author: PER CURIAM.

text:
    MARY J. WILLIAMS v. HARTFORD HOSPITAL ET AL.
    (AC 30781)
    Harper, Beach and Hennessy, Js.
    Argued May 18
    officially released July 20, 2010

      Richard J. Altschuler, with whom, on the brief, was Donald L. Altschuler, for the appellant (plaintiff).

      Frank H. Santoro, with whom were Edward W. Mayer, Jr., and, on the brief, Joyce A. Lagnese, for the appellee (defendant Richard Sheppard et al.).
   Opinion

PER CURIAM.

The plaintiff in this medical malpractice action, Mary J. Williams, appeals from the judgment of the trial court rendered in favor of the defendants Richard Sheppard and Hartford Anesthesiology Associates, Inc. The plaintiff claims that the court improperly granted the defendants’ motion to dismiss. We affirm the judgment of the trial court.

By amended complaint, the plaintiff asserted various claims sounding, inter alia, in medical malpractice against the defendants, arising out of a surgical procedure that she underwent in October, 2004. It is undisputed that Sheppard is a board certified anesthesiologist who is associated professionally with Hartford Anesthesiology Associates, Inc. When the plaintiff filed her complaint, she attached two opinion letters, one authored by a board certified neurologist, and, the other, authored by a board certified internist. Thereafter, the defendants filed a motion to dismiss on the ground that neither opinion letter was that of “a similar health care provider” as required by General Statutes § 52-190a (a). Opposing the motion to dismiss, the plaintiff filed affidavits by the neurologist and internist who had authored the opinion letters, as well as an affidavit by a board certified anesthesiologist. The court, viewing these affidavits as amendments to the opinion letters, declined to consider them in ruling on the motion to dismiss. Agreeing with the defendants that the opinion letters submitted did not satisfy § 52a-190a (a), the court granted the motion to dismiss and rendered judgment in favor of the defendants. This appeal followed.

The plaintiff claims that, in dismissing the action as to the defendants, the court improperly (1) concluded that an opinion letter authored by a health care provider with an area of specialization different from that of the defendants did not satisfy § 52-190a (a) and (2) declined to consider the affidavits submitted in opposition to the motion to dismiss. The issues raised on appeal are legal, rather than factual, in nature. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct. . . . Because there is no dispute regarding the basic material facts, this case presents an issue of law and our review is plenary.” (Citation omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244, 249, 969 A.2d 210 (2009).

Our resolution of the principal claims raised in the plaintiffs appeal is governed by this court’s recent decision in Bennett v. New Milford Hospital, Inc., 117 Conn. App. 535, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009), in which this court interpreted the requirement set forth in § 52-190a (a) that a plaintiffs complaint in a medical malpractice action contain “a written and signed opinion of a similar health care provider, as defined in [General Statutes §] 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ...” General Statutes § 52-190a (a). The court concluded: “[W]hen establishing the guidelines for the opinion letter, the legislature clearly and unambiguously referred to a ‘similar health care provider.’ By the plain language of the statutes, as to a defendant health care provider who is a physician, the similar health care provider contemplated in § 52-190a (a) is one defined in either subsection (b) or (c) of § 52-184c.” Bennett v. New Milford Hospital, Inc., supra, 548-49.

As noted previously, it is undisputed that Sheppard is a board certified specialist in the field of anesthesiology and that he is associated professionally with Hartford Anesthesiology Associates, Inc. In accordance with the holding in Bennett, an opinion letter from a similar health care provider must be authored by a health care provider who satisfies the criteria set forth in § 52-184c (c), which provides in relevant part: “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . . .” General Statutes § 52-184c (c). It is clear from the undisputed facts that neither opinion letter attached to the plaintiffs complaint was authored by a health care provider who satisfied these specific statutory criteria. Accordingly, we conclude that the court properly determined that the complaint failed to comply with § 52-190a (a) and properly dismissed the action as to the defendants. See General Statutes § 52-190a (c) (“[t]he failure to obtain and file the written opinion required by subsection [a] of this section shall be grounds for the dismissal of the action”); Rios v. CCMC Corp., 106 Conn. App. 810, 822, 943 A.2d 544 (2008).

The judgment is affirmed.

       The named defendant, Hartford Hospital, is not a party to this appeal. We therefore refer in this opinion to Sheppard and Hartford Anesthesiology Associates, Inc., as the defendants.

       To the extent that the plaintiff challenges the court’s decision not to consider the affidavits submitted by her in opposing the defendants’ motion, we conclude that she is unable to demonstrate that the court’s decision in this regard was of any consequence to its judgment of dismissal; the affidavits submitted by the plaintiff in opposing the defendants’ motion did not constitute opinion letters from a similar health care provider.
      Also, the plaintiff claims that she had raised before the trial court the issue of whether, given the facts of this case, the doctrine of res ipsa loquitur applied, “and thus the plaintiff did not even have to file an opinion letter from a medical provider.” The plaintiffs analysis of this claim consists of one sentence in her principal brief, in which she acknowledges that the trial judge did not expressly rule on the issue. Apart from the fact that the claim is briefed inadequately, we do not reach this claim because the trial court did not rule on the claim in rendering its judgment. “We have repeatedly hold that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citations omitted; internal quotation marks omitted.) LaBow v. LaBow, 115 Conn. App. 419, 425-26, 973 A.2d 127 (2009), cert. denied, 295 Conn. 912, 990 A.2d 344 (2010).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARK A. BRESCIA
    (AC 30855)
    Gruendel, Harper and Peters, Js.
    Argued March 9
    officially released July 20, 2010

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

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Seth R. Garbarsky, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

In this case, the state, concededly in error, prosecuted the defendant, Mark A. Brescia, for conspiracy to commit forgery in the first degree in violation of General Statutes §§ 53a-48 and 53a-138, even though the evidence on which it relied at the defendant’s plea hearing did not support that charge. Rather, the evidence supported only a charge of conspiracy to commit forgery in the second degree in violation of General Statutes §§ 53a-48 and 53a-139. Nevertheless, the defendant pleaded guilty to conspiracy to commit forgery in the first degree and thereafter was sentenced accordingly.

At issue in this appeal is the propriety of the defendant’s motion to correct an illegal sentence pursuant to Practice Book § 43-22. The defendant contends that the trial court improperly determined that it lacked jurisdiction to consider his motion. We disagree and, accordingly, affirm the judgment of the trial court.

The relevant facts are not in dispute. On August 24, 2004, the defendant knocked on the door of the home of an eighty-three year old woman, claiming that he was collecting donations for Saint Stanislaus Church. While he distracted her, a coconspirator entered the woman’s bedroom and stole her checkbook. The cocon-spirator unsuccessfully attempted to cash one of the woman’s checks at a Stop and Shop supermarket, which led to their arrest. The coconspirator later confessed to the incident.

The defendant was charged by information with burglary in the third degree in violation of General Statutes § 53a-103, conspiracy to commit forgery in the first degree in violation of §§ 53a-48 and 53a-138, and conspiracy to commit larceny in the sixth degree in violation of General Statutes §§ 53a-48 and 53a-125b. On March 15,2005, the defendant appeared before the court and pleaded guilty to all charges. During his plea canvass, the defendant was advised that conspiracy to commit forgery in the first degree was a class C felony that carried a maximum sentence of ten years incarceration, to which he acknowledged his understanding. The court accepted the defendant’s plea as knowing and voluntary. At that time, the defendant averred that he had spoken with his attorney “about all of the facts that the state claims it has to show” and “what it would take to prove [the] charges beyond a reasonable doubt . . . .” Nevertheless, neither the defendant nor his counsel, the state’s attorney or the court recognized the asymmetry between the crime of conspiracy to commit forgery in the first degree and the factual underpinnings of his prosecution.

The defendant appeared for sentencing on March 24, 2006, at which time the court imposed a sentence of ten years imprisonment, execution suspended after three years, with three years probation on the charge of conspiracy to commit forgery in the first degree. The court imposed a concurrent sentence of five years imprisonment, execution suspended after three years, with three years probation on the charge of burglary in the third degree. The court ordered an unconditional discharge on the charge of larceny in the sixth degree. In total, the court ordered an effective sentence of ten years imprisonment, execution suspended after three years, with three years probation, which it ordered to run consecutively to a six month term of imprisonment the defendant received upon being held in contempt in an unrelated matter.

On November 10, 2008, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22, claiming that “the court sentenced the [defendant for the wrong crime. ” Because the undisputed facts on which the guilty plea was accepted did not support the charge of conspiracy to commit forgery in the first degree, the defendant insisted that the sentence was illegal. Following a hearing, the court dismissed the defendant’s motion, and this appeal followed.

The defendant’s principal contention is that the court improperly concluded that it lacked subject matter jurisdiction to consider the motion to correct an illegal sentence. His claim presents a question of law over which our review is plenary. State v. Koslik, 116 Conn. App. 693, 697, 977 A.2d 275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).

The defendant’s claim is controlled by the decision of our Supreme Court in State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007). The defendant in that case claimed that “he improperly had been convicted of manslaughter in the first degree with a firearm, and that, had he properly been convicted of manslaughter in the first degree, his sentence of imprisonment could not have exceeded twenty years. According to the defendant, because he was sentenced to thirty-five years imprisonment, his sentence exceeded the statutory maximum permitted under the sentencing statute . . . .” (Citation omitted.) Id., 151-52. The defendant reasoned that “because his conviction is illegal, his sentence is necessarily illegal and, therefore, his claim falls within the purview of § 43-22.” Id., 152-53. The Supreme Court concluded otherwise. It first noted that “the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and that a court may not take action affecting a defendant’s sentence unless it expressly has been authorized to act.” Id., 154. It then turned its attention to Practice Book § 43-22, emphasizing that “for the trial court to have jurisdiction to consider the defendant’s claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review. . . . Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.” (Citations omitted.) Id., 155-57.

In analyzing the defendant’s claim, the Supreme Court explained that “a challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack. In the present case, the defendant’s claim, by its very nature, presupposes an invalid conviction. The defendant does not claim, nor could he, that the sentence he received exceeded the maximum statutory limits prescribed for the crime for which he was convicted; rather, he claims that he should have been convicted of a crime that has a lesser maximum statutory limit. He also does not claim that he was denied due process at his sentencing hearing or that his sentence is ambiguous or internally contradictory.” (Emphasis added.) Id., 158-59. As a result, the court held that the defendant’s claim fell outside “that set of narrow circumstances” in which a trial court may consider a claim of an illegal sentence, thereby depriving the court of subject matter jurisdiction over the motion. Id., 159.

Similarly, the subject of the defendant’s attack in the present case is the underlying conviction, not the sentencing proceeding. He does not allege that the sentence he received exceeded the prescribed statutory maximum for the crime to which he pleaded guilty. He simply asserts, as did the defendant in Lawrence, that “he was convicted of the wrong crime.” State v. Lawrence, 91 Conn. App. 765, 775, 882 A.2d 689 (2005), aff'd, 281 Conn. 147, 913 A.2d 428 (2007). Under Connecticut law, that collateral attack on his conviction does not fall within the purview of Practice Book § 43-22. See State v. Lawrence, supra, 281 Conn. 159; State v. Delgado, 116 Conn. App. 434, 439-40, 975 A.2d 736 (2009); State v. Wright, 107 Conn. App. 152, 157, 944 A.2d 991, cert. denied, 289 Conn. 933, 958 A.2d 1247 (2008); State v. Mollo, 63 Conn. App. 487, 491-92, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). As such, the court properly dismissed the defendant’s motion to correct an illegal sentence for lack of subject matter jurisdiction.

To its credit, the state recognizes that the defendant’s conviction for conspiracy to commit forgery in the first degree cannot stand. It concedes that the defendant erroneously was charged with conspiracy to commit forgery in the first degree, rather than in the second degree. The state further acknowledges that the defendant’s “inability to prevail upon the claims raised herein is not an indication that the mistake which occurred in this case is of no consequence and cannot be challenged,” noting the defendant’s pending habeas corpus proceeding in the Superior Court. In addition, the state submits that permission to file an untimely appeal from the judgment of conviction is warranted under the circumstances. Doubtless, this appeal is not the final chapter in this story.

The judgment is affirmed.

       Because the defendant and his girlfriend were expecting a child in early May, the court set a sentencing date of May 24, 2005. The court advised the defendant that “[i]f you don’t appear in court that day, you’ve [pleaded] to a number of charges that could result in a much more serious penalty .... In addition, you could be charged with failure to appear.” Although the defendant noted his understanding of that admonition, he failed to appear on May 24, 2005. When the defendant ultimately appeared for sentencing on March 24, 2006, the state indicated that, in the interim, he had been arrested twice, had been held in contempt by the court and had been charged with failure to appear.

       The defendant concedes that those facts support a conviction for conspiracy to commit forgery in the second degree. Forgery in the second degree is a class D felony; General Statutes § 53a-139 (c); punishable by a term of imprisonment of not less than one year and not more than five years. See General Statutes § 53a-35a.

       The defendant also maintains that his sentence runs afoul of the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny. In Apprendi, the United States Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., 490. Apprendi “thus applies to factual findings that serve to enhance a defendant’s maximum sentence beyond that allowable under the verdict alone.” State v. Walker, 90 Conn. App. 737, 742, 881 A.2d 406, cert. denied, 275 Conn. 930, 883 A.2d 1252 (2005). The defendant failed to preserve that claim before the trial court and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Such review is unwarranted. State v. Starks, 121 Conn. App. 581, 592, 997 A.2d 546 (2010) (Golding review of unpreserved claim regarding illegal sentence unavailable due to trial court’s exclusive authority and superior position to correct illegal sentence and fact that defendant retains “the right, at any time, to file a motion to correct an illegal sentence” to pursue unpreserved claim).

       ProceduraUy, the filing of the present motion to correct an illegal sentence is a prerequisite to raising that claim before the habeas court. See Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001) (“before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to [Practice Book] § 43-22 with the trial court”).


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. JORGE BENITEZ
    (AC 31422)
    Harper, Alvord and Pellegrino, Js.

      Argued April 14
    officially released July 20, 2010

      Peter J. Matthews, with whom, on the brief, was Mark S. Solak, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Patricia M.

      Froehlich, state’s attorney, and Bonnie R. Bentley and Roger Caridad, senior assistant state’s attorneys, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Jorge Benitez, appeals from the judgment of conviction, rendered following a jury trial, of arson in the first degree in violation of General Statutes §§ 53a-8 and 53a-lll (a) (4), conspiracy to commit arson in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-112 (a) (1) (A), criminal mischief in the first degree in violation of General Statutes §§ 53a-8 and 53a-115 (a) (1), conspiracy to commit criminal mischief in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-115 (a) (1), and inciting injury to persons in violation of General Statutes §53a-179a The defendant claims that (1) the trial court deprived him of a fair trial by failing to ensure that a record was created of what transpired when the jury visited the scene of the crime, (2) prosecutorial impropriety deprived him of a fair trial and (3) the court improperly denied his motion for a judgment of acquittal as to the crime of arson in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found that, following a dispute involving the sale of automobiles by the victim to the defendant, the defendant hired Jorge Delgado to set fire to a storage shed on the victim’s property. On April 19, 2006, Delgado and his brother, Frankie Delgado, entered the shed and, using accelerant, set fire to it. As the brothers fled from the scene, the victim, who was guarding his property while armed with a rifle, discharged his rifle in their direction. Jorge Delgado was struck in the arm by a bullet. Later, Jorge Delgado implicated the defendant in the plan to set the fire.

The victim attempted to put out the fire, to no avail. The fire destroyed the victim’s shed and damaged the victim’s boat. The fire also damaged a neighbor’s storage shed, siding on a neighbor’s residence, a fence bordering the victim’s property and several trees. A member of the victim’s family called 911, and firefighters from several fire departments responded to the scene. One firefighter sustained an ankle injury while battling the fire. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court deprived him of a fair trial by failing to ensure that a record was created of what transpired when the jury visited the scene of the crime. We disagree.

The record reflects that, on May 21, 2008, the state filed a motion in limine, requesting that the jury be permitted to tour the crime scene and to hear “a brief description of the scene” from Joseph McCusker, a state police detective. The defendant joined in the state’s motion, and it was granted by the court. Prior to the visit, the parties agreed on a list of points of interest at the crime scene that McCusker would identify for the jury.

There is no transcript of what McCusker stated during the visit to the crime scene. When court reconvened following the visit, the defendant’s attorney objected to McCusker’s commentary at the crime scene, recalling that McCusker had deviated from the commentary agreed on by the parties. Although the court disagreed with defense counsel’s recollection of McCusker’s comments, it delivered a curative instruction to the jury. The defendant’s attorney agreed with the instruction and did not revisit the issue during the remainder of the trial. After the defendant filed the present appeal, he filed three motions for articulation related to the jury’s visit to the crime scene. In relevant part, the court responded by stating that there was no transcript of McCusker’s remarks at the crime scene and that, to its recollection, McCusker had not deviated from noting the points of interest on which the parties had agreed.

On appeal, the defendant claims that the court violated Practice Book § 42-6 by failing to ensure that a record was created of what transpired during the jury’s visit to the crime scene. The defendant claims that the court’s failure to “preserve the record” deprived him of a fair trial because it had the effect of precluding him from raising on appeal the issue that he had raised at trial, namely, that McCusker made inappropriate comments to the jury during the jury’s visit to the crime scene, or other issues related to the jury’s visit to the crime scene that might have been discovered during the appeal process. The defendant argues that the record is inadequate for review because “any reconstructed record [would] not adequately reflect all of the comments made by . . . McCusker [at the crime scene].” The defendant seeks review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5.

Under Golding, a party “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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

The record is adequate to review the defendant’s claim, and the defendant’s claim is of constitutional magnitude, alleging that the court’s failure to ensure that a record was created deprived him of his ability to challenge what occurred during his trial and, thus, his due process right to a fair trial. See State v. Austin, 195 Conn. 496, 504, 488 A.2d 1250 (1985) (“we recognize that the defendant has a right to a full record of trial proceedings so that proper appellate review may be had . . . [but] this, like other constitutional rights, may be waived” [citations omitted]). The defendant, however, cannot demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial. “The absence of a portion of the trial transcript does not mandate a new trial. A new trial is required only if the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant.” (Internal quotation marks omitted.) State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). “ [Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” (Internal quotation marks omitted.) State v. Vitale, 190 Conn. 219, 224, 460 A.2d 961 (1983). Our rules of practice afford a procedural remedy to an appellant who wants to rectify a record for purposes of appeal; the defendant had the right to file a motion for rectification of the record and, if necessary, request that the court hold a hearing related to the motion. See Practice Book § 66-5; see also State v. Rae, 119 Conn. App. 740, 746-47, 989 A.2d 126, cert. denied, 296 Conn. 908, 993 A.2d 468 (2010).

It was up to the court, in the first instance, to determine whether a record of what transpired during the visit to the crime scene could adequately be reconstructed for purposes of the defendant’s appeal; see State v. Williams, supra, 227 Conn. 106; and the defendant had the right to seek review of the court’s ruling in this regard. See State v. Aquart, 69 Conn. App. 21, 26-29, 793 A.2d 1185, cert. denied, 260 Conn. 926, 797 A.2d 521 (2002). The defendant did not avail himself of his right to seek rectification of the record, and, unlike the defendant, we do not presume that a transcript of the proceeding at issue was the only means by which he could have proven his claim related to McCusker’s comments. In the absence of a showing that the record could not be adequately reconstructed, the defendant has not demonstrated any prejudice in the proceedings. Accordingly, we reject the defendant’s claim that a constitutional violation clearly exists and clearly deprived him of a fair trial.

II

Next, the defendant claims that prosecutorial impropriety during closing argument deprived him of his due process right to a fair trial. The defendant argues that, on two occasions during closing argument, the prosecutor misstated the evidence and engaged in misleading argument. We disagree.

At trial, the defendant objected to one of the two arguments at issue. Nonetheless, the claim related to both arguments is reviewable on appeal pursuant to State v. Stevenson, 269 Conn. 563, 572-74, 849 A.2d 626 (2004). In reviewing claims of prosecutorial impropriety, we must determine whether impropriety, in fact, occurred. If impropriety occurred, we must, by considering the factors set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), determine whether it deprived the defendant of his due process right to a fair trial. See State v. Reynolds, 118 Conn. App. 278, 291-92, 983 A.2d 874 (2009), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010).

We carefully have reviewed the evidence presented at trial, the challenged arguments of the prosecutor and the arguments raised on appeal by the defendant. We conclude that the arguments of the prosecutor properly were based on the evidence and the reasonable inferences to be drawn from the evidence. Argument of such nature is not improper. See, e.g., State v. Moore, 293 Conn. 781, 817, 981 A.2d 1030 (2009) (“prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom” [internal quotation marks omitted]), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010); State v. Long, 293 Conn. 31, 38, 975 A.2d 660 (2009) (“prosecutor . . . is not barred from commenting on the evidence presented at trial or urging the jury to draw reasonable inferences from the evidence that support the state’s theory of the case”). Accordingly, we are not persuaded that impropriety occurred and, thus, reject the defendant’s claim.

Ill

Finally, the defendant claims that the court improperly denied his motion for a judgment of acquittal as to the crime of arson in the first degree. We disagree.

At the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal. With regard to the crime of arson in the first degree, the defendant argued that the state had failed to present evidence to satisfy its burden of proof that, at the scene of the fire, a peace officer or firefighter was “subjected to a substantial risk of bodily injury.” General Statutes § 53a-lll (a) (4). The court denied the motion. On appeal, the defendant, raising materially similar arguments, argues that the court’s ruling was improper.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt .... The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. ... It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test. We first review the evidence . . . in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn . . . the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Bonner, 110 Conn. App. 621, 636-37, 955 A.2d 625, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

Following our careful review of the evidence presented at trial, we conclude that the evidence supported a finding that, at the scene of the fire on the victim’s property, “a peace officer or firefighter [was] subjected to a substantial risk of bodily injury.” General Statutes § 53a-lll (a) (4). The state presented evidence of the following facts. The fire occurred at night, and it was set in a wooden structure that was in proximity to residential structures. Flames from the fire reached heights of approximately seventy-five feet. The victim’s property is located in a rural, wooded location without fire hydrants nearby. Firefighters from several fire departments had to transport water to the scene. The victim’s property featured hilly terrain that required the responding firefighters to exercise extra caution in battling the fire. Additionally, the state presented evidence that one firefighter at the scene, Rocco Navarro, sustained a fractured ankle when a pressurized water hose struck him. On the basis of this evidence, and the rational inferences drawn therefrom, we conclude that the state presented sufficient evidence to satisfy its burden of proof as to the essential element of the crime challenged on appeal. Accordingly, we uphold the court’s denial of the defendant’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additionally, as alleged in a part B information, the court found the defendant guilty of being apersistent felony offender under General Statutes § 53a-40 (f). The court sentenced the defendant to a total effective term of incarceration of fifteen years, execution suspended after thirteen years, followed by a five year term of probation.

       In light of the defendant’s failure to seek a rectification of the record, we do not conclude that the claimed error warrants reversal of the judgment under the plain error doctrine, codified in Practice Book § 60-5.


author: BISHOP, J. WEST, J.,

text:
    TEAMSTERS LOCAL UNION NO. 677 v. BOARD OF EDUCATION OF THE CITY OF DANBURY
    (AC 31314)
    Bishop, Beach and West, Js.

      Argued April 6
    officially released July 20, 2010

      John T. Fussell, for the appellant (plaintiff).

      Peter J. Murphy, with whom, on the brief, was Thomas B. Mooney, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Teamsters Local Union No. 677, appeals from the judgment of the trial court denying its application to vacate an arbitration award in which the arbitrator found in favor of the defendant, the board of education of the city of Danbury. The plaintiff claims that the court should have vacated the award on the basis that the arbitrator exceeded his authority in determining that the defendant terminated the employment of Patricia Russo in accordance with the provisions of the parties’ collective bargaining agreement (agreement). We affirm the judgment of the trial court.

The record reveals the following undisputed material facts and procedural history. As of February, 2008, Russo had been employed by the defendant as a school lunch program worker for approximately twelve years, and her job sometimes required heavy lifting. The terms and conditions of Russo’s employment were governed by the agreement.

On February 25, 2008, Russo, with her arm in a full-length cast, presented to her supervisor at the school a work status certificate from a physician that indicated: “Patient is to be off due to pending surgery and long arm cast. . . . Estimated return to work is [four] weeks after surgery.” This statement to the defendant also contained the notation “Work Status: Off.” The defendant accepted this certificate and, pursuant to the terms of the agreement, placed her on paid sick leave while she awaited surgery and the subsequent period of recovery.

For several years, Russo also had been employed by H&R Block during the afternoon and evening hours, after her shift at the school. Her job at H&R Block involved light clerical work without heavy lifting. Because Russo’s cast did not impede her work at H&R Block, Russo continued to work at that job while on paid sick leave from her employment at the school.

On April 2, 2008, Russo was terminated from her employment with the school when the defendant discovered that she was working at H&R Block while on paid sick leave from her school job. The stated reason for the termination was that Russo was “engagfed] in gainful employment while being on a [sick leave] with the Danbury Public Schools. This dismissal is for just cause and is in accordance with the principles of progressive discipline.”

Russo filed a grievance, which was denied, and the dispute was submitted to arbitration. The parties submitted the following issue to the arbitrator: “Was . . . Russo terminated for just cause in accordance with Article VIII (D) (1) of the . . . agreement? If not, what shall the remedy be?” The arbitrator concluded that Russo had been discharged in accordance with article VIII (D) (1) of the agreement and sustained the termination.

On December 24, 2008, the plaintiff filed an application with the Superior Court to vacate the arbitrator’s award pursuant to General Statutes § 52-418 (a) (4) premised on the claim that the arbitrator exceeded his authority by sustaining the termination on grounds that had no basis in the agreement, namely, that Russo had an obligation to inquire whether light duty work at the school was available to her and that he failed to apply the principles of progressive discipline. The court concluded that the submission to arbitration was unrestricted and, therefore, limited its inquiry to whether the award conformed to the submission. The court answered that question in the affirmative and, therefore, determined that the arbitrator had not exceeded his authority. Accordingly, the court denied the plaintiffs application to vacate. This appeal followed.

On appeal, the plaintiff claims that the court improperly denied its application to vacate the award because the arbitrator exceeded his authority in issuing an award that is inconsistent with the agreement. Specifically, the plaintiff claims that the award violates Russo’s “contractual rights to paid sick leave and to progressive discipline.” We are unpersuaded.

Before addressing the plaintiffs claims on appeal, we set forth the well established principles that guide our review of an arbitration award that is based on an unrestricted submission. “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418. . . . [Section] 52-418 (a) (4) provides that an arbitration award shall be vacated if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

“In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005). “The standard for reviewing a claim that the award does not conform to the submission requires what we have termed ‘in effect, de novo judicial review.’ ” Id., 84. “Although we have not explained precisely what in effect, de novo judicial review entails as applied to a claim that the award does not conform with the submission, that standard best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. Our review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred.” Id., 85.

“In determining whether an arbitrator has exceeded the authority granted under the contract, a court cannot base the decision on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether that issue was correctly decided. Consequently, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator’s decision cannot be overturned even if the court is convinced that the arbitrator committed serious error.” (Internal quotation marks omitted.) Id., 86 n.7, quoting 1 M. Domke, Commercial Arbitration (3d Ed. 2003) § 39:6, pp. 39-12 through 39-13. Moreover, “[e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 88-89.

In this case, the plaintiff concedes that the award conforms to the submission. The plaintiff argues, nevertheless, that the award must be vacated because it is inconsistent with Russo’s contractual rights to paid sick leave and to progressive discipline. In support of its claim, the plaintiff asserts that this court should engage in a broader scope of review, and, rather than limit our review to the examination of the award and the submission, we should “compare the agreement with the award to determine whether the arbitrator has ignored his obligation to interpret and apply that agreement as written.” Board of Education v. Local 818, 5 Conn. App. 636, 640, 502 A.2d 426 (1985). “This additional analysis is conducted pursuant to such a claim because an arbitrator’s award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of this award. . . . If, for example, there was evidence that revealed that [the arbitrator] had reached his decision by consulting a ouija board, [it would] not suffice that the award conformed to the submission. ... It must be emphasized, however, that merely claiming inconsistency between the agreement and the award will not trigger judicial examination of the merits of the arbitration award. Rather, in the face of such a claimed inconsistency, this court will review the award only to determine whether it draws its essence from the collective bargaining agreement.” (Citations omitted; internal quotation marks omitted.) Id. We will not, however, employ a broader standard of review simply as an alternative means for determining whether the arbitrator correctly decided the issues that were submitted to arbitration. See Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 760-62, 980 A.2d 297 (2009).

Here, the record does not support the plaintiffs claim that the arbitrator disregarded Russo’s contractual right to paid sick leave. Rather, the arbitrator concluded that Russo had engaged in serious misconduct for which termination of employment was deemed appropriate because she received the employer approved, contractually earned sick time pay while she continued to work in her concurrent employment at H&R Block and did so without informing the defendant. A fair reading of the arbitrator’s decision reflects that he concluded that Russo’s representation to the defendant that her work status was “off’ was tantamount to a representation that she was disabled from work. In light of her concomitant employment with H&R Block, the arbitrator found this representation to be deceitful if not fraudulent. Although Russo’s employment at H&R Block did not involve heavy lifting as was required in her job at the school, the arbitrator faulted Russo for not inquiring of the defendant whether light duty was available, particularly when she knew that another lunch program worker was performing light duty work. Although the agreement did not impose on Russo any explicit obligation to request light duty or to tell the defendant that she was going to continue working at another job, the arbitrator found that Russo violated the “spirit” of the rules governing paid sick leave, and whether “characterized as negligent misrepresentation or fraud,” she had a duty to be honest with the defendant. The arbitrator concluded, as well, that Russo, as a supervisor, “had notice that her conduct was at the very least reprehensible.” Thus, although the arbitrator acknowledged that Russo had a contractual right to paid sick leave, he essentially concluded that such a right is not unbounded and that Russo’s behavior, namely her dishonesty, negated that right. See Local 391, Council 4, AFSCME v. Dept. of Correction, 76 Conn. App. 15, 19, 817 A.2d 1279 (2003) (“Merely because an arbitral decision is not based on the express terms of a collective bargaining agreement does not mean that it is not properly derived from the agreement. An arbitrator is entitled to take cognizance of contract principles and draw on them for guidance in construing an agreement.” [Internal quotation marks omitted.]). So long as the record demonstrates, as it does, that the arbitrator applied and interpreted the contract, even if mistakenly, it is not our role on review to determine whether he did so without flaw.

The plaintiff also claims that the arbitrator exceeded his authority in concluding that Russo’s conduct was so serious that “progressive discipline was not merited.” As noted, an applicable section of the agreement provides that an employee’s termination shall be in accordance with progressive discipline. Generally, progressive discipline contemplates a discipline procedure that begins with a mild sanction and increases in severity, with an aim toward correcting the employee’s behavior, until culminating in the discharge of the employee. However, “[s]ummary discharge in lieu of corrective discipline of the employee is deemed appropriate for very serious offenses.” F. Elkouri & E. Elkouri, How Arbitration Works (A. Ruben ed., 6th Ed. 2003) c. 15, p. 965. Although another fact finder, or we, on review, may not agree with the arbitrator’s characterization of Russo’s behavior as so serious that it did not warrant progressive discipline, it is clear that in considering the question of progressive discipline, the arbitrator was interpreting and applying the terms of the agreement to Russo’s conduct as he perceived it and in light of his understanding of the principles of progressive discipline. Thus, the award is not the innovation of a maverick. Rather, it plainly drew its essence from the agreement.

It is, of course, irrelevant whether we would reach the same conclusion as the arbitrator or even whether the arbitrator correctly interpreted the agreement. Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 86 n.7. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced. The arbitrator’s decision cannot be overturned even if the court is convinced that the arbitrator committed serious error.” (Internal quotation marks omitted.) Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. 755. Accordingly, because we cannot conclude that the arbitrator exceeded his authority, the court correctly declined to vacate the award.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

WEST, J.,

dissenting. I respectfully disagree with the majority’s conclusion that the record does not support Patricia Russo’s claim that the arbitrator, in finding that the defendant, the board of education of the city of Danbury (board), terminated her employment in accordance with the parties’ collective bargaining agreement (agreement), disregarded her contractual rights under that agreement. On the contrary, and on the basis of my review of the record before this court, I conclude that the arbitrator abrogated her contractual right to paid sick leave under the agreement by placing the onus on Russo to seek out “light duty” work from the board. Because that action amounted to the arbitrator modifying the agreement, I would reverse the judgment of the trial court and remand this case with direction to vacate the arbitrator’s award. Accordingly, I respectfully dissent.

Initially, I note that I agree with the majority’s explication of the established principles that guide the review of an arbitration award that is based on an unrestricted submission. I, however, find it necessary to underscore that “ ‘[a]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.’ . . . Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963).” Local 391, Council 4, AFSCME v. Dept. of Correction, 76 Conn. App. 15, 19, 817 A.2d 1279 (2003). Likewise, I agree that “[m]erely because an arbitral decision is not based on the express terms of a collective bargaining agreement does not mean that it is not properly derived from the agreement. An arbitrator is entitled to take cognizance of contract principles and draw on them for guidance in construing an agreement. . . . Neither a misapplication of principles of contractual interpretation nor an erroneous interpretation of the agreement in question constitutes grounds for vacatur.” (Internal quotation marks omitted.) Id., 18-19.

Here, the arbitrator concluded that Russo had “violated the letter and spirit of the sick leave provisions” in the agreement. That was so, the arbitrator concluded, because Russo, in her “position of heightened knowledge” that resulted from her supervisory role, “knew, or should have known, that an accommodation [for] her limitations was possible.” Therefore, he reasoned, Russo had a responsibility under the sick leave provisions to come forward and to seek an accommodation for her injuries or, at the very least, to clarify the matter with her supervisor. It seems to me, however, that in so doing, the arbitrator placed on Russo obligations, apparently cut from whole cloth, that the agreement did not expressly or implicitly impose. My review of the agreement reveals that there is no provision in it requiring an employee to seek out “light duty,” nor, I believe, can one reasonably be implied through contract interpretation. As such, I conclude that the arbitrator’s decision clearly was not properly derived from that agreement. Essentially, the arbitrator, by adding terms to the agreement, did not engage in a plausible interpretation of the contract and, thereby, exceeded his powers such that a mutual, final and definite award was not made. See General Statutes § 52-418 (a) (4); footnote 2 of the majority opinion; Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 951 A.2d 1249 (2008); cf. Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 763, 980 A.2d 297 (2009) (Katz, J., dissenting) (“When parties to an arbitration agreement use terms that have a well settled, universally understood, unambiguous meaning, they have not intended to open up those terms to interpretation by the arbitrator. Thus, when an arbitrator ignores the settled meaning of a term, the arbitrator has not engaged in a plausible interpretation of the contract and, in such a case, has exceeded his authority.”).

Because the arbitrator’s memorandum of decision manifests his infidelity to his obligation to issue an award that draws its essence from the agreement by, essentially, modifying the provisions of the agreement, I conclude that the arbitrator exceeded his powers within the meaning of § 52-418 (a) (4) and dispensed his own brand of industrial justice. See Local 391, Council 4, AFSCME v. Dept. of Correction, supra, 76 Conn. App. 19.1, therefore, respectfully dissent.

         Article VIH (D) (1) provides: “The [ejmployer may discharge employees for any offense that the [ejmployer deems of sufficient seriousness to warrant discharge, provided that all such discharges shall be for just cause and in accordance with the principles of progressive discipline.”

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The plaintiff also sought to vacate the award pursuant to § 52-418 (a) (3) on the ground that the arbitrator was guilty of misconduct because his reference to Russo’s actions as “fraud” did not arise until the hearing, and the plaintiff, therefore, did not have an opportunity to defend against them. The court rejected this argument on the ground that the arbitrator’s reference to Russo’s behavior as fraud was a legal conclusion and that the plaintiff was well aware of the conduct that resulted in the termination of employment. Thus, the court concluded: “Re-casting the same allegations as were alleged to be violative of § 52-418 (a) (4) as a violation of § 52-418 (a) (3) fails to demonstrate a deprivation of a full and fair hearing under these circumstances.” The court also rejected the plaintiffs claims that the award was untimely and was in inconsistent form. The plaintiff has not challenged those determinations on appeal.

       Article VII, § 2, of the agreement governs earned sick pay and provides: “(a) Leave for personal illness shall be fifteen (15) days per year cumulative to ninety (90) days for all [ejmployees, provided however that [ejmployees who accumulated unused sick leave in excess of ninety (90) days prior to the effective date of this agreement will be permitted to use the accumulated leave but may not accumulate additional sick leave.
      “(b) Sick leave shall be earned at the rate of one and one-half (1 V2) days per month.
      “(c) Sick leave pay will be based on each [ejmployee’s daily rate of pay.
      “(d) At the option of the Board or the Superintendent, aphysician’s excuse may be required of any employee after four (4) consecutive days of sick leave. The Board also may require an examination of any [ejmployee by a physician hired by the Board.”

       It is undisputed that the submission to the arbitrator was unrestricted in this case. “A submission is unrestricted when . . . the parties’ arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005).

       Indeed, the plaintiff acknowledged at oral argument that there exists a mutual duty of honesty in the employer-employee relationship.

       The arbitrator noted various disciplinary problems that the defendant had with Russo over the eighteen months preceding the termination of her employment. For these problems, Russo had been made subject to progressive discipline, starting with warnings and leading to a suspension due to go into effect when she presented her medical certificate to the defendant.

       The plaintiff conceded at oral argument before this court that if Russo had been discharged for theft or for striking a person over the head with a shovel, there would be no basis for appeal because the arbitrator properly would have determined that the offense was sufficiently serious to justify a discharge. Our question, however, is not whether the arbitrator made a proper determination of the relative seriousness of Russo’s conduct. Because it is not our role to second-guess the legal or factual conclusions of the arbitrator, we cannot question his determination that Russo’s offense was so serious that progressive discipline was not required. Rather, our inquiry in this regard is limited to the question of whether he considered the principles of progressive discipline as they related to the situation he confronted.

       The arbitrator also concluded that Russo’s behavior was so serious that it did not warrant progressive discipline. Because I conclude that the arbitrator exceeded his authority by modifying the agreement to include an obligation placed on Russo to seek out an accommodation, I also conclude that her actions did not constitute an offense at all. Therefore, she should have been subjected to no discipline, and I need not discuss further the arbitrator’s conclusions in that regard.

       See R. Gorman & M. Finkin, Basic Text on Labor Law, Unionization and Collective Bargaining (2d Ed. 2004) § 26.3, p. 825 (“[i]f the arbitrator’s decision is based on ‘subjective notions of a fair labor contract’ not reasonably anchored in the contract itself, or on ‘some body of thought, or feeling, or policy, or law that is outside the contract [and not incorporated in it by reference],’ a court may well vacate the award”), quoting Harry Hoffman Printing, Inc. v. Graphic Communications International Union, Local 261, 950 F.2d 95, 98, 100 (2d Cir. 1991).


text:
    STATE OF CONNECTICUT v. ROSS LIVINGSTON MILLER JR.
    (AC 30466)
    Bishop, Gruendel and Harper, Js.
    Submitted on briefs May 20
    officially released July 20, 2010

      John F. Cocheo, filed a brief for the appellant (defendant).

      Michael L. Regan, state’s attorney, Richard K. Greenalch, Jr., special deputy assistant state’s attorney, and Lonnie Braxton, senior assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Ross Livingston Miller Jr., appeals from the judgment of conviction, rendered after a court trial, of reckless driving in violation of General Statutes § 14-222, evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b) and failure to obey a traffic control signal in violation of General Statutes § 14-299. He claims that (1) the evidence adduced at trial was insufficient to sustain his conviction of reckless driving and (2) his conviction of reckless driving was inconsistent with his acquittal on a charge of risk of injury to a child in violation of General Statutes § 53-21. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On the afternoon of February 10, 2007, Jennifer Johnson was driving her motor vehicle on Pequot Trail in Stonington. Also in the vehicle were her daughter, her sister and her sister’s boyfriend. While stopped at a red traffic signal, she observed in her rearview mirror an automobile approaching at a high rate of speed that ultimately stopped close behind her. As Johnson testified at trial, the defendant was the operator of that vehicle and “was honking his horn, and he was flashing his lights and revving his car” while using hand gestures urging her to proceed. In response, Johnson pointed to the red traffic signal. At that moment, the defendant’s vehicle struck the rear of Johnson’s vehicle. Johnson applied her brakes as the defendant’s vehicle pushed hers into the middle of an intersection. The defendant then proceeded past Johnson’s vehicle, at which point her sister wrote down the defendant’s license plate number and contacted the police to report the incident.

The defendant subsequently was arrested and a court trial followed, at the conclusion of which the court found the defendant guilty of reckless driving, evasion of responsibility in the operation of a motor vehicle and one count of failure to obey a traffic control signal. The court acquitted the defendant of risk of injury to a child and failure to obey a traffic control signal, and thereafter sentenced him to a total effective term of six months incarceration, execution suspended after thirty days, with one year of probation. From that judgment, the defendant appeals.

I

The defendant claims that the evidence adduced at trial was insufficient to sustain his conviction of reckless driving. We disagree.

“When reviewing sufficiency of the evidence claims, we [apply] a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Wideman, 36 Conn. App. 190, 202, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). Although “the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense . . . each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [trier of fact] to conclude that a basic fact or an inferred fact is true, the [trier 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. Ledbetter, 275 Conn. 534, 542, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). In considering an allegation of evidential insufficiency, “we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Bruno, 293 Conn. 127, 136, 975 A.2d 1253 (2009).

Section 14-222 (a) provides in relevant part that “[n]o person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway .... The operation of a motor vehicle upon any such highway ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle .. . shall constitute a violation of the provisions of this section. . . .” “It is reckless indifference to the safety of others which supplies the criminal intent necessary to warrant conviction” under § 14-222. (Internal quotation marks omitted.) State v. Sandra O., 51 Conn. App. 463, 467, 724 A.2d 1127 (1999).

In their testimony, which it would serve no useful purpose to recount in detail, Johnson and her sister described the incident with the defendant on the afternoon of February 10, 2007. Although the defendant argues that such testimony was not credible, such determinations are the exclusive province of the trier of fact. As this court has observed, “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... As such, the trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility.” (Citation omitted; internal quotation marks omitted.) Id., 468. The court in the present case was free to believe the testimony of Johnson and her sister, which constituted evidence sufficient to establish reckless driving on the part of the defendant.

II

The defendant also alleges that his conviction of reckless driving was inconsistent with his acquittal on the charge of risk of injury to a child. “[W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the [trier of fact] had for consideration. ... If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244, 745 A.2d 800 (2000).

As earlier noted, § 14-222 requires the state to prove that the defendant operated a motor vehicle in a manner that was reckless with “regard to the width, traffic and use of [the] highway . . . .” General Statutes § 14-222 (a). By contrast, a conviction of risk of injury to a child requires proof that the defendant “wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered . . . .” General Statutes § 53-21 (a) (1). In State v. Borrelli, 94 Conn. App. 849, 861-62, 895 A.2d 257 (2006), this court held that “[r]isk of injury to a child . . . under § 53-21 (a) (1), contains elements that are entirely different from those of . . . reckless driving.” Because each offense contains different elements, “a conviction on one is not inconsistent with an acquittal” on the other. Id., 862.

We further reject the defendant’s contention that his conviction of reckless driving logically cannot be squared with his acquittal of risk of iryury to a child. See State v. DeCaro, supra, 252 Conn. 243. On the charge of reckless driving, the court found beyond a reasonable doubt that “the defendant was operating his vehicle on a public highway of the state of Connecticut and that he intentionally struck the victim’s car with his, pushing her car into an intersection. The defendant operated his car in a reckless manner with disregard for traffic and use of said highway . . . .” With respect to the charge of risk of injury to a child, the court similarly found that “[t]he defendant’s conduct was unlawful or wilful. The defendant had the general intent to push the victim’s car, ostensibly, out of his way, and there was a child under sixteen years of age in the car.” The court nevertheless found that the requirement that “his behavior, in that moment, was likely to injure the life and limb of the child [had] not been proven beyond a reasonable doubt.” On our review of the record, we cannot say that the court’s decisions were unreasonable or illogical.

The judgment is affirmed.

       The defendant does not contest his conviction of evasion of responsibility in the operation of a motor vehicle and failure to obey a traffic control signal in this appeal.

       We note that our Supreme Court recently held that claims of legal inconsistency between a conviction and an acquittal in criminal jury trials are not reviowable. State v. Arroyo, 292 Conn. 558, 586, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010). In that decision, the court expressed “no opinion as to whether factually or legally inconsistent verdicts in cases tried solely to the court are permissible.” Id., 584 n.21.


text:
    LAWRENCE SMITH v. COMMISSIONER OF CORRECTION
    (AC 30314)
    Flynn, C. J., and Alvord and West, Js.

    Argued March 18
    officially released July 20, 2010

      Michael Stone, special public defender, for the appellant (petitioner).

      Jo Anne Sulik, senior assistant state’s attorney, with whom, on the brief, was GailP. Hardy, state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The petitioner, Lawrence R. Smith, appeals from the judgment of the habeas court dismissing in part his claims of ineffective assistance of trial and habeas counsel and finding that his remaining claims were barred by principles of res judicata. The court granted the petitioner’s petition for certification to appeal. We affirm the judgment of dismissal by the habeas court and its determination that the petitioner’s remaining claims were barred by the doctrine of res judicata.

The present habeas petition relates to the petitioner’s convictions in two different criminal cases, the first case (first case), based on an incident that occurred on July 21, 1989, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B) and, one count each of robbery in the third degree in violation of General Statutes § 53a-136, larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). He was sentenced to thirty-five years imprisonment. His conviction was affirmed by our Supreme Court. See State v. Smith, 219 Conn. 160, 161, 592 A.2d 382 (1991).

Also in 1989, in a second unrelated case (second case), the petitioner was convicted of larceny in the first degree in violation of General Statutes § 53a-122 (a) (3), conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (3) and 53a-48 (a), three counts of larceny in the second degree in violation of § 53a-123 (a) (1) and two counts of larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). For those crimes, he was sentenced to an additional fifteen years imprisonment to be served concurrently to the thirty-five year sentence. That conviction was affirmed. See State v. Smith, 26 Conn. App. 279, 285, 600 A.2d 1036 (1991).

The petitioner has brought prior habeas petitions, which have been unsuccessful, against prior trial and habeas counsel. All of these petitions were dismissed and the dismissals were upheld on appeal. In the present habeas petition, he claimed that his trial counsel, attorney Julian Schlesinger, was ineffective in the first case in which the petitioner was convicted of kidnapping, robbery, larceny and assault.

The court dismissed the petitioner’s claims against his trial counsel, Schlesinger, and his first habeas counsel, attorney Thomas Conroy, on the ground that they were successive. The petitioner claims on appeal that the dismissal was an improper application of Practice Book § 23-29. That provision provides in relevant part that the “judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .” Practice Book § 23-29.

The petitioner claims in the present habeas petition that Schlesinger was ineffective in introducing evidence that he had lied to the police and was in Hartford on the date of the July 21, 1989 incident because he had an appointment in connection with his release on parole as a result of his commission of a prior crime. He also claims that Conroy was ineffective in not raising these factual issues in the first habeas trial.

It is worth noting that in his habeas proceeding before Judge Zarella, the petitioner then claimed that “[t]rial counsel failed to adequately pursue a line of questioning that would have allowed the petitioner to explain his false statement . . . .’’to the police. Smith v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 845, 1236, 0128, 1291 (July 11, 1997), affd sub nom. Smith v. Commissioner of Correction, 51 Conn. App. 905, 727 A.2d 821 (1999) (per curiam).

After a thorough review Judge Zarella found no prejudice to the petitioner in his trial counsel’s performance. Specifically, the court held that “[a]fter review of all the alleged deficiencies both individually and cumulatively in trial counsel’s representation of the petitioner, the court finds that the petitioner has failed ‘to establish a probability sufficient to undermine confidence in the outcome.’ . . . Bunkley v. Commissioner of Correction, [222 Conn. 444, 445-46, 610 A.2d 598 (1992)].” Smith v. Warden, supra, Superior Court, Docket No. CV 845, 1236, 0128, 1291.

Initially, we set forth the appropriate standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus when certification to appeal is granted. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). “To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn. App. 295, 298, 995 A.2d 641 (2010).

The habeas court properly recognized that two petitions may be brought on the same legal grounds if the two petitions seek different relief. See McClendon v. Commissioner of Correction, 93 Conn. App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). Successive petitions based on the same legal grounds and seeking the same relief are susceptible to a motion to dismiss. Id. An exception is drawn to this rule if newly discovered facts are the ground of the second petition. Id. However, in this case, the court concluded properly that a “ground” is a sufficient legal basis for granting the relief sought, that the ground was ineffective assistance in both the first and second petition and that the second petition was merely a reformation of the same factual bases that had already been asserted. In other words, there are no newly discovered facts here. We therefore affirm the partial dismissal of the petition as to the claims against Schlesinger and Conroy. They were successive in that they were presented on the same grounds of ineffective assistance of counsel. “Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language.” James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998). However they are proved, such grounds as the petitioner asserted are identical in that each alleges ineffective assistance of counsel, and therefore the petition was successive and properly dismissed.

The petitioner also raised ineffective assistance claims against his second habeas counsel, attorney Dennis McDonough, for failure to raise in the prior habeas petition claims he now raises in this petition. These claims were not included in the respondent’s partial motion to dismiss. The court found that the claims were barred by res judicata.

Under a two-pronged test necessary to succeed on a claim of ineffective assistance of counsel, the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), held that to satisfy the performance prong, a claimant must demonstrate that counsel’s errors were so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment to the United States constitution and that the petitioner was prejudiced because but for counsel’s performance errors, the result of the proceedings would have been different. The court in the present case found that the prejudice prong had not been satisfied.

Our standard of review as to whether McDonough’s representation was inadequate is plenary, being a mixed question of law and fact. See Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995). “[T]he habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” Carmon v. Commissioner of Correction, 114 Conn. App. 484, 488, 969 A.2d 854, cert. denied, 293 Conn. 906, 978 A.2d 1108 (2009). For McDonough to have been ineffective Schlesinger would have to have been found to be ineffective and thereby to have prejudiced the petitioner.

The court decided that the petitioner could not prove prejudice resulting from McDonough’s performance because in a prior habeas case the court, Zarella, J., not only found no ineffectiveness but significantly had found no prejudice on the same grounds. See Smith v. Warden, supra, Superior Court, Docket No. CV 845, 1236, 0128, 1291. Judge Zarella found that Schlesinger, adequately brought out at trial that the petitioner’s false statement to the police was made because the petitioner was on parole and therefore fearful.

The petitioner has attempted to recast and reformulate the same facts from the earlier petition before Judge Zarella. Then, he argued that his trial counsel’s questioning did not adequately explain his prior lies and that it did not go far enough. Now, he reformulates the same factual basis underlying his ground of ineffectiveness of counsel. Specifically, the petitioner argues that his trial counsel had erred in bringing out any evidence at all from him concerning his prior lies to the police and the fact that he was on parole for other crimes and that his habeas counsel was ineffective in not raising this issue. Our review of the record causes us to conclude that the issue of prejudice from alleged ineffectiveness of trial counsel was decided in a prior proceeding and that the court properly concluded that it was barred from relitigation by the principles of res judicata.

The judgment is affirmed.

       There are two pairs of prior petitions, the first handled by attorney Thomas Conroy, Docket Nos. CV-90-0000845 and CV-90-001028, alleging ineffective assistance of trial counsel and appellate counsel, respectively, in the underlying criminal case. The habeas petitions were dismissed and the dismissals upheld on appeal. See Smith v. Commissioner of Correction, 51 Conn. App. 905, 727 A.2d 821 (1999) (per curiam). The second pair comprises Docket Nos. CV-99-0334726 and CV-99-03335566, alleging ineffective assistance of counsel against Conroy in his handling of the first set of habeas cases. The petitioner was represented in this latter set of cases by attorney Dennis McDonough. Appeals were filed in both of McDonough’s cases; however, the appeals did not progress further after a motion to withdraw was filed by appellate counsel.

       See Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992).