author: LAVINE, J. PELLEGRINO, J.,

text:
    KEVIN PETITTE v. DSL.NET, INC.
    (AC 27557)
    Harper, Lavine and Pellegrino, Js.
    Argued February 8
    officially released July 10, 2007

      Roger B. Calistro, for the appellant (plaintiff).

      Peter K. Rydel, with whom, on the brief, was Glenn W. Dowd, for the appellee (defendant).
   Opinion

LAVINE, J.

This case provides a clear illustration of how the employment at will doctrine can lead to seemingly harsh results. This action arose after the defendant, DSL.net, Inc., extended an offer for at-will employment to the plaintiff, Kevin Petitte, changed its mind and rescinded its offer, prior to the plaintiffs commencing employment, but after he had left his former employment. The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant, claiming that the court improperly granted the defendant’s motion for summary judgment as to all three counts of his amended complaint. Specifically, the plaintiff challenges the court’s legal conclusions that (1) his breach of contract claim was barred because an employment at-will relationship existed, despite the fact that he had never commenced employment, (2) his negligent misrepresentation claim must fail because there was no false promise of employment on which he could have relied justifiably and (3) his infliction of emotional distress claim could not be sustained because the defendant’s conduct was neither extreme nor outrageous. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs appeal. On December 8, 2003, Ray Allieri, the defendant’s senior vice president for sales and marketing, telephoned the plaintiff and offered him a sales position. Allieri stated that the defendant would send the plaintiff an offer of employment letter as soon as possible and told him that his start date would be December 15, 2003. At the time of this conversation, the plaintiff was employed by another company as a district sales manager. The plaintiff informed the company that he was resigning in order to work for the defendant, following his conversation with Allieri, but before he received the offer letter.

On December 10,2003, the plaintiff went to the defendant’s place of business and obtained the letter. The letter offered the plaintiff employment as the defendant’s regional sales manager beginning December 15, 2003. The letter provided that the offer was contingent on “[the plaintiffs] understanding that this letter is not a guarantee of employment for any specified length of time by either party. While it is our hope that you will have a long and fruitful career with [the defendant], your employment will be ‘at-will,’ which means that either you or the company can terminate your employment at any time for any reason, with or without cause.” The plaintiff signed the letter and returned it to the defendant. After doing so, the defendant asked the plaintiff for a list of employment references. The plaintiff provided them. The defendant had not requested any references prior to issuing the letter.

On December 15, 2003, pursuant to terms of the offer letter, the plaintiff reported to the defendant’s place of business to begin work. The plaintiff met with Allieri, who indicated that some of the defendant’s employees had some concerns about hiring him. Allieri asked the plaintiff for additional employment references and suggested that he return home and that Allieri would contact him there later. Allieri informed the plaintiff that evening by telephone that the defendant could not employ him. On December 18, 2003, the plaintiff received a letter rescinding the December 10, 2003 letter, on the basis of the information that the defendant received from the plaintiffs references. The plaintiff attempted to return to his former employment but was unsuccessful.

The plaintiff filed an amended complaint on July 19, 2004. In the three count complaint, the plaintiff alleged breach of contract, negligent misrepresentation and infliction of emotional distress. The defendant filed a motion for summary judgment on December 12, 2005, which the court granted as to all three counts. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff alleges that the court improperly rendered summary judgment as to all three counts. Accordingly, as a threshold matter, we set forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, 98 Conn. App. 837, 840-41, 912 A.2d 1037 (2006).

“On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summaiy judgment is plenary.” (Internal quotation marks omitted.) Id., 841. We now will review in turn the rendering of summary judgment as to each count of the plaintiffs complaint.

I

BREACH OF CONTRACT

The plaintiff first claims that the court improperly granted the defendant’s motion for summary judgment as to count one of his complaint, which alleged breach of contract. The plaintiff argues that the court improperly determined as a matter of law that the defendant could not face liability in contract for terminating its offer for at-will employment prior to the plaintiffs commencing employment. We consider, as a matter of first impression in Connecticut, whether the employment at will doctrine extends to offers for at-will employment. Because we agree with the court that the employment at will doctrine applies to all aspects of the employment relationship and is not conditioned on the prospective employee actually commencing employment, we are not persuaded by this claim.

It is well established that “[i]n Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability.” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-98, 802 A.2d 731 (2002).

In rendering summary judgment in favor of the defendant on the plaintiffs contract claim, the court referenced Thibodeau and stated: “[The defendant] had the right to terminate its employment relationship with the plaintiff for any reason, or no reason, at any time. . . . It is hard to imagine a broader description of an employer’s rights. An employment relationship with [the defendant] arguably started when the plaintiff signed and returned the December 10, 2003 offer letter. Clearly, on December 15,2003, there was some kind of employment relationship that caused the [plaintiff] to report . . . to begin work. The point, however, is not the precise time when an employment relationship began or the exact contours of that relationship, but rather that [the defendant’s] rights are not conditioned on the relationship reaching any particular point. The fact that [the defendant] exercised its rights before the plaintiff actually started work is not material. The only material fact is the at-will nature of the employment relationship. ... In practical terms, this rule makes sense. An employer who changes its mind about a prospective employee should not be required to allow the person to actually commence duties before ending the relationship. In a situation like the present one, commencement of duties customarily involves access to confidential information and the beginning of an agency relationship. The law does not require employers to undertake such burdens for an unwanted at-will employee.”

The plaintiff acknowledged in the affidavit that he submitted in opposition to the summary judgment motion that he understood his employment with the defendant would be “at will.” The December 10, 2003 letter, which the plaintiff signed, explicitly provided that the defendant could terminate the employment “at any time for any reason, with or without cause”; (emphasis added); and at his deposition, the plaintiff testified that he “understood what [he] was getting into.” The plaintiff argues, however, that his breach of contract action is not barred as a matter of law because the parties created two separate contracts on December 10, 2003, one to employ and the other of employment. Although he concedes that the defendant could terminate the employment contract the minute after he provided service, he asserts that it could not terminate the contract to employ him for any reason prior to his first day of employment. He claims that because he never had the opportunity to begin employment, he never became an employee. As a result, he asserts that the protections afforded to the defendant under the employment contract, as an at-will employer, were not applicable to the contract to employ him.

In contrast, the defendant argues that recognizing the fiction of two distinct contracts “would create the absurdity that putative at-will employees would have greater rights preemployment than after they began working. ... It would force would be employers who have decided to terminate the employment relationship to wait until the employee begins work before doing so, even under circumstances where there is no possibility that an actual employment relationship will ever exist.”

As the plaintiff challenges the court’s legal conclusion, we must determine whether, as a matter of law, the employment at will doctrine operates to shield employers from liability for terminating an employment relationship after making an offer but before the prospective employee commences work. As stated previously, this issue is one of first impression in Connecticut. Thus, we look for guidance to courts from other jurisdictions that have considered it.

The Virginia Supreme Court in Sartin v. Mazur, 237 Va. 82, 375 S.E.2d 741 (1989), held that the plaintiff could not assert a cause of action for breach of contract on the basis of the defendant’s decision not to allow her to begin work even after she had accepted the defendant’s offer. Id., 85. After the plaintiff interviewed with the defendant, the defendant issued a written offer of employment, notified the plaintiff as to her start date and requested that she bring certain documents to work on the first day. Id., 83-84. The plaintiff quit her previous job, allegedly in reliance on the written job offer, and relocated to the county where the defendant was located. Id., 84. On her first day, however, she was informed that she could not commence work because she had failed to include on her application a previous job that she had included on her resume. Id. Similar to the plaintiff in the present case, the plaintiff in Sartin did not allege that her employment was to be anything other than at will. Id., 85.

The Virginia Supreme Court reasoned: “It would be absurd to require an employer, which had changed its mind after an offer had been made, to actually employ the applicant for one hour or one day so that the employee could then be discharged. . . . Consequently, we hold that an offer for at will employment is terminable at any time, which includes the time before the prospective employee assumes the position. In sum, the doctrine of free terminability draws no distinction between the offer of employment and the actual act of employment.” (Emphasis added.) Id., 85.

We likewise consider Slate v. Saxon, Marquoit, Bertoni & Todd, 166 Or. App. 1, 999 P.2d 1152, review denied, 330 Or. 375, 6 P.3d 1105 (2000). In Slate, the defendant offered the plaintiff a position as an attorney, conditioned on his passing the Oregon bar examination. Id., 3. The plaintiff accepted the offer and passed the bar examination. Id. Before the plaintiff was scheduled to commence working, however, the defendant told him that it had terminated the employment arrangement. Id. In affirming the trial court’s granting of the defendant’s motion for summary judgment, the court stated as to the plaintiffs breach of contract claim that “it would be completely illogical to hold that an employer is exposed to liability if it invokes the right to terminate at will before the employee begins working but is absolved from liability if it defers doing so until immediately after the employee first reports for work. ... It would serve the interests of no one ... to discourage putative employers from discharging [potential employees] earlier rather than later, under circumstances where there is no possibility that an actual employment relationship will ever exist.” Id., 5-6. Moreover, the court rejected the argument put forth by the plaintiff in the present case that there were two separate contracts, one to employ and the other of employment. See id., 6.

Upon our review of the persuasive reasoning set forth in Sartin and Slate and in light of our case law, we conclude that logic dictates that no distinction should be drawn between the offer of employment and the actual act of employment when the employment relationship is at will. We hold, therefore, that the employment at will doctrine extends to offers of at-will employment. We believe this clarification of the law serves to put employees on notice of the risk they take when leaving existing employment for another one. An individual leaving the employ of one entity for an at-will position with another should understand that he has no guarantee that he will be permitted to commence employment. Given our legal conclusion and the undisputed facts in the present case that the November 10, 2003 letter explicitly stated that the plaintiffs employment was terminable at will and that the plaintiff understood the terms of his employment, the court properly rendered summary judgment in favor of the defendant as to the breach of contract claim.

II

NEGLIGENT MISREPRESENTATION

The plaintiff next claims that the court improperly granted the defendant’s motion for summary judgment as to count two of his complaint, which alleged negligent misrepresentation. The plaintiff alleged that he justifiably relied to his detriment on the defendant’s false representation that he could commence employment on December 15, 2003, when the defendant knew that it had not yet consulted the plaintiff’s employment references. We conclude that the court properly rendered summary judgment because, as a matter of law, the plaintiffs factual allegations failed to rise to the level of a legally viable claim.

In the second count of the complaint, the plaintiff alleged the following: “The statement by the defendant to the plaintiff of an offer to join the defendant to work as [rjegional [sjales [mjanager . . . with a start date of December 15, 2003 was false . . . and the defendant knew, or in the exercise of reasonable care as an employer should have known at the time it made such representations that they were false. . . . The plaintiff relied on the untrue representations of the defendant, and quit his existing job to start work with the defendant, which resulted in the permanent forfeiture of that job .... The plaintiff suffered pecuniary loss as a result of his reliance . . . .”

“This court has long recognized liability for negligent misrepresentation. . . . One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Emphasis added; internal quotation marks omitted.) Updike, Kelly & Spellacy, P. C. v. Beckett, 269 Conn. 613, 643, 850 A.2d 145 (2004).

In this case, the facts alleged do not state a cause of action. Although we recognize that the legal sufficiency of pleadings normally must be raised in a request to revise or a motion to strike, after reviewing the record, we conclude that given the circumstances of this case, the court properly decided the motion for summary judgment on the basis of the facts alleged and the evidence submitted rather than on the legal sufficiency of the pleadings. See Arnone v. Connecticut Light & Power Co., 90 Conn. App. 188, 204, 878 A.2d 347 (2005).

We agree with the court’s conclusion that as a matter of law, the employment offer contained in the December 10,2003 letter did not constitute negligent misrepresentation because it (1) did not guarantee employment and (2) stated that any employment relationship was at will. The letter explicitly provided that “this letter is not a guarantee of employment [and that] your employment will be ‘at-will,’ which means that either you or the company can terminate your employment at any time for any reason, with or without cause.” Moreover, the plaintiffs reliance on the letter as a guarantee of employment was not justifiable as a matter of law. As noted by the court, “the offer letter was fraught with risk because [the defendant] reserved unfettered discretion to end the employment relationship at any time.” We agree that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law. We therefore conclude that summary judgment was properly rendered as to the negligent misrepresentation claim.

Ill

INFLICTION OF EMOTIONAL DISTRESS

The plaintiffs final claim is that the court improperly granted the defendant’s summary judgment motion as to count three of his complaint, which alleged infliction of emotional distress. We are not persuaded because we conclude that the court properly (1) construed the plaintiff’s complaint as setting forth a cause of action for intentional infliction of emotional distress and (2) determined that, as a matter of law, the defendant’s conduct was not extreme and outrageous.

First, we must determine whether the court properly construed the allegations of the plaintiffs complaint. The plaintiff captioned count three of his amended complaint “infliction of emotional distress.” In its memorandum of law in support of its motion for summary judgment, the defendant treated the plaintiffs allegations as asserting a claim for intentional infliction of emotional distress. The plaintiff responded in his objection to the motion that the defendant’s conduct was sufficient to support a cause of action for both intentional and negligent infliction of emotional distress. In its memorandum of decision, the court agreed with the defendant and construed the complaint as alleging a claim of intentional infliction of emotional distress.

“[T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 562, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). “Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Emphasis added.) Hill v. Williams, 74 Conn. App. 654, 655, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003).

In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Carnemolla v. Walsh, 75 Conn. App. 319, 331, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003).

As to count three, the plaintiff alleged the following. “On December 15, 2003, the plaintiff reported as instructed to the defendant’s place of business, where he was kept waiting and not permitted to start his job, and ultimately told he would not be permitted to start his job for reasons no one had the decency or inclination to explain adequately to him. . . . The defendant . . . knew that its conduct . . . was outrageous and involved an unreasonable risk of causing distress to the plaintiff. . . . The defendant knew that the distress of being deprived of a means of livelihood . . . coming on the eve of Christmas, for a man with two small children, might result in illness, depression, despondency or bodily harm. ... As a result of the defendant’s conduct, the plaintiff suffers from mental stress and fatigue, and physical ache and weariness . . . .” (Emphasis added.) On the basis of our plenary review, we agree with the court that the plaintiffs complaint alleged a claim of intentional infliction of emotional distress, given that the plaintiff described the defendant’s conduct as outrageous and claimed that the defendant knew its conduct would inflict emotional distress on the plaintiff.

We must examine next whether when viewing the evidence in the light most favorable to the plaintiff, the defendant was entitled to summary judgment. The court concluded that, as a matter of law, the defendant’s conduct was not extreme and outrageous. We agree with the court.

“Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury. . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society. . . .

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient . . . .” (Citation omitted; internal quotation marks omitted.) Carnemolla v. Walsh, supra, 75 Conn. App. 331-32.

Here, as emphasized previously, in terminating the employment relationship, the defendant was exercising the rights it expressly had reserved in the letter. As a result, when viewing the evidence in the light most favorable to the plaintiff, although the conduct alleged in this case may very well have been hurtful and caused distress, it was not extreme and outrageous, as a matter of law. See Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000) (extreme or outrageous conduct not found where plaintiff subjected to psychiatric evaluations, condescending comments made by employer, escorted off employer’s premises by police and forced to resign); Muniz v. Kravis, 59 Conn. App. 704, 709, 757 A.2d 1207 (2000) (defendant’s conduct in sending armed guard to notify plaintiff and her husband of termination when husband recovering from surgery not extreme and outrageous). The court properly granted the defendant’s summary judgment motion as to the claim of infliction of emotional distress.

The judgment is affirmed.

In this opinion HARPER, J., concurred.

PELLEGRINO, J.,

concurring. Although I agree that the judgment must be affirmed, I respectfully disagree with the majority’s conclusion in part II of the opinion that the factual allegations by the plaintiff, Kevin Petitte, with regard to his negligent misrepresentation claim, failed to rise to the level of a legally viable claim. I conclude, instead, that the trial court properly rendered summary judgment as to the negligent misrepresentation count of the plaintiffs amended complaint because, although the facts alleged stated a cause of action, there was insufficient evidence to establish the existence of a genuine issue of material fact as to whether the defendant, DSL.net, Inc., made “false representations” to the plaintiff. I would, therefore, affirm the judgment of the trial court on that ground.

“Our Supreme Court has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Mokonnen v. Pro Park, Inc., 96 Conn. App. 625, 632-33, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006). “[A]n action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.” Nazami v. Patrons Mutual Insurance Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).

In count two of the amended complaint, the plaintiff alleged: “The statement by the defendant to the plaintiff of an offer to join the defendant . . . with a start date of December 15, 2003 was false . . . and the defendant knew, or in the exercise of reasonable care as an employer should have known at the time it made such representations that they were false. . . . The plaintiff relied on the untrue representations of the defendant, and quit his existing job to start work with the defendant, which resulted in the permanent forfeiture of that job ... . The plaintiff suffered pecuniary loss as a result of his reliance on the defendant’s negligent misrepresentation, which pecuniary loss includes the loss of his income, commissions, and benefits . . . .”

The plaintiff also submitted an affidavit in opposition to the defendant’s motion for summary judgment in which he attested that there was an assumption that he was to be hired, that he had a firm offer of employment and that having relied on these representations, he quit his previous job. The plaintiff further attested that the false representation was that there was a job available to him, when, in fact, there was none. I believe that on the basis of the facts alleged and the evidence submitted, the plaintiff stated a cause of action for negligent misrepresentation.

The plaintiffs evidence, however, although sufficient to establish a legally viable claim, was insufficient to suivive the defendant’s motion for summary judgment. The plaintiff did not allege an adequate factual predicate to raise a genuine issue of material fact as to whether the defendant’s representations were false. Cf. Miller v. Bourgoin, 28 Conn. App. 491, 498, 613 A.2d 292 (“it remains incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law, that a genuine issue of material fact exists” [internal quotation marks omitted]), cert. denied, 223 Conn. 927, 614 A.2d (1992). The plaintiff merely alleged that the defendant made false representations by informing him that he was hired despite the fact that the defendant knew it had not consulted his references. The plaintiff alleged that the defendant’s offer letter of December 10,2003, contained statements that were false. The trial court, however, found that there were no statements in the offer letter that were false. Additionally, in his affidavit in opposition to the defendant’s motion for summary judgment, the plaintiff did not refer to any statements in the offer letter that were “false.” When opposing a motion for summary judgment, it is not enough for the plaintiff merely to assert the existence of a disputed issue. See Branford v. Monaco, 48 Conn. App. 216, 222, 709 A.2d 582 (“[m]ere assertions of fact . . . are insufficient to establish the existence of a material fact” [internal quotation marks omitted]), cert. denied, 245 Conn. 903, 719 A.2d 900 (1998).

Unfortunately, given the “at-will” termination provision in the defendant’s offer letter that permitted termination for any reason with or without cause, the defendant had the absolute right to rescind its offer at any time. As reprehensible as the defendant’s conduct in this case might have been in offering employment with the knowledge that the plaintiff would terminate his current job in reliance thereon, and then withdrawing that offer before employment actually commenced, the defendant did so within its rights in accordance with the at-will employment relationship it had with the plaintiff. I agree with the trial court’s conclusion that the offer of employment, “while arguably illusory, was not false.”

I would, therefore, affirm the decision of the trial court with regard to the count of negligent misrepresentation on the ground that there was insufficient evidence to establish a genuine issue of material fact with regard to the defendant’s alleged false representations.

In all other aspects of the majority’s opinion, I concur.

       We note that the court indicated after discussing this count that “[t,]he court’s rulings in this and other aspects of this opinion should not be construed as approval of [the defendant’s] conduct toward the plaintiff. It is apparent that he received shoddy treatment. The court’s role, however, is not to determine whether [the defendant] acted honorably but rather whether [its] acts were tortious.”

       Connecticut recognizes two types of emotional distress claims, intentional infliction of emotional distress; see Carnemolla v. Walsh, 75 Conn. App. 319, 331-32, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); and negligent infliction of emotional distress. See Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003).

       We acknowledge that the plaintiffs allegations include language not inconsistent with a claim of negligent infliction of emotional distress. See Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003) (“in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm” [internal quotation marks omitted]).
      The fact remains, however, that the plaintiff failed to allege the distinct torts as separate causes of action in his complaint, as required by our rules of practice. See Practice Book § 10-26 (“[w]here [there are] separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction . . . the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one”).


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARTIN V.

    (AC 26870)
    Gruendel, Harper and Berdon, Js.
    Argued January 10
    officially released July 17, 2007

      Annacarina Del Mastro, senior assistant public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

BERDON, J.

The defendant, Martin V., appeals from the judgments of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that the trial court (1) improperly admitted evidence of prior uncharged misconduct by taking judicial notice of a court order prohibiting him from having contact with his daughters, the victims, and (2) gave an improper explanation of the constancy of accusation doctrine to the jury. We affirm the judgments of the trial court.

This case involves the alleged sexual abuse by the defendant of his three minor daughters, M, S and A, over the course of several years. Between March and November, 2002, three complaints were received by the department of children and families (department) that the defendant physically (but not sexually) abused family members. Sometimes the defendant would strike M so hard with a belt that it left marks on her back. The children were frightened of him. Following the third complaint in November, 2002, the department removed the children from the defendant’s home and placed them in foster care. Despite the history of physical abuse, the department planned to reunite the family.

On February 21, 2003, three months after placement in foster care, the daughters first claimed they previously had been sexually abused by their father. M told her foster mother and a social worker, Betsy Dela Cruz, that the defendant had sexually abused her and her sisters. M testified at trial that the defendant had vaginal sexual intercourse with her on a daily basis when she was between twelve and fourteen years old. S testified that the defendant had both vaginal and anal intercourse with her many times when she was between ten and twelve years old. A testified that the defendant had touched her private parts. The defendant was arrested and charged pursuant to these allegations.

The principal evidence against the defendant was the testimony of the victims. There was no physical evidence presented to corroborate the victims’ stories. The state’s medical expert, Elaine Yordan, physically examined the victims. She testified that none of the girls had scarring, lesions or transsection of the hymenal rim, despite allegations from M and S that they had been subjected to frequent vaginal and anal intercourse. Yor-dan testified that her findings neither proved nor disproved sexual abuse. She explained that the absence of scarring and lesions could have been the result of the length of time between the last opportunity for abuse and the examinations. The absence of damage to the hymenal rim may have been because M and S had started menstruating before the abuse started, which would physiologically allow a girl’s hymen to elasticize and prevent such injury. Yordan stated that her findings could equally support conclusions that the girls were or were not sexually assaulted.

During trial, the state requested that the court take judicial notice of the existence of a protective order prohibiting any contact between the defendant and his daughters. The court deferred judgment on that request until further evidence was offered. Subsequently, the state offered into evidence two letters purportedly written by the defendant to M at some time after the daughters had been placed in foster care and had made the allegations of sexual abuse. M testified that the letters were delivered by her mother, but the handwriting was the defendant’s. The content of the letters also made specific reference to the author’s being the defendant. The court admitted the letters into evidence, without objection, as relevant to show the defendant’s consciousness of guilt. One letter stated: “I’m paying for being bad with you . . . .” The second letter instructed: “[W]hen you read this letter tear it up so they won’t find you with it.” After the letters were read into evidence, the court reconsidered the state’s request that the court take judicial notice of the no contact order. The court found that the no contact order was relevant to put the letters in context and that its probative value outweighed its prejudicial nature. Over the defendant’s objection, the court took judicial notice of the existence of the no contact order barring the defendant from having any contact with his daughters.

I

The defendant claims that the court abused its discretion by taking judicial notice of the no contact order because the order, taken together with the letters written by the defendant, amounted to evidence of uncharged misconduct that was improperly admitted. The defendant argues that by taking judicial notice of the no contact order, the court improperly allowed the introduction of evidence that was not relevant to prove any of the recognized exceptions to the admissibility of uncharged misconduct and improperly prejudiced him.

As a general rule, “evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad ehmcteT ot foi eiimmal b vhavvoi.’ ’ (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 659-60, 835 A.2d 895 (2003); see also Conn. Code Evid. § 4-5 (a). “In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect . . . .” (Internal quotation marks omitted.) State v. Merriam, supra, 661. “The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Kulmac, 230 Conn. 43, 61, 644 A:2d 887 (1994).

Under the first prong of the test, the evidence must be relevant for a purpose other than showing the defendant’s bad character or criminal tendencies. State v. Merriam, supra, 264 Conn. 660-61. Recognized exceptions to this rule have permitted the introduction of prior misconduct evidence “to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” Conn. Code Evid. § 4-5 (b). The list of exceptions provided in the code of evidence is not exclusive but rather is intended to be illustrative. Id., § 4-5 (b), commentary. Our Supreme Court has also recognized an exception for prior misconduct evidence admitted to “complete the story of the charged crime by placing it in the context of nearby and nearly contemporaneous happenings.” (Internal quotation marks omitted.) State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995).

The court found that the no contact order was relevant to put in context statements made in the defendant’s letters to the victims. As to the relevancy of the no contact order for this purpose, the court stated: “It seems to me that under the circumstances, if the fact of this—the existence of this order, is considered by the jury in connection with the letter, that [the jury] could fairly put in context those statements if [the jury] drew the inference, which I think is available from the letter, that it was sent for the purpose of making illicit contact and potentially influencing [the victims] to go easy on him so that his problems wouldn’t increase or continue.” There simply is no basis for that determination.

There is no dispute that the letters evinced consciousness of guilt and therefore were relevant in determining whether the defendant sexually assaulted his daughters. See State v. Schmidt, 92 Conn. App. 665, 675, 886 A.2d 854 (2005), cert. denied, 277 Conn. 908, 894 A.2d 989 (2006). The no contact order, in turn, was relevant to the defendant’s state of mind in sending the letters and making the statements therein. Prior misconduct evidence admitted under § 4-5 of the Connecticut Code of Evidence must not only be generally relevant, but must be “relevant and material to at least one of the circumstances encompassed by the exceptions”; (internal quotation marks omitted) State v. Merriam, supra, 264 Conn. 661; here, to complete the story of the charged crimes and to put other evidence in context. The only story that is completed and the only crime put in context by this evidence was the defendant’s violation of the no contact order. It is trae that evidence of the no contact order helped the jury understand the contents of the letters, which instructed M to tear up the letters and not show them to anyone. Such an understanding does nothing to make it more or less likely that the defendant committed the sexual assaults without the impermissible inference that his criminal tendency to violate the no contact order made it more likely that he committed the charged crimes. See Conn. Code Evid. § 4-5. Accordingly, we conclude that the no contact order amounted to evidence of uncharged misconduct that was not sanctioned by our rales and should not have been admitted into evidence.

We next consider whether the defendant has satisfied his burden of proving that the admission of the uncharged misconduct evidence constituted harmful error. The defendant bears the burden of showing that a nonconstitutional evidentiary error, such as the improper admission of prior uncharged misconduct here, was harmful. See State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006). A nonconstitutional error is harmless when “an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) Id., 357. “In reviewing the case, we consider a number of factors, namely, the overall strength of the state’s case, the impact of the improperly admitted or excluded evidence on the trier of fact, whether the proffered evidence was cumulative, and the presence of other evidence corroborating or contradicting the point for which the evidence was offered.” State v. Calabrese, 279 Conn. 393, 412, 902 A.2d 1044 (2006). When the court improperly admitted uncharged misconduct evidence, “the most relevant factors to be considered are the strength of the state’s case and the impact of the improperly admitted evidence on the trier of fact.” State v. Sawyer, supra, 358.

Our Supreme Court has recognized that sexual assault cases are not strong when there is no conclusive physical evidence and the victim is a minor. State v. Ritrovato, 280 Conn. 36, 57, 905 A.2d 1079 (2006). In the present case, three minor victims testified with consistent stories. In addition to the testimony of the three victims, the state presented the letters written by the defendant to one of his daughters as evidence of the defendant’s consciousness of guilt. Without any physical evidence of the assaults, we cannot characterize the state’s case as extremely strong, although it was sufficient to support the jury’s verdict. See State v. Dews, 87 Conn. App. 63, 73, 864 A.2d 59 (“[t]he testimony of [two minor victims] that the defendant touched their genitals was sufficient evidence for the jury to determine that the defendant committed sexual assault”), cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

The improperly admitted misconduct evidence did nothing to bolster the state’s case or impact the jury’s decision making. The defendant argues that evidence of the no contact order permitted the jury to infer that he had previously committed similar acts of sexual abuse against his daughters as charged in the present case. There is no reason to assume that the jury would have made such an inference. The court guarded against any such prejudice caused by the order by describing it as “a standard order in cases such as these . . . .” This description minimized the defendant’s concern that the order could imply that the defendant had committed similar acts of sexual abuse. Also, the jury reasonably could infer that the order was directly related to the charged crimes because it was issued shortly after allegations of sexual abuse were made.

Through evidence that there was a no contact order, it was also possible for the jury to infer that the defendant had engaged in illegal conduct by sending letters to his daughter. Even if the jury made such an inference, this evidence does not have “a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury . . . .” (Internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 367-68, 852 A.2d 676 (2004). In this case, in which the jury heard testimony that the defendant frequently had vaginal and anal intercourse with his daughters and physically abused his daughters, wife and mother, there is little risk that evidence of the comparatively minor offense of violating a no contact order by sending two letters would have a tendency to excite the passions, awaken the sympathy or influence the judgment of the jury. Further, the relative unimportance of the evidence of the no contact order is highlighted by the fact that neither the state nor the defense mentioned it in closing arguments.

Indeed, evidence of the no contact order may have mitigated the damaging effect of the letters, providing some benefit to the defense. The letters were admitted without objection as evidence of the defendant’s consciousness of guilt, in part, because in the letters the defendant apologized for his conduct. The suggestion is that the defendant wanted his daughter to hide the letters because they contained an implicit admission of guilt as to the sexual assault and risk of injury charges. When this statement in the letter is combined with the no contact order, however, the jury could have inferred that the defendant sought to avoid detection of the letters because they were in violation of the no contact order, a somewhat more benign reason.

In comparison, in State v. Jacobson, 87 Conn. App. 440, 454-55, 866 A.2d 678, cert. granted, 273 Conn. 928, 873 A.2d 999 (2005), the court found that certain improperly admitted evidence of prior misconduct was harmless. There, the court held that it was improper to admit a mother’s testimony that her son, who was not the victim of the sexual assault crimes on trial, had stayed overnight at the defendant’s home and slept in the same bed with him. Id., 455. The evidence was harmless because it was limited in quantity, and the mother never alleged that the defendant had abused her son. Id. Therefore, the evidence of prior misconduct did not have “a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury . . . .” (Internal quotation marks omitted.) Id.

Because the state presented a sufficiently strong case through the testimony of the children and the improperly admitted misconduct evidence had at best a minimal impact on the jury, we hold that the error was harmless.

II

The defendant claims that the court gave an incorrect explanation of the constancy of accusation doctrine in the limiting instruction and final charge to the jury. The defendant argues that the instructions improperly permitted the jury to use constancy testimony to determine the credibility of the victims generally, not simply their credibility as to the fact that they reported the sexual abuse. We hold that the instruction properly limited the jury’s use of constancy evidence.

The state presented two witnesses, Déla Cruz and Lisa Murphy-Cipolla, as constancy of accusation witnesses. Déla Cruz testified that on February 21, 2003, M told her that the defendant had previously sexually abused M, S and A. Murphy-Cipolla, a clinical child interview supervisor at Saint Francis Hospital and Medical Center, testified that she interviewed M, S and A on March 4, 2003. Murphy-Cipolla testified that during these three separate interviews, each girl disclosed having been sexually abused by the defendant. Following the testimony of Déla Cruz and Murphy-Cipolla, and in its final charge, the court gave limiting instructions as to the use of constancy of accusation evidence. The defendant objected to these instructions, arguing that the charge improperly instructed the jury that constancy testimony could be used to assess the credibility of the witnesses.

“From its inception, the underlying purpose of the [constancy of accusation] doctrine has been to combat prejudiced notions about the credibility of sexual assault victims by allowing the state to demonstrate that the victim had reported the assault to persons in whom she naturally would confide.” (Internal quotation marks omitted.) State v. Hawkins, 51 Conn. App. 248, 254-55, 722 A.2d 278 (1998), cert. denied, 281 Conn. 901, 916 A.2d 46 (2007). This is the only situation in which Connecticut. “permit[s] prior consistent statements to be introduced to accredit a witness’s testimony.” (Internal quotation marks omitted.) State v. Troupe, 237 Conn. 284, 302 n.17, 677 A.2d 917 (1996); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.37.

Our Supreme Court limited the use and scope of the constancy of accusation doctrine in Troupe by restricting such testimony by a person in whom the victim confided to details of the fact and timing of the victim’s complaint and such details surrounding the assault as are necessary to associate the victim’s complaint with the pending charge. State v. Troupe, supra, 237 Conn. 304. In Troupe, the court held that instructions to the jury that testimony of a constancy witness was admissible solely to assist the juiy in assessing the victim’s credibility, and not as substantive proof of the alleged sexual assault, were proper. Id., 290 n.6.

In this case, the testimony of Déla Cruz and Murphy-Cipolla was limited to the fact and timing of the victims’ complaints. Following that testimony, the jury adequately was instructed that the testimony of these constancy witnesses regarding out-of-court statements made by the victims could be used only to evaluate the credibility of the victims, not for substantive purposes. The court properly limited the scope of the testimony of constancy witnesses and instructed the jury as to the limited use of such testimony.

The judgments are affirmed.

In this opinion the other judges concurred.

       We note that the defendant was found guilty of three counts of risk of injury to a child in connection with acts that occurred between November, 1999, and November, 2002. Although the acts that occurred between November, 1999, and January, 2001, were covered by General Statutes (Rev. to 1999) § 53-21 (2), and the acts that occurred between and January, 2001, and November, 2002, were covered by General Statutes (Rev. to 2001) § 53-21 (a) (2) and General Statutes (Rev. to 2001) § 53-21 (a) (2), as amended by Public Acts 2002, No. 02-138, § 4, those provisions are identical. In the interest of simplicity, we refer to the current revision of the statute, which is the same as the provisions under which the defendant was convicted.

       At the time of trial, M, S and A were ages seventeen, fourteen and ten, respectively.

       Testimony was given at trial that the defendant frequently physically abused M and S, as well as his wife and mother.

       Defense counsel argued at trial that the victims had fabricated the allegations of sexual abuse in order to remain in foster care, safe from the physical abuse inflicted by the defendant.

       The original letters were written in Spanish. English translations were entered into evidence, and the parties stipulated to the authenticity of the translations.

       “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1.

       The court stated: “I am taking judicial notice of the fact that on and after March 7, 2003 . . . the defendant was subject to a standard order in cases such as these that he have no contact with any of his three daughters in any manner. That is the fact that I am taking judicial notice of.”

       The defendant, in an additional claim, urges this court to modify or replace the constancy of accusation doctrine to preclude application when the victims are children. The defendant requests review of this unpreserved claim under the plain error doctrine and requests invocation of this court’s broad supervisory powers. Although we recognize that the ago of the victim is an important consideration in assessing the voluntariness of the victim’s report of sexual abuse; see State v. Troupe, 237 Conn. 284, 320, 677 A.2d 917 (1996) (Berdan, J., concurring); our Supreme Court has left the admissibility of constancy evidence to the broad discretion of the trial court, which must balance the probative value of the evidence against any prejudice to the defendant. Id., 304-305. The court has done that here. Therefore, we decline to afford plain error review to the defendant’s claim and will not invoke the extraordinary remedy of our supervisory powers to further trim the sails of the constancy of accusation doctrine.

       The defendant also argues that the jury instructions did not adequately explain the difference between substantive and corroborative evidence and did not inform the jury that it could consider the victims’ delay in reporting the abuse. At trial, the defendant never objected to the instructions on these grounds and did not file a request to charge on the use of constancy testimony. Therefore, these claims are unpreserved, and we will not review them. See State v. Pereira, 72 Conn. App. 107, 112-14, 806 A.2d 51 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

       After Déla Cruz testified, the court instructed the jury: “This testimony that you have heard with respect to out-of-court statements by the two girls, [M] and [S], is admitted before you not to prove the truth of the contents of their statements, of their out-of-court statements, but to corroborate the fact that at a certain period of time, they made a complaint. As you may consider that evidence bearing upon their credibility here and thus to corroborate their testimony, their description of what they claim to have happened will rest upon its own footing. This testimony, then, goes only to their credibility as people who made a complaint. It is not a substitute in substance for whatever they say, and it may not be considered for substantive purposes.”
      After Murphy-Cipolla’s testimony the court gave the following instruction: “[W]ith this testimony as with the testimony of the other witness yesterday whom I instructed you on, this is not being offered for the truth of its contents. This testimony is being offered to show that these statements were made, if you conclude in fact that they were made. They are introduced solely to corroborate the complaint and to indicate that there was a time when this complaint that underlies this action was brought. It will be for you to determine whether or not to credit the testimony. You’re to determine how to assess it, you’re to determine whether or not in fact it corroborates anything that has been testified to by any of the witnesses. And that you will do as part of your obligation to assess the credibility of the witnesses when it comes time for deliberation. But none of the particulars that were said are introduced to prove the truth of any of those statements because that, of course, would be hearsay.”
      During the final charge to the jury, the court stated: “Evidence was presented as to certain out-of-court statements allegedly made by some of the complainants to a [department] social worker, Betsy Déla Cruz, and a forensic interviewer associated with the children’s center at Saint Francis Hospital [and Medical Center], Lisa Murphy, concerning the time, place and general nature of the defendant’s alleged sexual abuse of them. These statements were not admitted into evidence to prove the truth of their contents, but only to corroborate the witness’ trial testimony and, thus, to affect their credibility, if you choose to so regard them. Thus, they cannot lawfully be used for any other purpose in the course of your deliberations.”


author: DUPONT, J.

text:
    JUAN VASQUEZ v. THE SUPERIOR COURT OF THE STATE OF CONNECTICUT, HARTFORD JUDICIAL DISTRICT
    (AC 28248)
    Bishop, Harper and Dupont, Js.

      Argued March 13
    officially released July 17, 2007

      Aaron J. Romano, with whom, on the brief, was Cynthia M. Femandez-Romano, for the plaintiff in error.

      Robert J. Deichert, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the defendant in error.
   Opinion

DUPONT, J.

The primary issue posed by the plaintiff in error, Juan Vasquez (the plaintiff), in connection with his writ of error, is whether the trial judge, before whom the allegedly contemptuous behavior had occurred, could punish him for summary criminal contempt pursuant to General Statutes § 51-33 when he had been charged by information on the same date with a violation of General Statutes § 51-33a, and, according to the judgment file, found guilty of the latter statute, on the basis of the same behavior. A resolution of the issue requires plenary review of both statutes, relevant rules of practice, decisional law and the particular undisputed facts. No case of which we are aware has directly answered the question.

I

The writ of error claimed various alternative relief, namely, a reversal of the judgment of summary criminal contempt, the entry of judgment of not guilty or a new trial before a jury and a different judge, or a reduction in the sentence imposed. The plaintiffs appellate brief sought vacation of the conviction. His reply brief sought dismissal of the “matter” on the ground that subject matter jurisdiction was lacking for the judge’s finding and punishment for summary criminal contempt.

The first question is whether jurisdiction exists in this court to entertain the writ of error, as the appropriate vehicle for the claimed relief sought by the plaintiff on the facts of this unusual case. Whether we have jurisdiction to entertain the writ depends on our analysis of whether the trial judge properly conducted a summary criminal contempt proceeding pursuant to § 51-33.

The plaintiffs claim is that no subject matter jurisdiction existed to allow the judge to conduct a summary proceeding pursuant to § 51-33 when an information simultaneously alleged a violation of § 51-33a, a non-summary proceeding. We begin our analysis by stating the obvious. The court had the power, or jurisdiction, to hear the general class of case, a summary criminal contempt pursuant to § 51-33. The plaintiff conceded this at oral argument.

Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented to it. It exists if the court has the power to hear and deteimine cases of the general class to which the particular proceeding belongs. Statewide Grievance Committee v. Burton, 282 Conn. 1, 6-7, 917 A.2d 966 (2007); Sastrom v. Psychiatric Security Review Board, 100 Conn. App. 212, 216-17, 918 A.2d902 (2007). If atribunal has the authority to decide the class of case, the issue of jurisdiction should be resolved in favor of its existence. Spencer v. Star Steel Structures, Inc., 96 Conn. App. 142, 150, 900 A.2d 42, cert. denied, 280 Conn. 914, 908 A.2d 539 (2006).

Subject matter jurisdiction should not be confused with the scheduling of a case, or its assignment to a particular judge, which may relate to a recusal of a judge for bias or prejudice or statutory incapacity, as provided in § 51-33a. The trial judge in this case had the power to conduct a summary criminal contempt hearing immediately, pursuant to § 51-33 or to postpone a criminal contempt hearing, pursuant to § 51-33a, if he deemed it necessary. See Practice Book §§ 1-16 through 1-19. Recusal relates to the impropriety of a particular judge to listen to a particular case because of bias that places the judge’s impartiality in question. LaBow v. LaBow, 13 Conn. App. 330, 333-34, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). Recusal may also be statutory, as provided in § 51-33a and in the statute’s amplification in Practice Book §§ 1-17 and 1-19. Recusal, the disqualification of a particular judge, is unrelated to jurisdiction, the power to hear a particular type of case.

In this case, if § 51-33a applied, the recusal would be a mandatory statutory disqualification of a particular judge, unrelated to the general power of the Superior Court to hear that particular class of case. Here, the judge had jurisdiction to hear both § 51-33 and § 51-33a cases. The question for the judge was which statutory avenue to pursue, one resulting in a summary proceeding or the other in a postponement of the matter, to be heard by another judge. Because none of the conditions outlined in Practice Book § 1-17 applied, there was no reason for recusal, and the judge proceeded with a summary criminal contempt proceeding, pursuant to Practice Book § 1-16 and General Statutes § 51-33.

Before describing the facts that illuminate the case, we note that the plaintiff admits that no claim or motion for a continuance of the summary criminal contempt proceeding was made on the basis of the fact that the information charged a violation of § 51-33a, thereby arguably precluding a summary criminal contempt proceeding, pursuant to § 51-33. He correctly claims, however, that a jurisdictional argument may be raised at any time. See Manifold v. Ragaglia, 94 Conn. App. 103, 117, 891 A.2d 106 (2006).

Certain facts are relevant to a determination of our jurisdiction to afford relief by way of a writ of error. The plaintiff was in court to argue his motion to withdraw his guilty pleas on the day the behavior occurred. The transcript reveals that immediately after the court denied the plaintiffs motion to withdraw his pleas, he struck his counsel, attorney Michael Isko, causing him to fall beneath the prosecutor’s table in the courtroom. Prior to the denial of the motion, the plaintiff had complained to the court about the advice and performance of his counsel and had stated that he should be able to withdraw his plea because of “ [ineffective assistance of counsel . . . .” The plaintiff had previously referred his complaint about his counsel to the statewide grievance committee. He told the court that his counsel was “in direct violation of the attorney’s oath and numerous, numerous rules of the professional conduct . . . .” Immediately after striking his counsel, the plaintiff stated: “Fucking ass motherfucker. I’m going to fuck your ass up, man. Let me go, man.” The ensuing events and comments of the court are best described by quoting from the transcript.

During the afternoon, on the same day, different counsel, Aaron J. Romano, a special public defender, appeared for the plaintiff. At that time, the plaintiff was willing to come into the courtroom of his own accord. Continuing with the matter, the judge noted that he had put certain observations on the record during the morning session when the behavior of the plaintiff occurred but did not elaborate then because the plaintiff and his counsel were not present.

After the punishment was imposed by the court, the plaintiff was faced with a procedural dilemma with regard to his next step if he chose to contest his sentence of six months to serve in jail. If he filed a direct appeal, claiming that he was denied the rights to cross-examine and to present evidence and other guarantees of due process as provided for in nonsummary criminal contempt proceedings brought pursuant to § 51-33a, he risked dismissal on the ground that he should have brought a writ of error because he sought redress arising from a judgment of summary criminal contempt rendered pursuant to § 51-33. See State v. Melechinsky, 36 Conn. Sup. 547, 550-51, 419 A.2d 900 (1980). If he opted to bring a writ of error, as he did, he risked dismissal of it by this court because he should have filed a direct appeal from the judgment of guilty in violation of § 51-33a, as stated in the judgment file. See State v. Murray, 225 Conn. 355, 623 A.2d 60, cert. denied, 510 U.S. 821, 114 S. Ct. 78, 126 L. Ed. 2d 46 (1993).

Paragraph three of the writ of error provides that the original charges underlying the proceedings during which the contempt was committed were two counts of solicitation to commit robbery in the first degree and assault in the first degree to which he had pleaded guilty under the Alford doctrine. Paragraph seventeen states that the plaintiff “claims his right to this writ of error on the basis that [our Supreme Court] has held that the writ of error is the only means by which review of a judgment of summary criminal contempt may be obtained.” Paragraph 18 (g) states that the court “erred in finding the [plaintiff] in criminal contempt in violation of ... § 51-33a where the proper procedure as delineated by the statute requires that charge to be tried by a different judge.” Thus, the plaintiff simultaneously refers to both the judgment of summary criminal contempt, a violation of § 51-33, which had actually been rendered and the “paper” judgment pursuant to § 51-33a, as stated in the judgment file.

A writ of error is a separate and distinct review procedure, not to be confused with a statutory appeal. C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 9.1. If there is a right to appeal, a writ of error should not be brought; id., § 9.3; Practice Book § 72-1 (b); but if a summary criminal contempt is found, there is no right to an appeal; see C. Tait & E. Prescott, supra, § 9.4 (b); and a writ of error must be sought. Martin v. Flanagan, 259 Conn. 487, 494, 789 A.2d 979 (2002); Banks v. Thomas, 241 Conn. 569, 585, 698 A.2d 268 (1997); Ullmann v. State, 230 Conn. 698, 703, 647 A.2d 324 (1994); Wilson v. Cohen, 222 Conn. 591, 595, 610 A.2d 1177; Jackson v. Bailey, 221 Conn. 498, 500, 605 A.2d 1350, cert. denied, 506 U.S. 875, 113 S. Ct. 216, 121 L. Ed. 2d 155 (1992); In re Dodson, 214 Conn. 344, 346, 572 U.S. 328, cert. denied sub nom. Dodson v. Superior Court, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990); Naunchek v. Naunchek, 191 Conn. 110, 113, 463 A.2d 603 (1983).

A summary adjudication pursuant to § 51-33 is a punishment and must be immediate, peremptory and not subject to suspension by a full range of appellate review. McClain v. Robinson, 189 Conn. 663, 669-70, 457 A.2d 1072 (1983). If the contempt occurs in the presence of the court, there is no written charge or complaint, the court from necessity is its own judge of the contempt, and the punishment is not subject to the full range of claims ordinarily available on direct appellate review. Id.; see also Moore v. State, 186 Conn. 256, 259, 440 A.2d 969 (1982). Summary criminal contempt proceedings, therefore, are not the functional equivalent of criminal prosecutions and do not require an information or any written charge. The summary nature of the proceeding is further exemplified by the fact that a review of such a proceeding may be had only by writ of error; see, e.g., Martin v. Flanagan, supra, 259 Conn. 494; which need not be answered and does not require any pleadings in opposition. Practice Book § 72-3 (h).

Section 51-33 gives jurisdiction to a court summarily and immediately to punish contempts occurring in its presence when a person behaves contemptuously or in a disorderly manner, whereas § 51-33a serves a different puipose, namely, the need for a continuance in some instances, as outlined in Practice Book § 1-17, in which event, the matter should be tried by a different judge. Moore v. State, supra, 186 Conn. 260; see also Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971); Practice Book § 1-19. The two statutes overlap and allow a court either to resolve the matter summarily pursuant to § 51-33 or to defer action in some instances pursuant to § 51-33a. The former applies to proceedings conducted immediately or soon after the conduct has occurred and requires no information or written charge, whereas the latter applies to postponed proceedings, requiring the usual panoply of procedural safeguards and pleadings. See Wilson v. Cohen, supra, 222 Conn. 604; Naunchek v. Naunchek, supra, 191 Conn. 114-15 (discussion of difference between §§ 51-33 and 51-33a).

Contempts may be civil or criminal; Practice Book § 1-13A (b); and may be adjudicated summarily or non-summarily. In the present case, the court clearly had jurisdiction to proceed under § 51-33 because the behavior was legally a contempt, the punishment was authorized and the judicial authority was qualified. See Jackson v. Bailey, supra, 221 Conn. 500. If there is no need for immediate action, the judicial authority may postpone the matter, as provided in § 51-33a. Id., 514; see also Practice Book § 1-17. On the basis of our review of the transcript, we conclude that none of the conditions for deferral existed here. If the deferral is not mandated by § 51-33a or the rules of practice governing nonsummary criminal contempt, § 51-33 governs the contempt of court proceedings. State v. Murray, supra, 225 Conn. 366. The two statutes coexist with jurisdiction to punish pursuant to either but do not logically allow the same contemnor to be guilty of both for the same behavior.

In Higgins v. Liston, 88 Conn. App. 599, 609, 870 A.2d 1137, cert. denied, 276 Conn. 911, 886 A.2d 425 (2005), cert. denied, 546 U.S. 1220, 126 S. Ct. 1444, 164 L. Ed. 2d 143 (2006), an information charged the plaintiff with a violation of § 51-33a, and the judgment file stated that he violated that statute. Higgins v. Liston, Conn. Appellate Court Records & Briefs, January Term, 2005, Record pp. 7, 11. The Higgins court, after noting these facts, decided that the trial court nevertheless could proceed to punish the contumacious behavior summarily pursuant to § 51-33; see Higgins v. Liston, supra, 609 n.6; and upheld the summary criminal conviction after a review of the contemnor’s writ of error. No claim was made in Higgins, as is made in this case, that the judgment file’s recitation of a violation of § 51-33a created a lack of jurisdiction to decide the matter summarily or to review the summary criminal contempt by way of a writ of error. In Higgins, the writ of error alleged that the judge was personally embroiled and that § 51-33a required that a charge of a violation of that statute must be tried by a different judge. In the present case, the plaintiff concedes that there was no personal attack on the judge, and, further, we have concluded on the basis of the judge’s remarks, that the judge intended to and did conduct a summary criminal contempt proceeding pursuant to § 51-33.

The Higgins decision resolved that a plaintiff does not have a due process right to be represented by counsel under the state and federal constitutions during a summary criminal contempt proceeding because the proceeding is not a criminal prosecution. Id., 613. “We will uphold a summary contempt conviction as long as the court that imposed the sentence possessed jurisdiction to do so.” Id., 615. Despite the fact that the plaintiff in Higgins was charged with, and the judgment file indicated a guilty finding of, a violation of § 51-33a; Higgins v. Liston, Conn. Appellate Court Records & Briefs, January Term, 2005, Record pp. 7,11; the punishment he received, after a summary contempt proceeding pursuant to § 51-33, was upheld, after a review of his writ of error.

In the present case, the plaintiff, the prosecutor and the judge were aware that the summary criminal contempt proceeding was being conducted as though any punishment would be imposed pursuant to § 51-33 and the pertinent rule of practice. The judge, in fact, imposed a punishment in accordance with that statute.

Summary criminal contempt is not a criminal offense requiring an information alleging the violation of a criminal statute. It is a unique, sui generis proceeding, not a criminal prosecution, with both statutory and common-law antecedents and not subject to the usual plethora of due process guarantees. When a proceeding is conducted as though it involved a particular legal theory with the knowledge and acquiescence of the parties and the judicial authority, the content of the judgment should be tested on that basis regardless of whether a complaining document alleged a different legal theory. See Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992); see also Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 563-64, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). This is particularly the case when no complaining document was required at all.

We use the Higgins holding and the civil case precedent to resolve the legal and procedural dilemma posed by the plaintiff in his writ of error. Here, there is a statutory variance between an unnecessary complaining document and a judgment file, and a judgment that was in fact rendered. No trial was ever held pursuant to the complaining document, and the judgment file erroneously refers to a violation as described in a complaining document for which no trial was ever held. We conclude, therefore, that the writ of error was the appropriate vehicle to attack the proceedings as conducted and that, accordingly, this court has jurisdiction to entertain the writ of error.

II

The plaintiff argues that he was denied due process of law because he was not allowed to cross-examine an adverse witness at the summary criminal contempt hearing and because he was denied a one week continuance to present “acquitting-mitigating” evidence.

The principles governing such a hearing may be succinctly stated. The trial judge has wide discretion in evaluating the facts and circumstances; see Ullmann v. State, supra, 230 Conn. 721; the decision of the judge to punish a contemnor quickly when the effective administration of justice requires an immediate judicial response cannot be overturned when there was no personal embroilment on the part of the presiding judge; Naunchek v. Naunchek, supra, 191 Conn. 117; the judge may punish the offender on his or her own motion, solely on facts within the judge’s knowledge; Wilson v. Cohen, supra, 222 Conn. 599; no witnesses other than the judge are required in proof of the contempt; McClain v. Robinson, supra, 189 Conn. 666; and the contemnor need not be represented by counsel during the § 51-33 hearing. Higgins v. Liston, supra, 88 Conn. App. 613.

The plaintiff was represented by counsel but was not allowed to cross-examine an assistant state’s attorney who had been permitted by the judge to testify as to what the assistant state’s attorney saw at the time of the plaintiff’s behavior, nor was the plaintiff allowed a one week continuance in order to resolve “intention” and “any mental health issues” arising from whether his medications were “right” or the “right dose.”

The judge could have punished the plaintiff solely on facts within the judge’s knowledge and did not need to allow others, such as the assistant state’s attorney, to recount their observations. The transcript as quoted herein; see footnotes 8, 9; amply supports the judge’s finding of contumacious behavior totally on the basis of his observations.

The one week deferral of proceedings, if granted, would have contravened the essence of the summary criminal contempt proceeding, namely, the necessity for a swift adjudication and resultant punishment for contemptuous or disorderly courtroom behavior. In view of the obstruction to the orderly administration of justice caused by the plaintiffs behavior, and witnessed by the judge, there was no reason for the deferral. None of the conditions listed in § 51-33a or Practice Book § 1-17 existed for a postponement of the proceedings. Furthermore, the judge had the opportunity to observe the plaintiffs mental condition to the time the plaintiff struck Isko and to hear the plaintiffs statements immediately after he knocked Isko down. The judge’s observations were sufficient for him to gauge whether the plaintiff had the requisite intent to behave as he did. On the basis of the judge’s observations, he could infer that the plaintiffs conduct was wilful, which constitutes the requisite intent for punishment of a contemnor pursuant to § 51-33. In re Dodson, supra, 214 Conn. 359.

Before the judge pronounced the sentence, he asked the plaintiff if there was anything he wanted to state for the record. The plaintiff used the opportunity to state why he did not like Isko and then to state that he had “deep mental health issues . . . ever since [he] dealt with this attorney.” He stated: “Isko should be here and my attorney should have—my attorney representing me now also should have at least a chance to cross-examine him.” When asked if there was anything else he wanted to say, the plaintiff continued to complain about Isko and when asked for the third time if there was anything else, the plaintiff stated: “Yeah, I want to apologize to the court, everybody who witnessed it, because it was uncalled for. It was rude. And it won’t happen again.” The judge asked for the fourth time if the plaintiff had anything else to say to which he responded, “no . . . .”

The judge concluded that the plaintiff blamed Isko for his predicament rather than himself. Prior to the judge’s finding the plaintiff guilty beyond a reasonable doubt of criminal contempt, the plaintiff continued to try to interject remarks about Isko while the judge was speaking. Other than a brief mention of his mental health condition as having been caused by Isko, the plaintiff did not indicate that his conduct was caused by anything other than his animosity toward his attorney.

The judge granted Romano’s motion for a continuance of the sentencing hearing for the plaintiff, although the judge denied any continuance of the summary criminal contempt hearing. The judge did not abuse his discretion by denying a continuance of a § 51-33 hearing. We agree with the court that no continuance, on the basis for which it was sought, was warranted.

Ill

Although the judgment file in this case recited a guilty finding by the court of a violation of § 51-33a in accord with the information, the judgment file is a clerical document and is not the judgment. Lehto v. Sproul, 9 Conn. App. 441, 445, 519 A.2d 1214 (1987). The pronouncement by the court, in this case a finding of punishment pursuant to § 51-33, is the judgment. See id. Judgment occurs when sentence is pronounced. The judgment file memorializes the judgment and is prepared and signed subsequent to the rendition of judgment. See State v. Moore, 158 Conn. 461, 466, 262 A.2d 166 (1969). In the present case, the judgment file was not signed by the judge. Because the judge had rendered judgment in accord with § 51-33, he would not have signed a judgment file indicating judgment rendered pursuant to § 51-33a. The judgment file is subject to a clerical correction to conform to what was, in fact, the judgment. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 200, 286 A.2d 308 (1971). Even if no judgment file was prepared, a judgment is valid if the parties are aware of the provisions of the judgment. DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 274, 471 A.2d 638 (1984).

In this case, the judgment file reflects a clerical error and does not correctly state the statutory reference or the actual decision of the judge. As such, we must order it corrected. Botass v. Botass, 40 Conn. App. 733, 739, 673 A.2d 129 (1996); Cioffoletti v. Planning & Zoning Commission, 34 Conn. App. 685, 689, 642 A.2d 1220, cert. denied, 230 Conn. 916, 645 A.2d 1018 (1994); Ravizsa v. Waldie, 3 Conn. App. 491, 493, 490 A.2d 90 (1985).

The judgment of summary criminal contempt is affirmed. The case is remanded for correction of the judgment file to conform it to the actual judgment rendered by the trial court, namely, a violation of § 51-33.

In this opinion the other judges concurred.

       The writ of error was addressed to the Superior Court as the defendant in error because it was brought “against a judge of the superior court to contest a summary decision of criminal contempt by that judge . . . .” Practice Book § 72-3 (c).
      Practice Book § 72-1 (a) provides in relevant part: “Writs of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court in the following cases ... (2) a summary decision of criminal contempt . . . .” The writ was transferred by our Supreme Court, pursuant to Practice Book § 65-1, to this court.

       General Statutes § 51-33 provides: “Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”

       General Statutes § 51-33a provides: “(a) Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.
      “(b) No person charged with violating this section may be tried for the violation before the same judge against whom the alleged contempt was perpetrated.”

       The information apparently was signed by the trial judge, but the judgment file was signed by the clerk of the court only. The information and the judgment file had the same date, which was the date of the summary criminal contempt finding and punishment by the trial judge. There is no indication in the record of the precise time the information or the judgment file was signed in relation to the time the summary proceeding was held, pursuant to which the plaintiff was punished for his behavior.

       The plaintiff also claims that he was denied due process of law because he was not allowed to cross-examine an adverse witness at the summary criminal contempt hearing and to obtain a one week continuance to present “acquitting-mitigating evidence.” This claim is discussed in part II.

       Practice Book § 1-16 amplifies General Statutes § 51-33 and provides for summary criminal contempt: “Misbehavior or misconduct in the court’s presence causing an obstruction to the orderly administration of justice shall be summary criminal contempt, and may be summarily adjudicated and punished by fine or imprisonment, or both. Prior to any finding of guilt, the judicial authority shall inform the defendant of the charges against him or her and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of summary criminal contempt by presenting evidence of acquitting or mitigating circumstances. Upon an adjudication, the judicial authority shall immediately impose sentence of not more than one hundred dollars, or six months imprisonment, or both for each contumacious act. Execution of any sentence during the pendency of a trial or hearing may be deferred to the close of proceedings.”
      Practice Book § 1-17 provides for the deferral of criminal contempt proceedings in some instances: “The judicial authority should defer criminal contempt proceedings when: (1) the misconduct does not rise to an obstruction to the orderly administration of justice; (2) the judicial authority has become personally embroiled; (3) the misconduct did not occur in the presence of the court; and (4) the judicial authority does not instantly impose summary criminal contempt upon the commission of the contumacious act. ”
      Practice Book § 1-18 provides: “A criminal contempt deferred under Section 1-17 shall be prosecuted by means of an information. The judicial authority may, either upon its own order or upon the request of the prosecuting authority, issue a summons or an arrest warrant for the accused. The case shall proceed as any other criminal prosecution under these rules and the General Statutes. The sentence shall be pronounced in open court and shall not exceed six months imprisonment or a fine of five hundred dollars, or both, for each contumacious act.”
      Practice Book § 1-19 provides: “The trial and all related proceedings upon which nonsummary contempt proceedings are based shall be heard by a judicial authority other than the trial judge or the judicial authority who had either issued the order which was later disobeyed or deferred criminal contempt proceedings under Section 1-17.”

       The plaintiff' concedes that the judge was not personally embroiled in the behavior of the plaintiff. The other three conditions for deferral did not exist. There was an obstruction to the orderly administration of justice, the misconduct did occur in the judge’s presence and the judge did impose summary criminal contempt, punishment.

       The transcript reads:
      “The Court: Take him out. Take him out.
      “The Marshal: We need assistance in Red Court.
      “The Court: Take him out.
      “([The plaintiff] removed from courtroom)
      “The Court: All right. Court is in session. Everybody be seated and be quiet. Now, I want everybody to be quiet. Mr. Isko, are you all right? Do you want—well, Mr. Isko is just leaving. But I want to put something on the record. He can augment it later on if he wishes to. . . .
      “I saw [the plaintiff] raise his hand, his right hand, Mr. Isko was to his right side, and he punched Mr. Isko in the face with his right hand, the arm closest to Mr. Isko. It was a solid hit. I’m not sure if I saw Mr. Isko go down or not. I think he went down.
      “I’ll allow—Mr. Isko left, and, apparently, he wants to compose himself. . . . The [plaintiff] was taken from the courtroom by force. . . .
      “Now, the court is going to continue on. I want everyone to remain quiet. . . .
      “Also the record will reflect that the courtroom—I’m not going to say it’s full, but there has to be at least fifty citizens here. And it certainly disrupted the business of this court. There has got to be more than fifty citizens that are here. All right.
      “Marshal, would you get me a cup of water? Okay. There’s some coughing here. Was pepper spray used?
      “The Marshal: Yes.
      “The Court: Oh. Now, I—I thought it was me. Okay. All right. Resuming the call of the docket.”

       The transcript of the afternoon session reads:
      “The Court: During the luncheon—I did not see Mr. Isko again during the morning session. During the luncheon recess, I called the public defender’s office to talk to Mr. Isko, and I was advised by, I assume staff there, that Mr. Isko was gone for the day. It was then that I was advised . . . that Mr. Isko would not be in and that they were requesting that you [reference to Romano] appear for [the plaintiff]. At 2 p.m. or shortly thereafter, you did come to my chambers along with members of the prosecutorial staff and indicated that, either at that time or shortly thereafter, that the [plaintiff] did not want to appear in the courtroom, and I wasn’t going to force him to come into the courtroom, and we discussed the circumstances and time flies, but it brought us to the 3:20 p.m. time, which it is now. And the reason why I want to put it on the record is because under summary contempt, I think it’s important that the judge act summarily as the case law, statute and Practice Book require. . . .

      “[The Plaintiffs Counsel]: Your Honor, if I can just make one request before we proceed.
      “The Court: Of course. . . .
      “[The Plaintiffs Counsel]: And that is for a deferral of proceedings under § 1-17 of the Practice Book. And the reason for that deferral, Your Honor, is because, again, as you stated on the record, I came here about two o’clock and was caught up as best as I could between yourself and two members of the prosecutorial staff before I was able to go down and speak with [the plaintiff]. And upon speaking with [the plaintiff], there was some mental health issues that came to light during the course of my interview with him that he made me aware of. It’s my understanding . . . that he is currently on some type of medicine that is supposed to modify or in some way affect his behavior and that he has been on several different medicines that have been changed during the course of his stay at the department of correction. With that in mind, I believe that there may be some type of diminished capacity issue or defense that I would like to be able to, at the very least, investigate. I’m only asking for a deferral of proceedings for one week in order to obtain his prison medical file to determine whether or not there is any issue of that nature before we proceed. . . .
      “The Court: That’s not in the nature of a summary criminal contempt, Counselor. And if you read [Practice Book §] 1-17, it’s not applicable here. The court is going to deny your request. . . . We’re proceeding under § 1-16 of the Practice Book. And I want to give you an opportunity, Mr. Vasquez, to show reasons why you should not be judged in contempt and stating anything you think appropriate [or] relevant to why you should not be found in contempt and you should not be sanctioned in any way. You can stay seated, sir. Take your time.
      “[The Plaintiff]: Throughout the whole proceedings and as long as I known that attorney, I felt he was out to get me. . . .
      “The Court: . . . The [plaintiff] was facing forward, facing the court. These are my observations and my observations alone. . . . What struck me is that there was no interaction between the [plaintiff] and Mr. Isko.
      “Attorney Isko was standing to the right of [the plaintiff]. Both were facing forward. I didn’t even see [the plaintiff] glance in the direction of Mr. Isko. In fact, I believe that [the plaintiff] was looking forward at the time. What I did see was suddenly, a sudden movement of his right arm, without any interaction between he and Mr. Isko, without any provocation that I could discern because they weren’t even looking or interacting at the time; [the plaintiff] raise[d] his right arm, it appeared to me in a violent manner, and struck attorney Isko in the face .... I saw Mr. Isko fall to the ground on his backside behind the state’s attorney’s table. The [plaintiff] in my opinion did not turn to face Mr. Isko to deliver the blow.
      “It should be noted that the right hand of the [plaintiff], the one used to effectuate the blow, appears to be wrapped in Ace bandages. I’m advised by the marshals that there’s either a plaster cast or a hardened substance, whether it’s plastic, whatever, I don’t know, but there is a harder substance under the—I’m not going to examine it now. I don’t think there’s a need— under the Ace bandage. That’s the area I saw meet Mr. Isko’s face.
      “Multiple marshals converged on the [plaintiff] in an effort to remove [him] from the courtroom. It appeared to me that [he] resisted. A multitude of marshals, it could be five, six or seven were all around [the plaintiff], and they slowly shuffled [him] to the lockup. It’s clear to me that the [plaintiff] was resistant. Apparently, pepper spray was administered by one or more of the marshals in the area of the lockup.
      “Certainly, this court was disrupted, not only by the behavior of [the plaintiff], but there was a residue of the pepper spray that emanated into the courtroom. And for virtually, if not all, a good substantial part of the morning session, the audience, the members of the public, and the staff and the court were coughing and having an effect from the pepper spray. This is all attributable to the [plaintiff]. . . .
      “The court thought the interruption was such a grievous nature that the court considered ordering a recess till order could be restored. But the court upon reflecting thought it would be better if the court maintained the public in their seats and continue with the courtroom, the morning session. The Court did that. Certainly, the activity of [the plaintiff] merited a break in the proceedings and a recess. I elected not to have the recess. I thought that would be a surer way of maintaining the members of the public in their seats because it was clear to me everybody was aghast, and some members of the public stood up. They were shocked. . . . Also, as far as any disruption in the administration of justice, Mr. Isko left.....I infer from reasons of this assault. He didn’t finish the cases he had. That is further interruption of the administration of justice for the day. . . .
      “Mr. Vasquez, I find you guilty beyond a reasonable doubt of criminal contempt of this courtroom and that your conduct caused an obstruction to the administration of justice in the following ways: The disruption you created by assaulting in open court, in the well of the court, your attorney, is outrageous and egregious behavior. That, in and of itself, is sufficient to find a disruption in the administration of justice. There were fifty-seven people here in the audience alone. That certainly caused disruption not only to 1he court and the administration of the court’s business in this day, but certainly in their business they had before the court. . . .
      “Plus, the residual effect of the pepper spray and plus the fact that Mr. Isko could not complete his business, all contribute to—any one of which would have been sufficient, an intentional disruption in the administration of justice of this court. The court is going to impose a sentence of six months, the maximum I can by law, to serve.” (Emphasis added.)

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The cases cited for this proposition in the writ of error are Banks v. Thomas, 241 Conn. 569, 585, 698 A.2d 268 (1997), and In re Dodson, 214 Conn. 344, 346, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). Both cases involved summary criminal contempts, rather than nonsummary criminal contempts.

       See footnote 2.

       See footnote 3.

       The plaintiff briefly states in his brief that the interim between the morning session, when the behavior occurred, and the afternoon session when the behavior was punished, impaired a finding of immediacy of action and implied that the immediacy of punishment was not the judge’s central concern. He cites no case to support his position. The need for summary abdication is not disturbed by such a hiatus, however. See Sacher v. United States, 243 U.S. 1, 9, 725 S. Ct. 451, 96 L. Ed. 717 (1952); In re Dodson, supra, 214 Conn. 365-66.

       Although the judge apparently signed the information charging the plaintiff with a violation of § 51-33a, the information was superfluous given the fact that the judge conducted a hearing pursuant to § 51-33, which requires no information or written charge.

       “Our Supreme Court consistently has held that summary contempt proceedings are not criminal prosecutions.” Higgins v. Liston, supra, 88 Conn. App. 610.

       The judge’s remarks clearly indicate that Isko did a very good job in his representation of the plaintiff.

       It is not clear that a judgment file need be prepared in a summary criminal contempt proceeding. See Practice Book §§ 6-3, 6-4. Due to the nature of a writ of error, namely, a review of errors of law only, and the fact that a judgment file may not have been necessary, neither the state nor the plaintiff sought a motion to correct the judgment file in the trial court, making cases such as Varanelli v. Luddy, 130 Conn. 74, 32 A.2d 61 (1943), inapposite.