text:
    STATE OF CONNECTICUT v. ERIC ROSARIO
    (AC 27959)
    DiPentima, Lavine and Beach, Js.

      Argued November 14, 2008
    officially released March 10, 2009

      John W. Watson, special public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Paul J. Ferencek, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Eric Rosario, appeals from the judgment of conviction, rendered after a court trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a). The trial court also found the defendant guilty of being a persistent dangerous felony offender pursuant to General Statutes § 53a-40 (a) (1) (A) (iv). On appeal, the defendant claims that (1) the state adduced insufficient evidence to sustain his conviction of robbery and conspiracy to commit robbery, (2) the court improperly permitted the state to introduce into evidence two incul-patory statements he made to the police in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), (3) the court improperly admitted into evidence an irrelevant photographic array by which the victim identified the defendant’s coconspirator and (4) the court’s canvass of the defendant was insufficient to establish that he waived his right to be tried by a finder of fact who was unaware of the part B information. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the defendant’s appeal. In the early morning hours of December 31, 2003, Sono Singh was working alone on the 7 p.m. to 7 a.m. shift at Atlantic News & Variety, a convenience store on Atlantic Street in Stamford. Sometime between 1 a.m. and 1:30 a.m., Singh noticed a man, later identified as Jonathan Rios, enter the store, linger for about fifteen minutes and leave without purchasing anything. Singh was able to notice his physical characteristics and that he was wearing a baseball cap. The defendant stated, during a later interview with police, that he was friendly with Rios and that he waited outside the store while Rios went inside.

Business was slow between 2:45 a.m. and 3 a.m. Singh rested his head on the cashier’s counter but did not fall asleep. While Singh was resting his head on the counter, a person, later identified as Rios, entered the store and struck him in the head with what Singh believed to be a metal rod. In a later interview with the police, the defendant admitted to being with Rios in the vicinity of the store and seeing Rios enter the store a second time. Singh looked up and recognized the person who had hit him to be the same man who previously had entered the store. During the attack, Singh saw another man, who was later identified as the defendant, enter the store. He was wearing a bandana around his mouth and nose. The defendant grabbed the cash register on the counter and dropped it on the floor. After dropping the cash register, he ran from the store. Rios followed him out of the store. Upon leaving the store, the defendant and Rios ran in opposite directions. Singh then attempted to call for help, but he was unable to do so because the telephone cord had been removed from the telephone. Shortly thereafter, a regular customer entered the store and telephoned the police from a pay telephone across the street. Prior to the attack, the register contained bills of various denominations, including $100 bills and $20 bills. After the attack, the cash register did not contain any $100 bills or $20 bills.

At approximately 3:10 a.m., Lawrence Brown, a sergeant with the Stamford police department, was dispatched to the scene. When he arrived, two other officers were already present. Brown noticed the defendant walking on the opposite side of Atlantic Street while talking on his cellular telephone. There were no other pedestrians on the street, and the defendant was dressed only in a thin running suit despite the near freezing temperature. He acted nervous and defensive. He gave the police his name and stated that he lived in New York City but was in Stamford visiting his grandfather, who lived approximately one mile from the scene.

Later, Singh was able to identify Rios from a photographic array as the person who had assaulted him. Singh was unable to identify the second perpetrator because he never saw his face. The police sought the identity of the second perpetrator and interviewed the defendant. At trial, Sergeant Anthony Lupinacci of the Stamford police department, whose testimony the court credited, gave the following account of his two interviews with the defendant. On February 6, 2004, he and Officer Rafael Barquero interviewed the defendant at the Stamford police department. The officers advised the defendant of his Miranda rights. Although the defendant refused to sign an advisement of rights form, he agreed to discuss what had happened on the night in question. The defendant initially told the police that he had traveled by train from New York City to Stamford in the hours before the robbery to attend a family reunion. On the train, the defendant met two men, one of whom was Rios. Upon arriving, the defendant and the two men walked around downtown Stamford for a while. Shortly thereafter, the defendant left the two men and went to his grandfather’s house. He remained at his grandfather’s house for the rest of the evening until he received a telephone call from Rios, who wanted directions back to the train station. The defendant left his grandfather’s house and while walking to meet Rios, he encountered Brown and police Sergeant Ernest Maldonado across the street from the crime scene.

The defendant, who appeared to be extremely nervous during the interview, then began crying and admitted that “he was lying about . . . the story that he just told.” He further stated that he and Rios were friends who had traveled from New York City together, and he related the following modified version of events. After arriving in Stamford, the defendant and Rios dropped off some clothing at the house of the defendant’s grandfather and then walked around town late at night. At one point, Rios walked into a store on Atlantic Street, stayed for a short time and then left. He and Rios walked around some more but eventually returned to the store. Rios entered the store while the defendant remained outside talking on his cellular telephone. The defendant looked into the store window and saw Rios striking the clerk over the head with some type of stick. The defendant knocked on the window but then ran back to his grandfather’s house. Once at his grandfather’s house, the defendant changed his clothes. He received a telephone call from Rios asking for directions to the train station. The defendant left his grandfather’s house and walked downtown where he encountered the police at the crime scene. When the interviewing officers asked the defendant whether he had entered the store when Rios was striking the clerk, he put his head down and did not respond. The interview concluded, and the defendant returned to New York City.

The police subsequently obtained a warrant for the defendant’s arrest. Lupinacci and another officer traveled to New York City to interview the defendant and inform him of the warrant. They met with the defendant and informed him of his Miranda rights. Before any questioning began, the defendant stated: “If I talk to you about that night, I’ll go to jail for a long time.” The defendant thereafter was uncooperative and unwilling to answer questions. The defendant then stated that “[y]ou guys just want me to tell you what happened so I can go — so I can get a lot of time.” The defendant did not provide any other statements.

Following a trial to the court, the court found the defendant guilty of the crimes charged in the part A information. Thereafter, on the part B information, the court found the defendant guilty of being a persistent dangerous felony offender under § 53a-40 (a) (1) (A) (iv). The court did not impose an enhanced sentence pursuant to the part B information. The court imposed a total effective sentence of twelve years incarceration followed by eight years special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the state adduced insufficient evidence to sustain his conviction of robbery and conspiracy to commit robbery. He argues that there was insufficient evidence that (1) a larceny was committed, (2) he was the perpetrator and (3) he conspired with Rios to rob the convenience store. We disagree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

“A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime ... or (3) uses or threatens the use of a dangerous instrument . . . .” General Statutes § 53a-134 (a). “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133. “Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Torres, 111 Conn. App. 575, 584, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

“To establish the crime of conspiracy under § 53a-48, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy. . . . The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . [I]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 461-62, 886 A.2d 777 (2005).

The defendant first argues that the state adduced insufficient evidence to establish that any money was taken from the store in the course of the event. We disagree and conclude that the court reasonably could have found, on the basis of the evidence introduced at trial, that money was taken from the cash register. The state presented evidence that money that was present immediately before the crime was missing immediately afterward. Singh testified that prior to Rios’ attacking him, the cash drawer of the register contained a few $100 bills and approximately five to ten $20 bills. The state entered, as full exhibits four and five, photographs depicting the smashed cash register on the floor where it was dropped during the robbery. Joseph Steyer, a Stamford police officer, testified that state’s photographic exhibits four and five depicted the appearance of the register and money at the time he arrived at the scene. He further testified that when he arrived, Singh was standing outside the front door with another officer who already had arrived. Singh told Steyer that no one had entered the store since the robbery. Steyer testified that he set up a cordon to prevent anyone other than police personnel from entering and that no one touched the crime scene until Officer Corey Caserta arrived and photographed the scene. The photographs show one $20 bill lying on top of the cash drawer. No $100 bills or other $20 bills were visible. In the photograph, $10 bills, $5 bills and $1 bills appear in their appropriate slots, but the slots adjacent to these smaller denominations were empty. This evidence presented by the state allowed the court reasonably to conclude that the $100 bills and $20 bills that had been present in the cash drawer immediately prior to the incident, but which were missing immediately thereafter, were taken during the course of the intervening robbery.

“[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Hyde, 104 Conn. App. 574, 580, 935 A.2d 639 (2007), cert. denied, 285 Conn. 910, 940 A.2d 809 (2008); see also State v. Caprilozzi, 45 Conn. App. 455, 696 A.2d 380 (evidence demonstrating, inter alia, large quantity of beer missing from warehouse inventory sufficient to establish defendant’s theft of beer), cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

The defendant next argues that the state adduced insufficient evidence to establish his identity as the man wearing the bandana who participated with Rios in the crimes committed on the night in question. We disagree and conclude that the collective evidence presented by the state allowed the court to find beyond a reasonable doubt that the defendant was the second participant in the robbery and conspiracy. During his February 6,2004 interview with the police, the defendant initially told the police a version of events that placed him at his grandfather’s house during the commission of the robbery. In this version, he had remained at his grandfather’s house until he received a telephone call from Rios asking him for directions to the train station. At that point, he encountered Brown and Maldonado outside the crime scene while looking for Rios. After telling the police this version of events, the defendant began crying during the interview and told the police that he had lied to them. He then recounted a second version of events that placed him at the crime scene while the robbery was occurring. See State v. Booth, 250 Conn. 611, 656-57, 737 A.2d 404 (1999) (evidence that defendant lied to police supports conclusion that lies were made to cover up participation in crime and would be considered as evidence of consciousness of guilt), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000); State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003 (“[t]he state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty” [internal quotation marks omitted]), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). Moreover, during his interview with police in New York City, the defendant stated: “If I talk to you about that night, I’ll go to jail for a long time,” and, “[y]ou guys just want me to tell you what happened so I can go — so I can get a lot of time.”

Singh testified that two men participated in the robbery — one assaulted him with the pipe, and the other, wearing a bandana, grabbed the cash register from the counter and dropped it to the floor. Singh testified that there was no one else outside the store when the robbers fled, let alone someone on a cellular telephone. Brown’s testimony placed the defendant in the vicinity of the crime scene dressed inappropriately for the near freezing temperature. In the second version of events that the defendant told the police, he placed himself at the crime scene with the opportunity to commit the crime and with a clear connection to Rios. See State v. Famiglietti, 219 Conn. 605, 614, 595 A.2d 306 (1991) (defendant’s opportunity to commit crime supported finding of guilt). Singh’s testimony indicated that there were two perpetrators, but the defendant, in his second version of events, mentioned that only Rios was inside the store. He did not mention the presence of another person in the store during the commission of the crime. On the basis of the defendant’s inconsistent statements to police, his statements made during the interview in New York City, the victim’s testimony that two persons were involved, police testimony regarding the defendant’s presence in the vicinity of the crime scene and the defendant’s opportunity to commit the crime and connection to Rios, the court reasonably could have concluded that the defendant was the second robber.

The defendant next claims that there was insufficient evidence that he conspired with Rios to rob the convenience store. We disagree and conclude that the evidence presented allowed the court to find that the defendant and Rios knowingly engaged in a mutual plan to rob the store. Rios entered the store between 1 and 1:30 a.m., lingered for approximately fifteen minutes and left. At about 3 a.m., he reentered the store and struck Singh on the head with a pipe. The defendant thereafter entered the store and smashed the cash register on the floor. From these facts, the court could have found beyond a reasonable doubt that the defendant and Rios conspired to rob the convenience store. “Conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted.) State v. Johnson, 188 Conn. 515, 530, 467 A.2d 1237 (1982).

On the basis of our review of the record, we conclude that sufficient evidence existed to support the defendant’s conviction of robbery and conspiracy to commit robbery.

II

The defendant next claims that the court improperly permitted the state to introduce into evidence two incul-patory statements that he had made to police officers during a May, 2004 interview in New York City in violation of Doyle v. Ohio, supra, 426 U.S. 610. He contends that his statements, “[i]f I talk to you about what happened that night, I’ll go to jail for a long time,” and, “[y]ou guys just want me to tell you what happened so I can go — so I can get a lot of time,” were invocations of his fifth amendment right to remain silent and improperly were used in evidence against him. We decline to review this claim.

At trial, the defendant objected to the admission of the statements on the grounds that they were made while he was in custody and were involuntary and that the statements were more prejudicial than probative. The defendant did not claim before the court that those statements were expressions of his right to remain silent that were used against him in violation of Doyle. Because the grounds claimed on appeal are different from those presented before the trial court, we conclude that the defendant did not preserve his claim. See State v. Marshall, 87 Conn. App. 592, 598, 867 A.2d 57, cert. denied, 273 Conn. 925, 871 A.2d 1032 (2005). The defendant fails in his principal brief to seek review of his unpreserved claims under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. Rather, he seeks review under Golding for the first time in his reply brief. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 97 n.23, 675 A.2d 866 (1996). This policy applies to requests for review under Golding. See, e.g., State v. Wright, 62 Conn. App. 743, 756, 774 A.2d 1015 (declining to afford review under Golding), cert. denied, 256 Conn. 919, 774 A.2d 142 (2001); State v. Smith, 57 Conn. App. 478, 483, 749 A.2d 67 (2000) (same). “[T]he reply brief is not the proper vehicle in which to provide this court with the basis for our review under ... [a Golding] analysis.” (Internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997). Arguments first presented in a reply brief impair the opposing party’s opportunity to reply in writing. Accordingly, we decline to review this claim.

m

The defendant next claims that the court improperly admitted into evidence a photographic array by which Singh had identified Rios as the man who had hit him on the back of the head with a pipe. He argues that this evidence was unrelated to the charged crimes. We disagree.

The following additional facts are relevant to our resolution of this issue. During Singh’s testimony, the prosecutor showed him state’s exhibit seventeen, which consisted of a photographic array containing eight photographs. Singh testified that the Stamford police had shown him that photographic array, from which he had selected and circled the photograph depicting the man involved in the robbery who had wielded the pipe. He stated that he did not see the man he had picked out of the array in the trial courtroom.

The prosecutor then offered the array as a full exhibit. The defendant objected to its admission as a full exhibit on the basis of relevance. He claimed that the photographic array would be relevant at the trial of Rios, who had been identified as wielding the pipe, but that it was not relevant at the defendant’s trial. The prosecutor responded that the case involved two individuals robbing the victim and that testimony about that second individual was relevant. The court, finding, inter alia, that the photographic array was relevant, overruled the defendant’s objection and admitted state’s exhibit seventeen as a full exhibit.

As a preliminary matter, we set forth the applicable standard of review. “Section 4-1 of the Connecticut Code of Evidence provides that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Relevant evidence maybe excluded, however, if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury .... Conn. Code Evid. § 4-3. Unfair prejudice exists when the evidence tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence. . . .

“[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Harris, 277 Conn. 378, 388-89, 890 A.2d 559 (2006).

The court did not abuse its discretion in admitting the photographic array into evidence. Evidence of Singh’s identification of the defendant’s coconspirator was relevant to the issue of whether the defendant conspired to commit the robbery. “To establish the crime of conspiracy under § 53a-48, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy.” (Emphasis added; internal quotation marks omitted.) State v. Patterson, supra, 276 Conn. 461-62. Singh’s identification of Rios was germane to the issue of whether a coconspirator existed, and the identification allowed the court to find, in conjunction with Lupinacci’s testimony, that the photograph identified by Singh depicted Rios and that Rios was one of the two people participating in the robbery. This identification, in conjunction with the defendant’s statement to the police that he was with Rios when Rios attacked Singh, and the defendant’s inculpatory statements, made it more probable that Rios was involved in the robbery, that the defendant was the second participant in the robbery with Rios and, therefore, that the defendant conspired with Rios to commit the robbery. Accordingly, evidence of Singh’s identification of Rios was relevant to the issue of whether the defendant conspired to commit the robbery.

The photographic array was also relevant to the robbery charges. In both robbery counts, the state alleged in the long form information the participation of a second person present in the convenience store. The counts specified that the assault of Singh with a dangerous instrument occurred at the hands of another participant in the robbery. The photographic array, and Singh’s testimony regarding it, was relevant to establishing the presence and participation of Rios as the second robber who wielded the pipe.

For the foregoing reasons, the photographic array tended to show that the defendant robbed the convenience store and conspired with Rios to do so and, thus, had some relevance. We do not conclude that the probative value was outweighed by unfair prejudice. “All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Michael G., 107 Conn. App. 562, 574, 945 A.2d 1062, cert. denied, 287 Conn. 924, 951 A.2d 574 (2008). Accordingly, the court did not abuse its discretion when it admitted the photographic array into evidence as a full exhibit.

IV

The defendant next claims that there must be a showing that he knowingly, intelligently and voluntarily waived his right to be tried by a finder of fact who was unaware of the part B information and that the court’s canvass of him was insufficient to establish such a waiver. This claim is not reviewable under the circumstances present in this case. The defendant failed to preserve his claim, as he individually and through trial counsel did not in any way object to the court’s presiding over his case despite its disclosure of its inadvertent knowledge of the part B information. The defendant seeks review under State v. Golding, supra, 213 Conn. 239-40. We decline to review this claim under Golding because the defendant’s right to an information in two parts is based on Practice Book § 37-11 and, as such, is not a constitutional right. See State v. Marcisz, 99 Conn. App. 31, 38-39, 913 A.2d 436 (defendant’s claim based on Practice Book §§ 36-14 and 37-11 that court’s purported knowledge of part B information prior to rendering decision violated his rights to due process and fair trial fails under second prong of Golding), cert. denied, 281 Conn. 922, 918 A.2d 273 (2007). We therefore conclude that the defendant has failed to satisfy the second prong of Golding, as the claim alleging the violation of a right under the rules of practice is not of constitutional magnitude.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged by way of long form information with two counts of robbery in the first degree in violation of § 53a-134 (a) (1) and (3). The court merged the defendant’s robbery conviction under § 53a-134 (a) (3) with his conviction under § 53a-134 (a) (1).

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant challenges the admissibility of these statements. We discuss this claim in part n. We note that “a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” State v. Smith, 73 Conn. App. 173, 180, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002); see also State v. Rodriguez, 39 Conn. App. 579, 592-93, 665 A.2d 1357 (1995) (reviewing all evidence in addressing sufficiency of evidence claim, including improperly admitted evidence, after ordering remand because trial court failed to suppress evidence), rev’d on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996).

       The defendant also claims a violation of his state constitutional rights. He, however, has provided no independent analysis under the state constitution, as required under State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).

       The defendant’s custodial status is not relevant to the review of a claim under Doyle. “Doyle applies whenever [warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] have been given regardless of an arrest or custody.” (Internal quotation marks omitted.) State v. Bell, 283 Conn. 748, 765, 931 A.2d 198 (2007).

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       On the first day of trial before the evidentiary phase of the proceedings had begun, the prosecutor inquired whether the defendant needed to be put to plea again on the amended information. The court looked through the file to find the amended information and to check the defendant’s plea status. The court stated, inter alia, that the defendant had been put to plea on the amended information, including the part B information. The prosecutor approached the bench, and the court went off the record. Upon returning on the record, the court stated: “[T]he court had looked through the clerk’s file. In doing so, it came across the amended information filed by the state on January 11 of [2006], to which the defendant has pleaded not guilty, as the operative information. The clerk’s file also contained a part B information [that] accuses the defendant of being a persistent dangerous felony offender.
      “The court took a long recess to allow counsel, number one, to discuss the issue with [the defendant and] also to research the issue a little bit. And there is a case [State v. Fitzgerald, 257 Conn. 106, 112, 777 A.2d 580 (2001)] . . . wherein on the issue that we’re discussing, it reversed a prior decision of the Appellate Court [State v. Fitzgerald, 54 Conn. App. 258, 266, 737 A.2d 922 (1999), rev’d, 257 Conn. 106, 777 A.2d 580 (2001)]. I’ve had a chance to discuss that decision with counsel, and I believe that counsel has had a chance to discuss the issue with his client.” The prosecutor noted that during discussions conducted off the record, the defense attorney seemed to indicate that the defendant was waiving any objection to the court’s hearing the case. The prosecutor asked the court to inquire of the defendant on the record whether he was waiving any claim of judicial bias. Defense counsel stated: “With regard to the part B information, I have discussed the issue with my client. My client is not raising an objection. He is not asking for the court to recuse itself and wishes to proceed with the trial and very much wants his day in court.”
      The court then canvassed the defendant as follows:
      “The Court: . . . You understand that because I’ve looked at part B of the information, the claim could be made that the court may somehow be biased or prejudiced toward hearing your case because it knows of a part B of the information. And in electing to proceed at trial with me, the court who’s presently here, you understand that you would be consenting to me hearing the case and giving up a claim to recuse based upon some sort of bias or prejudice before I hear the facts. Do you understand that?
      “[The Defendant]: Yes, sir.
      “The Court: All right. And has your lawyer discussed that with you?
      “[The Defendant]: Yes, sir.
      “The Court: And have you had enough time to discuss it with him?
      “[The Defendant]: Yes, sir.
      “The Court: All right. And do you consent to me hearing this case?
      “[The Defendant]: Yes, sir.”

       Practice Book § 37-11 provides: “Prior to the time the defendant enters a guilty plea or, if the defendant pleads not guilty, prior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. The clerk shall enter on the docket the time and place of the giving of such notification and, where necessary, shall include entry thereof in the judgment file.”

       We note, as did the Supreme Court in State v. Fitzgerald, 257 Conn. 106, 117, 777 A.2d 580 (2001), that “[Practice Book] § 37-11 clearly prohibits the judicial authority from being made aware of the existence of a part B information, thereby assuring that the sentencing enhancement provisions normally contained in a part B information do not unduly influence a fact finder’s disposition.”


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    ANDRE M. PIERCE v. THERESA C. LANTZ, COMMISSIONER OF CORRECTION
    (AC 29411)
    McLachlan, Gruendel and Pellegrino, Js.

      Argued December 5, 2008
    officially released March 10, 2009

      Andre M. Pierce, pro se, the appellant (plaintiff).

      Neil Parille, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Matthew B. Beizer, assistant attorney general, for the appellee (defendant).
   Opinion

PELLEGRINO, J.

The plaintiff, Andre M. Pierce, an inmate in a state correctional institution, appeals to this court after his administrative appeal, brought in accordance with the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., challenging “regulations” of the department of correction (department) was dismissed in Superior Court. The plaintiff complained in his “petition,” filed with the department, that certain department regulations involving censorship of mail, compact discs and cassette tapes, as well as a 30 percent markup on compact discs and cassette tapes sold at the institution’s commissary were not properly promulgated regulations and, therefore, were unenforceable. It is the claim of the defendant commissioner of correction that the censorship restrictions concerning the mail, compact discs and cassette tapes, as well as the commissary markups were directives or rules and not regulations as defined under the UAPA and, therefore, that the plaintiffs claim was properly dismissed by the trial court for lack of subject matter jurisdiction. We agree with the defendant and affirm the judgment of the trial court dismissing the plaintiffs claim.

The court’s memorandum of decision recites the following facts and procedural history. The plaintiff, while incarcerated, filed a “declaratory rule petition” with the defendant, pursuant to General Statutes § 4-174. In his petition, he challenged the validity of three department “regulations” because they were not properly promulgated in accordance with the UAPA. The plaintiff claims that he received no response to his petition, so he brought an administrative appeal in the Superior Court pursuant to General Statutes § 4-183 et seq. The defendant moved to dismiss the appeal, arguing that the “regulations” that the plaintiff challenged were in fact directives, not regulations, and, therefore, were not covered by the UAPA. The court agreed with the defendant and granted the motion to dismiss. The court ruled that the defendant is empowered to create directives for the operation of the correctional institution that she administers without having to promulgate regulations under the UAPA. This appeal followed.

On appeal, the plaintiff claims that the court abused its discretion when it dismissed his petition and found that certain prison directives were not “regulations” and, therefore, not required to adhere to the requirements of the UAPA. Specifically, the plaintiff argues that the prison rules restricting him from receiving publications depicting sexual activity between heterosexual adults and from receiving compact discs and cassette tapes with parental advisory stickers, as well as charging a 30 percent markup on compact disc pin-chases made at the prison commissary, were regulations and, therefore, should be governed by the UAPA. We disagree.

“The standard of review of a challenge to a court’s granting of a motion to dismiss is well established. In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary. A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn. App. 323, 335-36, 958 A.2d 1283 (2008).

The UAPA defines the term “regulation” as “each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) declaratory rulings issued pursuant to [General Statutes §] 4-176 or (C) intra-agency or interagency memoranda . . . .” General Statutes § 4-166 (13). “The criteria that determine whether administrative action is a regulation are neither linguistic nor formalistic. It is not conclusive that an agency has, or has not, denominated its action a regulation or that it has, or has not, promulgated it procedurally in the fashion that would be required of a regulation. . . . The test is, rather, whether a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future. . . . Implicit in this formulation is the recognition that a regulation must be a rule of sufficient generality to impinge substantially on others who will deal with the agency at a future time.” (Citations omitted; internal quotation marks omitted.) Maloney v. Pac, 183 Conn. 313, 325-26, 439 A.2d 349 (1981).

The plaintiff argues that because the restrictions on his receiving sexually explicit publications, compact discs and cassette tapes with parental advisory stickers, as well as the 30 percent markup on compact disc purchases at the institution’s commissary, have “a substantial impact on the rights and obligations of parties who may appear before the agency in the future”; Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979); the restrictions are regulations. In further support of his argument, the plaintiff cites Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), claiming that the United States Supreme Court refers to the censorship of mail as a regulation. He argues, therefore, that because mail censorship is classified as a “regulation” in Turner, that automatically makes it a “regulation” in the present matter. The plaintiffs reliance on Turner, however, is misplaced.

In Turner, the United States Supreme Court was not faced with determining if an administrative directive was a rule or regulation but, rather, it was faced with the issue of determining what level of scrutiny to apply when determining the constitutionality of a regulation. Id., 81. As Turner provides no guidance in determining whether an administrative directive is a rule versus a regulation, we reject the plaintiffs reliance on it. “Whether administrative action is a regulation does not depend on the label the agency [or a court] attaches to it .... In deciding whether administrative action amounted to a regulation, a reviewing court must look to what the agency in fact did in a particular case and how it did it.” (Citations omitted.) Eagle Hill Corp. v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 76, 477 A.2d 660 (1984).

In undertaking our plenary review, we start by reviewing the department regulations already promulgated. Section 18-81-1 of the Regulations of Connecticut State Agencies, titled “Commissioner of correction and deputies,” provides in relevant part: “The Commissioner is responsible for the administration, coordination and control of the operations of the Department of Correction and for the overall supervision and direction of all institutions, facilities and activities of the Department . . . .” Regs., Conn. State Agencies § 18-81-1 (a). Section 18-81-32 of the Regulations of Connecticut State Agencies, titled “Incoming general correspondence,” provides in relevant part: “All incoming general correspondence shall be opened and inspected [and] may be rejected if such review discloses correspondence or materials) which would reasonably jeopardize legitimate penological interests, including, but not limited to, materials) which contain or concern . . . (8) Threats to the safety or security of staff, other inmates, or the public, facility order or discipline, or rehabilitation. (9) Sexually explicit materials) which meet the standards and review procedures set forth in Subsection (a) of Section 18-81-39 .... (10) Any other general correspondence, rejection of which is reasonably related to a legitimate penological interest. . . .” Regs., Conn. State Agencies § 18-81-32 (a). Section 18-81-39 (a) of the Regulations of Connecticut State Agencies, titled “Procedures for Review of Publications and Sexually Explicit Materials,” provides in relevant part: “The Unit Administrator may reject a publication only if it is determined to be detrimental to the security, good order, or discipline of the facility or if it might facilitate criminal activity. . . . Publications which may be rejected by a Unit Administrator include but are not limited to publications which meet one of the following criteria ... (5) It depicts, describes or encourages activities which may lead to the use of physical violence or group disruption. (6) It encourages or instructs in the commission of criminal activity. (7) It is sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the facility, or facilitates criminal activity. . . .”

The plaintiff argues that the restrictions that prevent his receipt of sexually explicit material and compact discs with parental advisory stickers are regulations that were not properly promulgated and, therefore, are in violation of the UAPA. Our review, however, leads us to conclude that the restrictions are administrative directives, which interpret and apply the regulations that already have been promulgated to govern the department. See Regs., Conn. State Agencies § 18-81-1 et seq. General Statutes § 18-81 empowers the commissioner to create such administrative directives for the administration and operation of the correctional institutions. Administrative directives are created for the internal management of the correctional institutions and are not regulations that are subject to the TJAPA requirements. See General Statutes § 4-166 (13) (A).

Moreover, “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. . . . The institutional consideration of internal security in the correction facilities themselves is essential to all other correction goals. . . . Because the realities of running a correctional institution are complex and difficult, the courts give wide-ranging deference to the decisions of prison administrators in considering what is necessary and proper to preserve order and discipline.” (Citations omitted; internal quotation marks omitted.) State v. Walker, 35 Conn. App. 431, 435, 646 A.2d 209, cert. denied, 231 Conn. 916, 648 A.2d 159 (1994). Accordingly, pursuant to General Statutes § 18-81 and the regulations, it is within the authority of the commissioner to restrict any materials that may interfere with the order and discipline of the institutions that she governs, and the courts will give deference to the decisions made applying department regulations to specific institutions. Johnson v. Manson, 196 Conn. 309, 316 n.8, 493 A.2d 846 (1985) (“interpretation placed upon a statute or regulation by the one charged with its administration is entitled to weight in its construction” [internal quotation marks omitted]), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986). Therefore, the restrictions prohibiting the receipt of sexually explicit materials and compact discs with parental advisory stickers are administrative directives, and we conclude that the court properly granted the defendant’s motion to dismiss.

The plaintiffs argument that the 30 percent markup on compact discs purchased from the commissary is a regulation is also unavailing. In accordance with General Statutes § 18-88 (k), the commissioner has been given statutory authority to establish a commissary. As previously mentioned, General Statutes § 18-81 and the regulations provide the commissioner of correction with the authority to create administrative directives to administer and control the operations of the department. The commissioner has established as a properly promulgated administrative directive that “[m]ost merchandise sold in the commissary shall be marked up 30 percent . . . .” Administrative Directives Department of Correction, c. 3.8 (18) (December, 2005). General Statutes § 18-88 (k) not only anticipates and expects the commissary to generate a profit but also authorizes the commissioner to transfer a portion of the profit to the correctional general welfare fund. The courts, as mentioned, give wide ranging deference to the decisions of the commissioner in establishing guidelines for the order and discipline of the facilities that she governs. See State v. Walker, supra, 35 Conn. App. 435. We agree with the court that the directives of which the plaintiff complains were not regulations as defined by the UAPA and that the court did not have subject matter jurisdiction to consider the plaintiffs claim. The court properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       A court may take judicial notice of state regulations. Clark v. Mulcahy, 162 Conn. 332, 336 n.3, 294 A.2d 504 (1972) (judicial notice of state police department regulation); see also Squires v. Wolcott, 133 Conn. 449, 453, 52 A.2d 305 (1947) (judicial notice of state traffic commission regulation); Roden v. Connecticut Co., 113 Conn. 408, 415-16, 155 A. 721 (1931) (affirming decision of trial court to take judicial notice of public utilities commission regulation).

       Section 18-81-1 et seq. of the Regulations of Connecticut State Agencies, which includes §§ 18-81-1,18-81-32 and 18-81-39, pertain only to the correctional institutions and department of correction.

       General Statutes § 18-81 provides in relevant part: “The Commissioner of Correction shall administer, coordinate and control the operations of the department and shall be responsible for the overall supervision and direction of all institutions, facilities and activities of the department. The commissioner shall establish rules for the administrative practices ... of said institutions and facilities in accordance with recognized correctional standards. . . .”

       General Statutes § 18-88 (k) provides: “The Commissioner of Correction may establish, within the industrial fund, commissaries to be operated for the purpose of sale to inmates of items authorized by the commissioner. The cost of the commissary operation shall be charged to the fund and the proceeds of such sales shall be deposited in the fund. The commissioner is authorized to transfer a portion of the profits from the operation of the commissaries to the Correctional General Welfare Fund established under section 4-57a.”

       “It is often said that courts take judicial notice of such things as are of common knowledge. These may be matters which come to the knowledge of men generally in the course of the ordinary experience of life, and are therefore in the mind of the trier, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestionable demonstration.” Roden v. Connecticut Co., 113 Conn. 408, 415, 155 A. 721 (1931). The administrative directives of the department are easily accessible both in print form and on the Internet, and, accordingly, they are capable of ready and unquestionable demonstration, and we will take judicial notice of them.

       See footnote 4.


author: DiPENTIMA, J.

text:
    MAUREEN T. WALLBEOFF v. JAMES L. WALLBEOFF III
    (AC 29201)
    DiPentima, Gruendel and West, Js.

      Argued October 23, 2008
    officially released March 10, 2009

      William H. Cashman, for the appellant (plaintiff).

      Daniel H. Kennedy III, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

In this appeal from the judgment dissolving the parties’ marriage, we examine the parameters of the appellant’s burden to create an adequate record for our review. The plaintiff, Maureen T. Wall-beoff, appeals from the judgment of the trial court solely as to the financial orders, claiming that the court abused its discretion by improperly deviating from the statutory child support guidelines when it issued financial orders without first making the specific factual findings required by § 46b-215a-3 (a) of the Regulations of Connecticut State Agencies. See also General Statutes § 46b-215a (establishing guidelines). She also claims that it was an abuse of discretion for the court not to have imposed any of the sanctions available under Practice Book § 13-14 on the defendant, James L. Wall-beoff III, for his failure to produce subpoenaed documents concerning a trust from which he and the parties’ child had inherited $102,000. We agree with the plaintiffs’ first claim, reverse the judgment solely as to the financial orders and remand the case for a new trial on all of the financial issues. We decline to address the plaintiffs second claim.

The court found the following facts. The parties were married on September 23, 1990, in Connecticut. They are the parents of one minor child. During most of the marriage, the plaintiff earned more money than the defendant and did almost all of the household tasks. Although the defendant became unemployed in March, 2007, the court found his earning capacity as a woodworker to be $33,000 per year. In the five years preceding the dissolution, the defendant became disengaged from his marriage and family and primarily caused the breakdown of the marriage. Also during the marriage, the defendant and the parties’ child collectively inherited, as beneficiaries of a trust, approximately $102,000, all of which the defendant spent over two years.

The plaintiff initiated an action to dissolve her marriage to the defendant in February, 2006. Both parties requested an order of alimony and child support. After a limited contested trial, the court issued its memorandum of decision on August 10, 2007, dissolving the marriage, incorporating the parties’ fifty-fifty shared parenting agreement and ordering that their child reside primarily with the plaintiff. The court also ordered that the plaintiff pay $71 per week in child support to the defendant and $200 per week in alimony to him for six years. Neither party disputes that these amounts deviate from the child support guidelines, and both submitted worksheets on the basis of those guidelines to the court. See Regs., Conn. State Agencies § 46b-215a-5b. The record further shows, and the parties do not dispute, that the court made these deviations without first (1) finding the presumptive amounts that would have been required under the guidelines absent any deviation, (2) making a specific finding on the record that such amount would be inequitable or inappropriate in this case and (3) making a factual finding to justify the variance. See Regs., Conn. State Agencies § 46b-215a-3(a).

Because the plaintiffs first claim on appeal challenges the factual bases of the financial orders rendered by the court at the time it dissolved the marriage, we review that claim under the abuse of discretion standard. “In fashioning its financial orders, the court has broad discretion, and [j judicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Farrell-Williams v. Williams, 99 Conn. App. 453, 455, 913 A.2d 1136 (2007).

The plaintiff first claims that the court abused its discretion by deviating from the guidelines without first making the requisite factual findings. Although the defendant does not dispute that the court failed to make these findings, he argues that this court must decline to review the financial orders because when a trial court does not state the basis of a decision and the appellant does not move for an articulation, the appellant fails to fulfil] his or her responsibility to create a reviewable record. Under the particular facts of this case, we agree with the plaintiff.

“Our rules regarding the need to seek an articulation of the factual basis of the trial court’s decision are well settled. It is the responsibility of the appellant to move for an articulation in order to clarify the basis of the trial court’s decision should such clarification be necessary for effective appellate review of the issue on appeal.” Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003). “It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision .... In the absence of any such attempts, we decline to review this issue.” (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 388-89, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006); see also Practice Book §§ 61-10 and 66-5 (appellant responsible for clarifying record for issue on appeal; articulation proper to clarify factual basis of court’s decision).

In reviewing the plaintiffs claim, we find it of particular significance that what she chiefly alleges to be improper is the absence in the court’s decision of any of the specific findings of fact that the court was required to make before entering its financial orders. We agree with the defendant that our rules normally place the burden of moving for an articulation on the appellant “should such clarification be necessary for effective appellate review of the issue on appeal.” (Emphasis added.) Zahringer v. Zahringer, supra, 262 Conn. 370. The record in the present case, however, is clear and unambiguous as to the absence of the findings that § 46b-215a-3 (a) required the court to make and, thus, is adequate for our review of the issue on appeal.

Indeed, our Supreme Court has expressly held that with respect to a related regulation requiring identical findings of fact in cases involving child support arrearage, it is an abuse of discretion for a court to deviate from the guidelines without making these findings. Unkelbach v. McNary, 244 Conn. 350, 367, 710 A.2d 717 (1998). As the court explained: “Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies employs language identical to the language of § 46b-215a-5 (a) in creating a rebuttable presumption that the amount of child support calculated through application of the guidelines is the amount that should be ordered. Both sections require that, in order to rebut the regulatory presumptions, the trial court make a ‘specific finding on the record that the application of [the] guidelines would be inequitable or inappropriate in a particular case’ and ‘state the amount of support that would have been required under the guidelines and include a justification for the variance.’ ” Id., 368, citing Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994). This language “requires the trial court ‘first [to] determine on the record the amount of support indicated by the guidelines schedule’ before determining whether to deviate from that amount. . . . [Our Supreme Court] conclude [d] that the identical language . . . must be interpreted in the same manner here.” (Citation omitted.) Unkelbach v. McNary, supra, 369.

In both Unkelbach and Favrow, therefore, our Supreme Court did not place the burden to ensure a proper record for review of financial orders involving the child support guidelines solely on the appellant but also on the court itself. “Requiring the trial court to determine the amount of the arrearage payment to be ordered pursuant to the guidelines before deciding whether and to what extent to deviate from the guidelines is appropriate because it will facilitate appellate review in those cases in which the trial court finds that a deviation is justified and will enable an appellate court to make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.” (Emphasis added; internal quotation marks omitted.) Id., 370. In Unkelbach, “the trial court did not calculate the presumptively correct support order pursuant to the guidelines, did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances, and did not include a justification for the variance. . . . [Our Supreme Court concluded] therefore, that the trial court’s order . . . constituted an abuse of discretion.” Id.

The record clearly shows that the court in the present case also deviated from the guidelines, did not calculate the presumptively correct support order pursuant to the guidelines, did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances and did not include a justification for the variance. We conclude, therefore, that the court’s order constituted an abuse of discretion.

The plaintiff next claims that it was also an abuse of discretion for the court not to have imposed any of the sanctions available under Practice Book § 13-14 (a) on the defendant, despite having found that he had failed to produce subpoenaed documents concerning a trust from which he and the parties’ child had inherited $ 102,000. We need not address this claim, as the plaintiff did not move for sanctions at trial. Practice Book § 13-14 (a) provides in relevant part that “the judicial authority may, on motion, make such order as the ends of justice require.” (Emphasis added.) “[Except in exceptional circumstances, this court does not review claims that are not raised in the trial court.” Quickpower International Corp. v. Danbury, 69 Conn. App. 756, 759, 796 A.2d 622 (2002).

The judgment is reversed solely as to the financial orders, and the case remanded for a new trial on all financial issues.

In this opinion the other judges concurred.

       Section 46b-215a-3 (a) provides in relevant part: “The current support, health care coverage contribution, and child care contribution amounts calculated under section 46b-215a-2b of the Regulations of Connecticut State Agencies, and the amount of the arrearage payment calculated under section 46b-215a-4a of the Regulations of Connecticut State Agencies, are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. An agreement of the parties may be sufficient to rebut the presumption when such finding cites one or more deviation criteria, which may include other equitable factors, to support such agreement. Any such finding shall state the amount that would have been required under such sections and include a factual finding to justify the variance. . . .”

       The parties agree that their child was bom on April, 27,1994. The court’s statement of her birth year as 1990 in its memorandum of decision is evidently a scrivener’s error.

       The defendant argues, in the alternative, that even if the court improperly failed to make the requisite factual findings, “any error on the part of the trial court is harmless” because the financial orders on remand would “likely” be the same. We do not agree. The parties do not dispute that the award deviated from the guidelines, and it would be premature for this court to determine whether that departure was lawful absent those findings.


author: PER CURIAM.

text:
    ABDUL MUKHTAAR v. COMMISSIONER OF CORRECTION
    (AC 29469)
    Bishop, DiPentima and Gruendel, Js.
    Argued January 8
    officially released March 10, 2009

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Abdul Mukhtaar, 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. We dismiss the petitioner’s appeal.

The petitioner was involved in a shooting incident on February 14, 1996. He thereafter was charged and, following a jury trial, convicted of murder in violation of General Statutes § 53a-54a. The trial court sentenced the petitioner to a total effective term of fifty years incarceration. The petitioner appealed directly from that judgment of conviction, which our Supreme Court affirmed. See State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000).

On December 21, 2006, the petitioner filed a two count amended petition for a writ of habeas corpus. Count one alleged ineffective assistance of trial counsel. Specifically, the petitioner alleged that trial counsel rendered deficient performance in (1) advising him not to testify at trial and (2) “not seeking additional questioning or investigation into the possibility of juror bias.” In count two, the petitioner alleged juror bias.

A habeas trial followed. By memorandum of decision filed October 26, 2007, the court concluded that the petitioner’s claims concerning alleged juror bias were raised before, and addressed by, our Supreme Court on direct appeal. See State v. Mukhtaar, supra, 253 Conn. 292-98. We agree. The court further credited the testimony of James Swaine, who, testifying as an expert witness for the petitioner, answered affirmatively to the question of whether “each of the jurors [who] rendered a decision in this case indicated that there was nothing that had occurred in the courtroom, outside of the courthouse, anywhere in the area that would have affected their ability to give a fair verdict.”

As to the claim of deficient performance in advising the petitioner not to testify, the court credited the testimony of Gerald Bodell, the petitioner’s trial counsel. Bodell testified that he informed the petitioner that ultimately, it was the petitioner’s decision whether to testify. Bodell explained that in investigating the case against the petitioner, he spoke with the petitioner’s sister in New Jersey to determine whether she would support his alibi that he was in New Jersey with her at the time of the shooting. Bodell testified that the sister did not confirm the petitioner’s alibi. Bodell further stated that he knew from his review of the records that the petitioner had lied to the police earlier in the case. Bodell also expressed his concern that the petitioner possibly could perjure himself were he to testify as to his alleged alibi. In addition, Bodell testified that he informed the petitioner of the potential pitfalls of cross-examination, to which he would be subjected if he testified. Bodell testified that those considerations led him to advise the petitioner not to take the witness stand. On its review of the evidence before it, including the testimony of the petitioner and Bodell, the court concluded that the petitioner failed to satisfy his burden of proving deficient performance on the part of trial counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court subsequently denied the petition for certification to appeal, and this appeal followed.

Before we may reach the merits of the petitioner’s claim that the court improperly decided the issues raised in his petition for a writ of habeas corpus, he first must establish that the court abused its discretion in denying the petition for certification to appeal. See Sadler v. Commissioner of Correction, 90 Conn. App. 702, 703, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). To do so, a petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). After a careful review of the record and briefs, we conclude that the petitioner has not met that substantial burden. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 616.

The appeal is dismissed.


text:
    LARRY MCCOWN v. COMMISSIONER OF CORRECTION
    (AC 28691)
    McLachlan, Lavine and Mihalakos, Js.
    Argued November 13, 2008
    officially released March 10, 2009

      Kathryn Steadman, special public defender, for the appellant (petitioner).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Larry McCown, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly failed to conclude that his trial counsel rendered ineffective assistance of counsel, under the totality of the circumstances, by (1) failing to ensure that the petitioner’s witness at a suppression hearing obeyed a sequestration order, (2) entering into a stipulation without his knowledge concerning General Statutes (Rev. to 1993) § 29-38, (3) failing to object to an erroneous instruction by the trial court regarding the possession element of § 29-38 and (4) failing to object to statements made by the prosecutor during rebuttal closing arguments. We affirm the judgment of the habeas court.

The jury found the petitioner guilty of various criminal offenses. See State v. McCown, 68 Conn. App. 815, 817-19, 793 A.2d 281, cert. denied, 260 Conn. 927, 798 A.2d 972 (2002). The petitioner received a total effective sentence of sixty-five years incarceration. The conviction was affirmed on direct appeal. See id. Following his direct appeal, the petitioner brought a petition for a writ of habeas corpus, which he subsequently amended. In his third amended petition, the petitioner set forth three counts: ineffective assistance of trial counsel, ineffective assistance of appellate counsel and prosecutorial impropriety. After a hearing, the habeas court denied the petition in a detailed memorandum of decision. The court subsequently granted the petition for certification to appeal. This appeal followed. Only the claims concerning the effectiveness of counsel are at issue.

Our standard of review is well settled. “Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by [an appellate] court unfettered by the clearly erroneous standard. ... To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. ... A reasonable probability is one which is sufficient to undermine confidence in the result.” (Citations omitted; emphasis in original.) Vasquez v. Commissioner of Correction, 111 Conn. App. 282, 285-86, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008). With the foregoing in mind, we now turn to the petitioner’s specific claims.

On appeal, the petitioner concedes that although each claimed error alone would not constitute deficient performance of counsel, the combined effect of all four claimed errors denied him effective assistance of counsel. The petitioner first claims that he was denied effective assistance by his counsel’s failure to ensure that his mother obeyed the trial court’s sequestration order. His counsel’s failure to do so resulted in the court’s refusal to permit her to testify at the suppression hearing. The only claim raised in the petitioner’s amended petition relative to the suppression hearing, however, was that his trial counsel failed to call the petitioner to testify. Because the petitioner’s claim regarding his mother’s inability to testify at the suppression hearing was not raised at the habeas proceeding, the court did not rule on it. “We are not bound to consider an issue unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [T]o review the petitioner’s [claim] now would amount to an ambuscade of the [habeas court].” (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 104 Conn. App. 144, 149, 931 A.2d 963, cert. denied, 284 Conn. 937, 937 A.2d 693 (2007). We will not address this claim.

The petitioner next claims that his trial counsel was ineffective for entering into a stipulation that the petitioner did not have a permit for a pistol or revolver and for failing to object to an inaccurate jury instruction on the element of possession. The petitioner claims that these two errors together resulted in a reasonable probability that the jury interpreted the stipulation as an admission by the petitioner that he had a weapon for which he did not have a permit. The petitioner argues that the stipulation combined with his trial counsel’s failure to object to the inaccurate jury instruction caused the jury to conclude that the petitioner physically possessed a gun and that there was a reasonable probability that he was one of the two shooters in the underlying criminal matter. We do not agree.

The habeas court, in concluding that the petitioner’s claim was meritless, determined that the trial court stated that the stipulation applied only to the permit element. The habeas court further found that the trial court had properly articulated each element of the crime and that each element had to be proven beyond a reasonable doubt. Additionally, the habeas court found that trial counsel’s failure to object to the incorrect jury charge was a strategic decision. The petitioner failed to show that the outcome of the decision would have been different but for the incorrect jury charge. He thus failed the second prong of Strickland. We agree with the habeas corut’s conclusion.

The petitioner’s final claim is that his trial counsel was ineffective for failing to object to the prosecutor’s misstatement during rebuttal closing argument. During rebuttal closing argument, the prosecutor stated that the petitioner admitted in his statement to the police to having fired gunshots. The petitioner, however, never made such a statement. The petitioner now argues that the failure of his trial counsel to object to the prosecutor’s incorrect statement caused prejudice. At the habeas proceeding, however, trial counsel testified that he did not recall hearing the prosecutor make such a statement and, further, that such a statement would have been harmful to the state, not to the petitioner. Trial counsel testified that it would have been harmful to the state, as it was a clear misstatement of the evidence and could cause the jury, upon realizing the mistake, to wonder if other statements the prosecutor made had credibility problems. The habeas court found that the performance prong did not have to be resolved, as the petitioner failed to prove the prejudice prong. During the course of the criminal trial, the petitioner’s taped statement to the police was played for the jury, and, while deliberating, the jury had a transcript of the taped statement that the petitioner had provided to the police. Additionally, the jurors had been instructed that it was their recollection of the evidence that controlled as they were determining the facts and that closing arguments were not to be considered as evidence. The habeas court, therefore, found that there was no prejudice to the petitioner.

After carefully reviewing the record and briefs, we agree with the court’s thoughtful and thorough memorandum of decision. The petitioner has failed to make a substantial showing that the assistance he had received from counsel fell below the objective standard of reasonableness and that a reasonable probability existed that, but for counsel’s ineffective representation, the outcome would have been different. We conclude, therefore, that the court did not improperly conclude that there was no deficient performance on the part of trial counsel or any prejudice to the petitioner.

The judgment is affirmed.

       General Statutes (Rev. to 1993) § 29-38 (a) provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

       Specifically, the petitioner was convicted of murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, and possession of a weapon in a motor vehicle in violation of § 29-38.

       The stipulation was entered into regarding solely the permit element of § 29-38. See footnote 1.

       During jury deliberations, the jury sent an inquiry to the court: “[D]oes weapons in a motor vehicle mean the [petitioner] actually had a weapon on him, does it mean that he was merely aware of the weapon somewhere in the car which he occupied?” The trial court inaccurately responded that “for the [petitioner] to knowingly have possession of a pistol or revolver in a motor vehicle, ‘he had [to have] it either in his hand or on his person.’ ” See State v. Mebane, 17 Conn. App. 243, 246, 551 A.2d 1268 (“The statute is not concerned with possession or ownership of a weapon, but rather aims to penalize those who know that there is a weapon inside a motor vehicle. To read the requirement of possession into the statute would unnecessarily limit the scope of the statute.”), cert. denied, 210 Conn. 811, 556 A.2d 609, cert. denied, 492 U.S. 919, 109 S. Ct. 3245, 106 L. Ed. 2d 591 (1989). The habeas court noted that this instruction made it more difficult for the jury to determine whether the petitioner was guilty of the offense.


author: HARPER, J.

text:
    ALISE PELLOW v. STEVEN PELLOW
    (AC 28904)
    Harper, Beach and Pellegrino, Js.

      Argued October 14, 2008
    officially released March 10, 2009

      Thomas C. C. Sargent, for the appellant (defendant).

      Donald F. Reid, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant, Steven Pellow, appeals from the judgment rendered by the trial court dissolving his marriage to the plaintiff, Alise Pellow. On appeal, the defendant claims that the court improperly (1) made a factual finding concerning the plaintiffs disability, (2) made financial orders under General Statutes §§ 46b-81 and 46b-82 that were excessive, (3) awarded child support and (4) ordered a property division of the marital home. We affirm in part and reverse in part the judgment of the trial court.

The parties were married on May 18, 2000. The court filed a memorandum of decision on May 30, 2007, and dissolved the parties’ marriage. At the time of dissolution, the parties had no children bom of the marriage. Nonetheless, the plaintiff became the legal guardian of the defendant’s daughter from a previous marriage. The defendant’s daughter was seventeen years of age at the time of the dissolution. The court found that the marriage had broken down irretrievably as a result of the defendant’s extramarital relationship in China and, without an express finding as to the parties’ earning capacity or income, entered various financial orders. In relevant part, it ordered the defendant to pay to the plaintiff $175 per week in child support for the defendant’s biological daughter until she reached nineteen years of age and $4500 per month in periodic alimony for ten years. The defendant also was ordered to convey the marital home, which was undergoing foreclosure proceedings, to the plaintiff. This appeal followed.

After the defendant timely filed two separate motions for articulation, the court articulated in response to the first motion that the foreclosure proceeds of the marital home were awarded to the plaintiff because she and the defendant’s three children from a previous marriage resided in the marital home. It also stated that “[t]he award of the marital home was not based on the gross or net income of either party. ” In response to the second motion for articulation, the court further articulated that the defendant’s gross income was $78,976 and his net income was $52,104. It also stated that it considered the needs of the defendant’s seventeen year old daughter in entering its child support order and the fact that the plaintiff is disabled. Additional facts will be set forth as necessary.

At the outset, “[t]he standard of review in family matters is well settled. An appellate court will not disturb a trial corut’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.) Elia v. Elia, 99 Conn. App. 829, 831, 916 A.2d 845 (2007).

I

The defendant claims that the court improperly based its financial orders on a finding that the plaintiff was “seriously disabled” and unable “to perform meaningful employment” because her disability was either unsupported by any medical evidence or contrary to other evidence produced at trial. We are unpersuaded.

Our standard of review concerning a trial court’s findings of fact is well established. “If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Further, a court’s inference of fact is not reversible unless the inference was arrived at unreasonably. . . . We note as well that [t]riers of fact must often rely on circumstantial evidence and draw inferences from it. . . . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed.” (Citations omitted; internal quotation marks omitted.) Levy, Miller, Maretz, LLC v. Vuoso, 70 Conn. App. 124, 130-31, 797 A.2d 574 (2002).

Despite the lack of an express finding in the court’s memorandum of decision on the plaintiffs disability, the court articulated that the plaintiff was seriously disabled and unable to perform meaningful employment. In the memorandum of decision, the court found that the defendant was aware of most of the plaintiffs serious medical and physical problems at the time of the marriage. The plaintiff testified at trial about her experience with the various health issues she faced prior to and during the marriage and how the various health issues affected her life and ability to work. The record reveals that the defendant, by his volition, did not cross-examine the plaintiff about her alleged health issues. Rather, the defendant waited until his closing remarks at trial to address the plaintiffs health allegations.

The defendant argues that in addition to the plaintiffs failure to offer proof, other than her testimony, of a disabling medical condition, the plaintiff contradicted her testimony with statements concerning her role as a domestic partner, parent and homemaker. Specifically, to support his argument, the defendant refers to the plaintiffs testimony that reflected her ability to take care of the children, to cook meals for the family and to be actively mobile for family activities and her declaration to the court that by 2003 she had recovered from her injuries and was feeling “fabulous.”

Nonetheless, on the basis of that conflicting testimony, the court, as the trier of fact, reasonably could have found that despite the plaintiffs feeling better in spring, 2003, she became ill again in October, 2003, by contracting Guillain-Barre syndrome after she was given a flu vaccine. In addition, it would not have been unreasonable for the court to have found the plaintiffs testimony credible, such that she delayed receiving treatment for her condition, until spring, 2004, so that she could care for the defendant while he had pneumonia. In light of the testimony and evidence presented at trial, we conclude that there was sufficient evidence before the court for it to make a factual finding that the plaintiff was disabled and unable to work.

II

Next, the defendant claims that the court abused its discretion by making excessive financial orders under §§ 46b-81 and 46b-82. Specifically, the defendant argues that the court’s financial orders would leave him destitute and with no means to support himself. We agree.

In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in § 46b-81 (division of marital property) and § 46b-82 (alimony). Both provisions require consideration of the parties’ “amount and sources of income” in determining the appropriate division of property and alimony. On the basis of the court’s memorandum of decision and its articulation in this case, it is clear that the corat considered the defendant’s gross income to be $78,976 when it fashioned the alimony award. The court’s financial orders totaled more than $70,000 annually, which consumes more than 90 percent of the defendant’s income as determined by the court. Therefore, we agree that the financial orders at issue were excessive. “Requiring that the defendant pay alimony that consumes his income and distributing the marital property in this manner offends the long settled principle that the defendant’s ability to pay is a material consideration in formulating financial awards.” Greco v. Greco, 275 Conn. 348, 361, 880 A.2d 872 (2005).

“Because the financial orders in an action for dissolution of marriage are of necessity interwoven and because the rendering of a judgment in an action for the dissolution of marriage is a carefully crafted mosaic”; (internal quotation marks omitted) Watrous v. Watrous, 108 Conn. App. 813, 819, 949 A.2d 557 (2008); each element of which may be dependent on the other, the third and fourth claims are necessarily affected by the court’s abuse of discretion in rendering judgment under §§ 46b-81 and 46b-82 in excess of the defendant’s income and without a finding as to the parties’ earning capacity. See Morris v. Morris, 262 Conn. 299, 307, 811 A.2d 1283 (2003) (“when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders” [internal quotation marks omitted]). Accordingly, we need not discuss the plaintiffs third claim concerning child support because we have concluded that the court’s financial orders were excessive. As to the defendant’s fourth claim concerning the distribution of the marital property on either illogical grounds or illegal factors, we conclude that the issue is moot in light of our conclusion that the court’s property division and financial orders were excessive.

The judgment is reversed with respect to all financial orders, including the distribution of marital property, and the case is remanded for further proceedings on those issues. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The testimony reflects that when the plaintiff met the defendant, she had her first spinal cord surgery, which left her with trauma induced fibromyalgia that resulted in symptoms of fatigue. It further reflects that after the marriage, as the parties prepared to move into a new home, the disks in the plaintiffs spine that were above her fusion fractured and collapsed, which led to a second extensive spinal surgery. The plaintiff was left with permanent esophageal damage after her esophagus collapsed during surgery. The testimony reflects that although the plaintiffs physical condition improved, she was left with limited mobility, numbness and some neurological problems. Later, the plaintiffs health deteriorated after she received a flu shot that left her with a neurological disorder, which requires treatment every other week. The testimony further reflects that the disorder requires that the plaintiff receive bed rest and, without treatment, causes her to be in a wheelchair.

       The defendant began his closing remarks in relevant part as follows: “It seems to me that the crux of the plaintiffs case is this health issue and the ability of the plaintiff to work. Your Honor, this plaintiff has come to this court every single time we’ve had a court hearing on her own steam. She does not appear to be disabled. She has actually applied for jobs during the course of the marriage. . . . The burden is on her to show that she’s disabled and unable to work, and she simply hasn’t shown that, Your Honor. ... I say she is able to work. She’s got drive and physical capacity. She shows absolutely no sign of being disabled, and she hasn’t offered the evidence to this court on which the court could conclude that she’s unable to work.”

       “The credibility of a witness is a matter for the [trier of fact] and, except in rare instances, there is no requirement that a witness’s testimony be corroborated by other evidence. . . . The absence of corroboration, of cotuse, may affect the trier’s decision as to the sufficiency of the evidence and the burden of proof . . . but this factor goes to the weight of the claimant’s case rather than to his or her ability to bring the case before the trier.” (Citations omitted; internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 647, 904 A.2d 149 (2006).

       See Webster’s Third New International Dictionary (defining GuillainBarre syndrome as “a neurologic disorder of unknown cause characterized by sensory disturbances in the extremities and slight to severe locomotor impairment”).

       General Statutes § 46b-81 (c) provides in relevant part that trial courts shall consider various factors when allocating marital property among the parties, including “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. ...” (Emphasis added.)
      General Statutes § 46b-82 (a) provides in relevant part that trial courts should determine the appropriate amount of alimony on the basis of “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .” (Emphasis added.)

       The plaintiff argues that the financial orders are not excessive in light of the defendant’s earning capacity, which she argues is approximately $300,000. Because the court did not make a finding as to the earning capacity of either party, we will not speculate on any supposed intention by the court not expressed in the memorandum of decision or articulations of that decision.

       At oral argument, the defendant stated that the court modified the alimony award to approximately $1000 per month, as of February, 2008, after the appeal was filed. Regardless of the reduction in the monthly alimony award, this opinion relates to the financial orders as entered at the time of the marriage dissolution. Accordingly, a finding that the court abused its discretion in the alimony award provides the defendant practical relief by requiring the plaintiff to reimburse him for any overpayments of alimony. See Weinstein v. Weinstein, 280 Conn. 764, 769 n.5, 911 A.2d 1077 (2007).

       In addition, the plaintiff argues that the defendant’s third claim on whether the court improperly awarded child support is moot because the child is no longer a minor. We disagree. Although the child is no longer a minor, a finding that the court abused its discretion in the support order provides the defendant practical relief by requiring the plaintiff to reimburse him for any overpayments of child support. See Weinstein v. Weinstein, 280 Conn. 764, 769 n.5, 911 A.2d 1077 (2007).

       See also Wilcox v. Ferraina, 100 Conn. App. 541, 547-48, 920 A.2d 316 (2007) (“Mootness is athreshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” [Internal quotation marks omitted.]).