficient evidence is reviewable even if it may not have been properly preserved at trial. Our Supreme Court has held that “[u]npreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.” (Internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13, 32 n.17, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). Accordingly, we will review the defendant’s challenge to the sufficiency of the evidence.

“The standard of review we apply to a claim of insufficient evidence is well established. . . . [W]e 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ramirez, 107 Conn. App. 51, 62, 943 A.2d 1138 (2008), aff'd, 292 Conn. 586, 973 A.2d 1251 (2009).

Pursuant to General Statutes § 53a-167c (a), to prove a person guilty of assault of a peace officer, the state must establish beyond a reasonable doubt that the defendant “with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties . . . causes physical injury to such peace officer . . . .” General Statutes § 53a-167c (a); see also State v. Casanova, 255 Conn. 581, 592, 767 A.2d 1189 (2001).

The requisite intent for assault of a peace officer is the intent to prevent the peace officer from performing his duties rather than the intent to cause the resulting injury. “Intent to cause physical injury is not a prerequisite to culpability under this statute.” State v. Nixon, 32 Conn. App. 224, 237, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995).

At trial, Walsh testified that in an effort to arrest the defendant, who had fled on foot, he tackled him from behind and they both fell into a guardrail. He continued to wrestle with the defendant, who was violently fighting and kicking him, and tried to straddle the defendant to handcuff him. He also repeatedly attempted to use his Taser gun to subdue the defendant. It was only after Walsh was joined by several other officers that an officer was able to handcuff the defendant. Walsh further testified that as a result of the struggle with the defendant, he had bloodied both knees, suffered an ankle injury that required medical attention, his Achilles tendon required a workers’ compensation insurance claim and he also suffered pain.

Construing the evidence in a light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of assaulting a peace officer. The jury had sufficient evidence before it from which it could conclude that the defendant had the requisite intent to prevent Walsh from performing his duties, and the defendant’s actions were a proximate cause of Walsh’s injuries. We reject the defendant’s argument.

II

The defendant claims that the court improperly failed to instruct the jury on the elements of intent and causation as to the charge of assault of a peace officer. The defendant also argues that, by failing to instruct the jury on essential elements of the crime, the court misled the jury and deprived him of his right to due process. We find no merit in the defendant’s claim.

A

The defendant adequately preserved his claim at trial that the court improperly failed to instruct the jury on the element of intent. The defendant argues that the court misled the jury when it failed to define the specific intent to injure element as to the charge of assault of a peace officer. Our Supreme Court has held, however, that the requisite intent for assault of a peace officer is the intent to prevent the peace officer from performing his duties rather than the intent to cause the resulting injury. See State v. Nixon, 231 Conn. 545, 552-54, 651 A.2d 1264 (1995). Having reviewed the charge as a whole, we conclude that it is not reasonably possible that the jury was misled.

B

The defendant did not preserve his claim that the court failed to instruct the jury properly on the element of causation and, therefore, seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. A defendant can prevail on a claim of constitutional error not preserved at trial only by satisfying the four conditions of Golding. State v. Golding, supra, 239. “[W]e are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Internal quotation marks omitted.) State v. Krzywicki, 39 Conn. App. 832, 836, 668 A.2d 387 (1995), quoting State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

A “failure to instruct the jury adequately with regard to an essential element of the crime of assault of a peace officer may result in a due process violation implicating the fairness of the trial. . . . The issue is one of constitutional magnitude implicating a fundamental right.” (Citation omitted.) State v. Dunbar, 37 Conn. App. 338, 342, 656 A.2d 672, cert. denied, 233 Conn. 906, 657 A.2d 644 (1995). The defendant has failed to show, however, that a constitutional violation clearly exists and that he was clearly deprived of a fair trial.

The defendant claims that the court improperly failed to instruct the jury as to the intervening cause doctrine. The defendant argues that because Haggerty slipped and hit both Walsh and the defendant, there was an intervening cause of Walsh’s injuries, and that the absence of such an instruction misled the jury and deprived him of a fair trial.

“Our Supreme Court has discussed the requirements of proper jury instructions on [intervening cause] in criminal prosecutions in several decisions. . . . [Our] Supreme Court . . . stated in State v. Munoz, [233 Conn. 106, 121 n.8, 659 A.2d 683 (1995)]: We emphasize that, as State v. Leroy, [232 Conn. 1, 13, 653 A.2d 161 (1995)], suggests, the requirement of language in the jury instructions regarding an efficient, intervening cause is not ironclad. It arises in those cases in which the evidence could support a finding by the jury that the defendant’s conduct was overcome by an efficient, intervening cause, or in which the evidence regarding proximate causation was such that, based on the doctrine of efficient, intervening cause, the jury could have a reasonable doubt about the defendant’s guilt.” (Citations omitted; internal quotation marks omitted.) State v. Jenkins, 40 Conn. App. 601, 607-608, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996). In Munoz, our Supreme Court defined intervening cause as one that “does more than supply a concurring or contributing cause of the injury, but is unforeseeable and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct.” State v. Munoz, supra, 124.

We conclude that the court did not improperly fail to instruct the jury on the intervening cause doctrine. Walsh testified at trial that he struggled with the defendant, who resisted arrest. Haggerty testified that as he approached the struggle to assist Walsh, he slipped and hit both Walsh and the defendant. The facts support the conclusion that if the defendant had not struggled and resisted arrest, Haggerty would not have slipped and hit Walsh, who was grappling with the defendant, knocking Walsh to the ground. It was foreseeable that other officers, such as Haggerty, would come to Walsh’s aid in subduing the defendant. Because an instruction on the intervening cause doctrine was not warranted by the evidence, failing to give such an instruction did not present a reasonable possibility that the jury was misled nor the defendant deprived of due process. Therefore, we conclude the defendant has not satisfied the third condition enunciated in Golding, and we reject the defendant’s claim.

Ill

The defendant’s third claim is that § 53a-167c (a) (1) is unconstitutionally vague, as applied to him, because he could not have known that his conduct constituted the crime of assault of a peace officer in the absence of intent to cause the officer physical injury. We disagree.

The defendant concedes that he did not properly preserve his claim at trial and seeks to prevail under State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. See Practice Book § 60-5. We review his claim pursuant to State v. Golding, supra, 239-40. We conclude, however, that the third prong of Golding has not been satisfied because the defendant has failed to establish that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

Determining whether the defendant’s constitutional rights to fair notice were violated presents a question of law over which our review is de novo. State v. Vakilzaden, 272 Conn. 762, 768-69, 865 A.2d 1155 (2005). “Our analysis first requires us to restate the common-law rule that everyone is presumed to know the law and that ignorance of the law excuses no one from criminal sanction. ... In reviewing a claim that a statute ... is unconstitutionally vague, we also must be mindful of the following principles. Our [Supreme Court has held] that a penal statute [must] define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . and must not impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. . . . Finally, [i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness . . . (Citations omitted; internal quotation marks omitted.) State v. Knybel, 281 Conn. 707, 713-14, 916 A.2d 816 (2007).

“For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on his claim, the defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.” (Citation omitted; internal quotation marks omitted.) Id., 714.

As set forth in part I of this opinion, § 53a-167c (a) (1) does not require an intent to cause an injury. The statute clearly provides fair warning that a “specific intent to injure” the officer is not an element of the offense. See State v. Nixon, supra, 231 Conn. 552-54. As such, § 53a-167c (a) (1), affords a person with ordinary intelligence that “any resulting injury to [the officer from intentionally preventing a peace officer from performing his duties when the officer is on duty] whether intentional or otherwise, would give rise to a violation of [the law].” State v. Nixon, supra, 32 Conn. App. 237. The statute prohibits intentionally interfering with a peace officer and thereby injuring that officer. Id. This prohibition is well known to ordinary people. We conclude that the statute is not unconstitutionally vague, and, therefore, the defendant cannot prevail on his claim under the third prong of Golding.

IV

The defendant’s final claim is that his conviction of interfering with an officer and assault of a peace officer violated his right under the United States and Connecticut constitutions not to be placed in double jeopardy. The defendant claims, and the state concurs, that the defendant’s unpreserved double jeopardy claim is reviewable under State v. Golding, supra, 213 Conn. 239-40. We agree. “[I]f double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable . . . .” State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). As a threshold matter, claims of double jeopardy involving multiple punishments in the same trial present a question of law to which we afford plenary review. State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009); State v. Culver, 97 Conn. App. 332, 336, 904 A.2d 283 (2006), cert. denied, 280 Conn. 935, 909 A.2d 961 (2006).

As applied to this case, the double jeopardy clause protects the defendant from multiple punishments for the same offense. To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two-pronged test. “First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. ... In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Citations omitted; internal quotation marks omitted.) State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988).

From our examination of the information and in light of State v. Mincewicz, 64 Conn. App. 687, 692-93, 781 A. 2d 455 (interpreting vague counts in information in favor of defendant’s double jeopardy claims), cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001), we conclude that the double jeopardy clause prohibits the conviction on counts one and two of the information. The state in its appellate brief does not concede error but stated that it fully expects this court to find that the conviction and the sentences imposed on those counts violated the defendant’s double jeopardy rights. The state does not urge us to overrule Mincewicz in this respect, nor did it submit argument and authorities to that end. The state merely asserts that it does not concede error despite the constraints of Mincewicz, so it may want to pursue this claim in the Supreme Court. The state concludes its brief by stating, in accordance with Mincewicz, that it would expect this court to vacate the defendant’s sentence for interfering with an officer and to combine his conviction on that charge with his conviction of assault of a peace officer. Accordingly we do so.

The defendant’s sentence for interfering with an officer is vacated and the case is remanded for resentenc-ing. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also was charged with and found guilty of failure to stop a motor vehicle when signaled in violation of General Statutes § 14-223 (b), operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (2) and reckless driving in violation of General Statutes § 14-222 (a). Those charges are unrelated to this appeal.

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of public safety or emergency medical personnel when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . .”

       General Statutes § 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.”

       The court instructed the jury: “For you to find the defendant guilty of this charge, the [s]tate must prove the following elements beyond a reasonable doubt. One, that the victim of the assault was a reasonably identifiable peace officer. Two, that the conduct of the defendant occurred while the police officer acted in the performance of his duties. Three, that the defendant had the specific intent to prevent the peace officer from performing his lawful duty. And four, that the defendant caused physical injury to the peace officer. This charge applies only to Sergeant Walsh.”

       To prevail under the plain error doctrine, the defendant must demonstrate that “the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). This doctrine is not “implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., quoting State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992). We conclude that the defendant has not met the rigorous standard for prevailing under the plain error doctrine.

       The four conditions of Golding are: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       See footnote 5 of this opinion.

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of public safety or emergency medical personnel when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . .”

       We note that this court has held that our state constitution does not afford any greater due process rights than those afforded under the federal constitution’s double jeopardy clause in analyzing double jeopardy claims arising from multiple convictions and punishments imposed in a single trial. State v. Adams, 38 Conn. App. 643, 654, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995); State v. Laws, 37 Conn. App. 276, 295, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

       The first count provides: “The State of Connecticut alleges that on or about January 13,2006, in Norwalk, Connecticut, [the defendant], with intent to prevent a reasonably identifiable peace officer from performing his or her duties; and while such officer was in the performance of his or her duties, [the defendant] caused physical iryury to such officer, to wit: James Walsh, in violation of Connecticut General Statutes § 53a-167c (a) (1).”
      The second count provides: “The State of Connecticut alleges that on or about January 13,2006, in Norwalk, Connecticut, [the defendant] obstructed, resisted, hindered, or endangered any peace officer, in the performance of such peace officer’s duties, in violation of Connecticut General Statutes § 53a-167a (a).”