author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. FATHY N. KAMEL
    (AC 25786)
    McLachlan, Lavine and McDonald, Js.

      Argued October 29, 2008
    officially released June 30, 2009

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Robert Diaz, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Fathy N. Kamel, appeals from the judgment of conviction, rendered after a jury trial, of two counts of failure to keep narcotics in the original container in violation of General Statutes § 21a-257, and one count each of criminal trespass in the first degree in violation of General Statutes § 53a-107, possession of narcotics in violation of General Statutes § 21a-279 (a), possession of less than four ounces of marijuana in violation of § 21a-279 (c), interfering with an officer in violation of General Statutes § 53a-167a, use of drug paraphernalia in violation of General Statutes § 21a-267 (a), possession of marijuana within 1500 feet of a school in violation of § 21a-279 (d) and possession of narcotics within 1500 feet of a school in violation of § 21a-279 (d). On appeal, the defendant claims that the trial court (1) violated his constitutional right to counsel when it failed to conduct an inquiry into his allegation that he was indigent, (2) improperly denied his motion to suppress evidence obtained during the search of a bag that belonged to him and (3) failed to conduct a preliminary on the record inquiry after learning that the jury was exposed during its deliberations to brass knuckles, which were marked for identification but not admitted into evidence as an exhibit. We agree with the defendant’s third claim and therefore reverse the judgment and remand the case for a new trial. Because the defendant’s second claim is likely to arise in the event of a new trial, we also address that claim.

I

We first address the defendant’s claim that the court violated his constitutional right to a fair trial when it failed to conduct a proper preliminary, on the record inquiry after learning that the jurors were exposed during their deliberations to evidence that had been marked for identification but not admitted into evidence as an exhibit. We agree with the defendant.

The jury reasonably could have found the following facts. On September 27, 2002, state marshal Anthony Verrico, after having served the defendant with an eviction notice three days earlier, arrived at 135 Washington Avenue in South Norwalk to take possession of the premises, take an inventory and change the locks. The defendant ran a store at that address and, on September 27, 2002, was in the process of vacating the location. Verrico started to inventory the items found on the premises and came across a black bag that the defendant informed him was his own and not a part of the store inventory. After the defendant refused to leave the premises, the police officers arrived. The officers eventually arrested the defendant without a warrant and took him to the police station. The arresting officer, Mark DeVito, took the defendant’s bag to the station and searched it. DeVito testified at trial, in the presence of the jury, that among the items he found in the bag was a pair of brass knuckles. After the state moved to introduce the brass knuckles into evidence, the defendant objected on the ground that the they were not relevant, and the court sustained his objection in the presence of the jury.

On April 20, 2004, following the conclusion of the evidence and arguments, the jury returned its verdict finding the defendant guilty of all charges. On July 27, 2004, the court, Wilson, J., summoned the prosecutor and the defendant, who was representing himself. Judge Wilson informed them, for the first time, that on April 20, 2004, she went into the jury room after the jurors reached the verdict to thank them for their service and saw that the brass knuckles had been in the jury room during the jury deliberations. The court also stated, without providing further explanation, that “it was brought to [its] attention that . . . the jurors knew they weren’t supposed to consider the knuckles and that they were not considered.” The court stated that it would give the defendant and the prosecutor an opportunity to address this issue, but it also repeatedly stated that on the basis of its research, it believed that the presence of the brass knuckles in the jury room was a harmless evidentiary error. The defendant stated at one point: “But as far as the error is harmless, I mean, who is to say that the error is harmless after the jury had done [its] duty and gone . . . .” The court stated that it would allow the defendant to file a motion for a mistrial by August 10, 2004, the date scheduled for sentencing. On August 6,2004, the defendant filed a motion for a judgment of acquittal or a new trial.

On August 10, 2004, at the hearing on the defendant’s motion and the sentencing hearing, before the defendant’s argument, the court reiterated its conclusions that the presence of the brass knuckles in the jury room was an evidentiary and not a constitutional error, that the defendant had the burden to prove its harmfulness and that it believed that the error was harmless. After hearing the arguments, the court concluded that the defendant had not met his burden in establishing that the presence of the brass knuckles in the jury room affected the outcome of the trial and denied his motion for a judgment of acquittal or a new trial. The defendant was sentenced to five years in prison, execution suspended after two years and one day, and five years probation.

“Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States Constitution.” State v. Brown, 235 Conn. 502, 522, 668 A.2d 1288 (1995). “[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. ... A necessary component of the right to an impartial jury is the right to have the jury decide the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. . . . Consideration of extrinsic evidence is jury misconduct and has been found to be sufficient to violate the constitutional right to trial by an impartial jury.” (Citations omitted; internal quotation marks omitted.) State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992).

Our review on appeal is limited to the inquiry of whether the court’s review of the alleged jury misconduct can be characterized fairly as an abuse of discretion. State v. Rivera, 84 Conn. App. 245, 254, 853 A.2d 554, cert. denied, 271 Conn. 934, 861 A. 2d 511 (2004).

“Our review of the scope of the trial court’s preliminary inquiry into allegations of jury misconduct is governed by State v. Brown, supra, 235 Conn. 502. In Brown, we exercised our supervisory authority over the administration of justice to hold that ... a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Id., 526. We reiterated that the trial court has broad discretion to determine the form and scope of the proper response to allegations of jury misconduct; id., 523-24; and instructed that [i]n exercising that discretion, the trial court must zealously protect the rights of the accused. Id., 524.” (Emphasis added; internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 436, 773 A.2d 287 (2001).

We conclude that the court in the present case abused its discretion because it failed to conduct a meaningful, on the record, preliminary inquiry as required by Brown and its progeny. In Brown, our Supreme Court held that a duty to conduct a preliminary inquiry was triggered when the court received an anonymous letter informing it that the jurors overheard the sheriffs’ statements that they were betting that the defendant would be found guilty because he was black and from New York. State v. Brown, supra, 235 Conn. 519-20. In the present case, the court was aware that the jurors, during their deliberations, were exposed to an item not admitted into evidence and often associated with violent criminal acts. Brass knuckles are not an innocuous item but one that would suggest to the average juror that the defendant, charged with interfering with an officer, among other crimes, had violent, unlawful propensities. It is well established that consideration of extrinsic evidence is jury misconduct sufficient to violate the constitutional right to trial by an impartial jury. See, e.g., State v. Migliaro, supra, 28 Conn. App. 395. In Migliaro, this court held that the trial court was presented with indicia that jurors were exposed to potentially prejudicial extrinsic evidence sufficient to trigger its duty to investigate potential jury misconduct further when it found out that a juror brought medical books into the courthouse. Id., 396. On the basis of this precedent, we conclude that a duty to conduct a preliminary hearing similarly was triggered in the present case when the court learned that the jurors, during their deliberations, were exposed to, and therefore might have considered, potentially prejudicial evidence that had not been admitted as an exhibit. See State v. Stuart, 113 Conn. App. 541, 553, 967 A.2d 532 (2009) (jury’s viewing of evidence admitted for identification purposes only may be deemed improper viewing of extrinsic evidence).

We are also guided by our Supreme Court’s recent holding in Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 956 A.2d 1145 (2008). Although Connecticut Light & Power Co. is a civil case that does not address Brown, we find it instructive that the court treated the jury’s improper consideration of a document marked for identification and not admitted into evidence as an exhibit as jury misconduct, although it ultimately held that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial. See id., 101-105. Our conclusion is further supported by federal cases that have held that jurors’ consideration of evidence not fully admitted as an exhibit is consideration of extrinsic evidence for the purposes of the defendant’s constitutional rights under the sixth amendment to the United States constitution. In Benjamin v. Fischer, 248 F. Sup. 2d 251, 260-61 (S.D.N.Y. 2002), aff'd, 87 Fed. Appx. 761 (2d Cir. 2004), the court determined that the jurors considered extrinsic evidence when they read the redacted portions of a police report, although the report was admitted as a defense exhibit. See also United States v. Harber, 53 F.3d 236, 239-40 (9th Cir. 1995) (report marked for identification and not fully admitted as exhibit deemed extrinsic evidence because it was present injury room during deliberations); see also United States v. Ofray-Campos, 534 F.3d 1, 15, 20 (1st Cir.) (jury exposed to extrinsic information when it considered court’s note providing it with factual information), cert. denied, 555 U.S. 1020, 129 S. Ct. 588, 172 L. Ed. 2d 444 (2008).

We next address the scope and form of the preliminary inquiry required under Brown. Our Supreme Court has instructed that in exercising the broad discretion the trial court has in determining the scope and form of the proper response to potential jury misconduct, “[it] should consider the following factors ... (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state’s interests of, inter alia, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system. . . . [A]ny assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury misconduct will necessarily be fact specific.” (Citation omitted.) State v. Santiago, 245 Conn. 301, 331, 715 A.2d 1 (1998).

In Anderson, our Supreme Court concluded that the inquiry conducted by the court into allegations of jury misconduct was adequate to safeguard the defendant’s right to a fair trial before an impartial jury. State v. Anderson, supra, 255 Conn. 437. After receiving information that a juror made improper remarks in front of other jurors, the court disclosed this information to counsel and gave them an opportunity to submit questions for the juror who reported the remarks to the court. Id., 430-37. The court then interviewed the juror who reported the remarks, the juror who made the remarks, as well as all of the other jurors and alternate jurors, individually and on the record, to determine whether they could be fair and impartial. Id. The court determined that the jurors were credible in their assertions that they could be impartial and base their decisions only on the evidence presented. Id., 437; see also State v. Alston, 272 Conn. 432, 453, 862 A.2d 817 (2005) (court did not abuse discretion and clearly satisfied preliminary inquiry required by Brown when, immediately after learning about alleged misconduct and on record, it notified both counsel and allowed them to respond and demand further inquiry into misconduct); State v. Necaise, 97 Conn. App. 214, 224, 904 A.2d 245 (court responded appropriately by conducting preliminary inquiry of counsel, on record, about note it received from juror during recess, gave both parties opportunity to assess nature of potential prejudice and propose possible remedial actions, including requesting further inquiry by court of juror who had written note), cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

Conversely, this court has held that the trial court abused its discretion when it failed to conduct a preliminary inquiry pursuant to Brown after defense counsel informed it that a juror, in a trial in which medical evidence was critical to the jury’s resolution of the issue of the cause of the victim’s death, brought medical books into the courthouse. State v. Migliaro, supra, 28 Conn. App. 392. The court in Migliaro failed to ascertain whether any of the jurors used information from the books during the course of deliberations or to make a rudimentary inquiry into the substantive contents of the books, especially whether the books contained any information that might be interpreted by a reader to be material to the issues in that case. Id., 396-97; see also State v. Roman, 262 Conn. 718, 727-28, 817 A.2d 100 (2003) (court abused discretion when it failed to conduct meaningful inquiry into specific and facially credible allegation that jury member had spoken to victim’s family); State v. Brown, supra, 235 Conn. 519, 526 (court abused discretion when it failed to conduct, with appropriate participation of both counsel, at least preliminary inquiry into allegations made in anonymous letter delivered to it after jury reached verdict and before sentencing).

The court in the present case, therefore, initially failed to do what was minimally required under Brown, which is to inform both sides that the jury was exposed to the brass knuckles. See id., 526 (“form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between”). As in Brown, the court in the present case was aware of the jury’s exposure to potentially prejudicial information before the defendant was sentenced. See id., 525 (emphasizing that letter alleging misconduct was brought to court’s attention before sentencing and therefore before rendering final judgment). Yet, the court waited three months to inform the parties of what transpired in the jury room on April 20,2004, and offered no explanation for this delay. The fact that it eventually told the defendant and the prosecutor about the jury’s exposure to the brass knuckles does not satisfy the bare minimum requirement under Brown because the passage of time and the court’s firm initial conclusion that no harm had occurred, coupled with the failure to immediately inform counsel and hold an on the record inquiry, in effect precluded any meaningful preliminary inquiry at that point. See id., 524-25 (court abused its discretion where defendant had only limited opportunity to ask for inquiry into allegations of jury misconduct).

The court’s ex parte interactions with the jurors and its unilateral determination that they did not consider the brass knuckles during their deliberations further failed to fulfill the requirements of Brown because any preliminary inquiry must be conducted on the record. See id.; see also State v. Centeno, 259 Conn. 75, 81-82, 787 A.2d 537 (2002); State v. Anderson, supra, 255 Conn. 436. “Although the trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant . . . the court must have some factual basis on which to exercise that discretion.” (Internal quotation marks omitted.) State v. Jaynes, 35 Conn. App. 541, 562, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994). The factual basis on which the court relied in the present case was established off the record and without either parties’ knowledge or input, running afoul of the requirements of Brown. We therefore conclude that the court abused its discretion when it failed to conduct a proper on the record inquiry after learning that the jurors had the brass knuckles with them during the deliberations.

We next turn to the question of a proper remedy in the present case. Failure to conduct the required preliminary inquiry on the record ordinarily results in a remand to the trial court with instructions to conduct a proper preliminary hearing. See, e.g., State v. Migliaro, supra, 28 Conn. App. 397; State v. Gonzalez, 25 Conn. App. 433, 440, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992). In this case, however, we conclude that a remand with instructions to conduct a proper preliminary hearing is not an adequate remedy. The court’s off the record, ex parte communication with the jurors regarding their exposure to extrinsic evidence, its unilateral conclusion that the exposure was a harmless evidentiary error and the significant passage of time since May 20,2004, preclude any possibility that a meaningful on the record inquiry could be conducted today. Because the usual remedy of remand for a hearing would serve no useful purpose, the case must be remanded for a new trial.

n

In light of our decision to reverse the judgment of conviction and to remand the case for a new trial, we turn to the defendant’s claim that the court, Hon. Jack Grogins, judge trial referee, improperly denied his motion to suppress the evidence obtained during the search of his bag because it failed to conduct an evidentiary hearing on his motion to suppress. We agree.

The following facts are relevant to our consideration of the defendant’s claim. On March 21, 2003, the defendant filed a notice of a motion for return of unlawfully seized property and suppression of evidence. On May 20, 2003, Judge Grogins wrote on the notice: “To be heard prior to trial.” On June 10, 2003, the defendant filed a memorandum of law in support of the motion, describing his version of the events that led to his arrest on September 27, 2002, and arguing that DeVito seized his property in violation of his right against unreasonable searches and seizures guaranteed by the fourth amendment to the United States constitution. On September 23, 2003, Judge Grogins held a hearing on the motion. Almost the entire hearing was devoted to determining what property the defendant wanted returned. Near the end of the hearing, the following exchange occurred:

“[The Defendant]: Well, what I’m trying to say, Your Honor, this motion here is to return the property and suppress the evidence.
“The Court: I understand that.
“[The Defendant]: To be used against me.
“The Court: I understand that.
“[The Defendant]: Am I being denied this motion?
“The Court: You are being denied; that’s right.
“[The Defendant]: I think—
“The Court: Except as to the glasses.
“[The Defendant]: Okay, so can we make a section in the record that I’ve been denied return of property—
“The Court: It’s in the record.
“[The Defendant]:—and suppression—
“The Court: It’s right in the record, sir. It’s right in the record.”

On April 6, 2004, the day of jury selection, Judge Wilson told the defendant: “[Y]ou indicated that you had [a] motion to suppress you wanted to deal with. We will deal with that after we finish [with] jury selection today, so we’ll deal with that toward the end of the day.” The defendant replied: “Yes, Your Honor.” The hearing, however, was never held.

On August 1, 2006, Judge Grogins wrote “approved” on the September 23, 2003, transcript, and on August 4, 2006, the following note was added: “Decision entered in accordance with the foregoing.” On August 16, 2006, the defendant filed a motion for articulation of the court’s denial of his motion to suppress evidence. On September 11, 2006, the court filed an articulation of its denial of the defendant’s motion to suppress evidence. In the articulation, Judge Grogins stated that the defendant’s motion was denied because “seized items were germane to the state’s case [and] at the time of the defendant’s arrest at his former occupied premises were lawfully taken by the police pursuant to a lawful arrest and a search incident thereto.” (Citation omitted.)

We set forth our standard of review. “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. . . . Whether the trial court properly found that facts submitted were enough to support a finding of probable cause is a question of law. . . . Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e . . . give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Bonner, 110 Conn. App. 621, 633, 955 A.2d 625, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

“The [fourth [a]mendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception. . . . One such exception is the seizure of evidence incident to a lawful arrest.” (Citation omitted; internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 434, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008).

We are unpersuaded by the state’s arguments that the portions of the transcript from the September 23, 2003 hearing indicate that the defendant and the court were “merely speaking over each other,” that it is unclear whether the court denied the defendant’s motion to suppress evidence, that we should disregard the court’s subsequent articulation of its decision and that we should conclude that the defendant’s claim is unreviewable because he never pursued his motion to suppress evidence. We conclude that the court denied the defendant’s motion to suppress evidence because it stated so twice during the hearing and subsequently issued an articulation of the denial.

We are, however, unable to determine whether the court’s denial of the motion to suppress evidence was proper because the court did not make factual findings before it denied the motion. The entire hearing conducted on September 23, 2003, was essentially devoted to the determination of the exact items the defendant wanted returned, and it is unclear what facts led the court to conclude that the seizure of his bag was the product of a search incident to a lawful arrest. See State v. Clark, 255 Conn. 268, 291, 764 A.2d 1251 (2001) (“the state bears the burden of proving that an exception to the warrant requirement applies when a warrantless search has been conducted”).

We conclude that because the defendant was deprived wrongly of a chance to pursue his motion to suppress evidence, he should have the opportunity to do so on remand.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In light of our conclusion, we do not reach the issue of whether the court violated the defendant’s constitutional right to counsel when it failed to conduct an inquiry into the defendant’s allegation that he was indigent.

       We also note here that “[t]he judicial authority shall require that a record be kept of all communications received by it from a juror or the jury after the jury has been sworn, and it shall not communicate with a juror or the jury on any aspect of the case itself, as distinguished from matters relating to physical comforts and the like, except after notice to all parties and reasonable opportunity for them to be present. ... In a criminal trial, ex parte conversations between the judge and jury are constitutionally prohibited.” (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 43, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998).
      Although it is common practice for judges to enter the jury room after a verdict has been returned to thank the jury for its service and converse with jurors about their experience, any communication with jurors regarding the impact that the brass knuckles might have had on their deliberations should have been conducted on the record and in open court, after advising counsel of the problem.

       We remand this case for a new trial fully aware of the fact that a new trial is ordinarily reserved for those cases in which the jury misconduct has prejudiced the defendant to the extent that he has not received a fair trial. See State v. Rhodes, 248 Conn. 39, 47, 726 A.2d 513 (1999). In cases in which the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error, while in cases where the trial court is in no way responsible for the juror misconduct, a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct. Id.
      We cannot, however, determine what impact the jurors’ exposure to the brass knuckles had in this case because the court failed to conduct the basic factual inquiry on the record at the time it became aware of the exposure. We do not question the sincerity of the court’s initial conclusion, based on its discussions with the jurors, that no harm occurred. As Brown and its progeny instruct, and experience teaches, however, a private, off the record inquiry by the court is no substitute for an on the record inquiry where the jurors’ responses are subject to possible examination and evaluation in an adversary setting. Where the “record is too barren ... to determine what misconduct, if any, took place and whether it was prejudicial . . . [w]e cannot speculate whether there was some extraneous influence involved .... Nor may we speculate that there was no misconduct, or if such did exist that it probably was not prejudicial, or fanciful or frivolous. A basic factual inquiry into the substantive content of the alleged misconduct was required before the trial court could exercise its discretion in determining the scope or extent of any investigation needed.” (Emphasis added.) State v. Gonzalez, supra, 25 Conn. App. 440.

       Our review of the transcript indicates that this was, at least in part, due to the defendant’s poor command of the English language.

       We additionally decline the defendant’s invitation to conclude that the court’s denial of his motion to suppress evidence was improper on the basis of the facts introduced at the trial, after the hearing on the motion to suppress.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VINCENT JOSEPH PALANGIO
    (AC 29352)
    Flynn, C. J., and Gruendel and Stoughton, Js.

      Argued February 2
    officially released June 30, 2009

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Vincent Joseph Palangio, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), and robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-134 (a) (4). He claims on appeal that (1) the evidence was insufficient to convict him of conspiracy to commit robbery in the first degree, (2) the evidence was insufficient to convict him of robbery in the first degree as an accessory, (3) the charge to the jury on robbery in the first degree deprived him of his due process right to a fair trial and (4) the trial court improperly admitted into evidence written statements of an accomplice. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, although no longer married to her, was living with Kim Palangio in an apartment in Naugatuck in April, 2006. On the morning of April 23, 2006, Kim Palangio left the apartment to try to get some drugs. She did not succeed, and, on her return, the defendant asked her if she “wanted to make some money.” He first suggested that she steal something from Sears. She did not want to do that because she had been caught stealing a tool from Sears a few days earlier. She then suggested that they go to the Citgo gasoline station on New Haven Road in Naugatuck because it was “out of the way.” After deciding where to go, the defendant drove Kim Palangio in her car and let her out at the Citgo station. Wearing black jeans, a black hoodie jacket, gloves and a baseball hat, she put her hood up over her head and entered the Citgo station. She removed a gallon of milk from the cooler and took it to the counter. She then ordered a carton of cigarettes from the clerk behind the counter, and, when the clerk turned away, she took a black BB gun shaped like a handgun from under her hooded jacket, placed it on the counter and demanded money. The clerk gave her the money from the register, and she walked out and down the street where the defendant picked her up. The stolen money amounted to $520, and as she was counting it, the defendant drove to Waterbury so they could buy drugs. They then returned to the apartment where Kim Palangio put the BB gun in her dresser drawer and changed out of her clothes. She put her black jeans in her closet and gave to the defendant her black hoodie jacket, gloves and baseball hat because he wanted to get rid of them.

The police reviewed a video surveillance tape of the robbery and recognized Kim Palangio. They went to the apartment, and, as they entered, the defendant said, “I didn’t do it.” The police found the BB gun and the cigarettes and the gallon of milk, which had been taken from the Citgo station. They arrested Kim Palangio, and she gave a statement in which she explained how she and the defendant had robbed the Citgo station. Additional facts will be set forth as necessary.

I

We first consider the defendant’s claim that the court abused its discretion in admitting into evidence for substantive purposes under the rule enunciated in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), two statements given to the police by Kim Palangio. Because the state’s case against the defendant was almost entirely dependent on these statements, resolution of this claim in favor of the defendant would be dispositive. For the reasons we will set forth, we determine that the court did not abuse its discretion in admitting the statements.

On April 23, 2006, after having been arrested and properly given Miranda warnings, Kim Palangio gave a statement to the police in which she described how she and the defendant had robbed the Citgo station. On the same date, she gave a second statement to a different, policeman in which she described how a few days before the Citgo robbery she and the defendant, needing some money, went to a 7-Eleven store in Waterbury, which she entered and robbed by representing that she had a gun in her pocket.

At the defendant’s trial, the state called Kim Palangio as a witness. Although she had pleaded guilty to the robberies about which she had given statements, she testified that she could not remember the details or who had driven her to the Citgo robbery. Kim Palangio’s statement regarding the Citgo robbery was admitted as substantive evidence pursuant to the rule in Whelan. Under Whelan, a prior inconsistent statement may be admitted into evidence for substantive purposes where (1) the statement is in writing, (2) the statement is signed by the declarant, (3) the declarant has personal knowledge of the facts contained therein and (4) the declarant testifies at trial and is subject to cross-examination. Id., 753.

During the trial, Kim Palangio was questioned about the 7-Eleven robbery to rebut a claim that the defendant did not know that she was going to commit a robbery. She admitted that the defendant drove her to the 7-Eleven store and that she had used a BB gun in the robbery but claimed that the defendant did not know that she had a gun and that she was unable to remember many of the details of the robbery. Thereafter, her statement to the police regarding the 7-Eleven robbery was admitted as substantive evidence pursuant to Whelan,

The admissibility of evidence, including admissibility of a prior inconsistent statement under the rule in Whelan, is within the wide discretion of the trial court. State v. Anderson, 74 Conn. App. 633, 645, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003). If such a statement is made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in it so as to render it, in effect, not that of the witness, the trial court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes. State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000).

The defendant does not claim that the requirements of the rule in Whelan have not been met. His claim is that the statements made to the police by Kim Palangio were unreliable because she had been under the influence of drugs when she gave them. Kim Palangio testified that when she gave her statements, she had been up four or five days getting high and that she had used heroin, methadone and pills. She was taken to Waterbury Hospital after she had given her statements, and the hospital records confirmed that she had been using drugs. On the other hand, the police officers who had interviewed Kim Palangio testified that she was lucid and coherent and did not appear to be under the influence of drugs. The court found that the statements had sufficient indications of reliability and that the testimony by the police officers who took the statements, which was that she was lucid and coherent, was credible. Accordingly, we conclude that the court did not abuse its discretion in admitting the statements into evidence.

II

The defendant next claims that the evidence was insufficient to support a finding that he had conspired to commit robbery in the first degree with a handgun. We disagree.

In reviewing such a claim, we first construe the evidence in the light most favorable to sustaining the verdict. State v. Anderson, supra, 74 Conn. App. 636. We then determine whether, on the facts so construed and inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Id. “[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of eveiy hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 297, 952 A.2d 755 (2008).

To establish the crime of conspiracy, it must be shown that an agreement was made to engage in conduct constituting a crime, that the conspirators intended that the conduct be performed and that the agreement was followed by an overt act in furtherance of the conspiracy. State v. Patterson, 276 Conn. 452, 461-62, 886 A.2d 777 (2005). “Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to conspire and (b) the intent to commit the offense which is the object of the conspiracy. . . . Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Citation omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005).

The conspired offense in this case was robbery in the first degree, which is defined in § 53a-134 (a) (4), inter alia, as a robbery during the course of which a participant displays a pistol, revolver, or other firearm. The state was thus required to prove that the defendant and another agreed to commit robbery, intended to commit robbery with a firearm and that one of the conspirators committed an overt act in furtherance of the conspiracy.

We do not agree with the state’s contention that it was not required to prove that the defendant knew that Kim Palangio was going to use a firearm during the robbery. The state reasons that because a defendant charged with robbery in the first degree on the ground that he or another participant in the crime is armed need not be proven to have intended to possess a deadly weapon; see State v. Crosswell, 223 Conn. 243, 261 n.14, 612 A.2d 1174 (1992); and because a defendant charged as an accessory to robbery in the first degree need not be proven to have intended to possess a deadly weapon; see State v. Avila, 223 Conn. 595, 609, 613 A.2d 731 (1992); the same is true when the defendant is charged with conspiracy to commit robbery in the first degree. That is so, except as to the conspiracy charge, because under § 53a-134, possession of a firearm is an aggravating circumstance and intent is not an element of the aggravating circumstance. See State v. Crosswell, supra, 258 n.11. The difference here lies in the fact that the defendant is charged specifically with having agreed to commit a robbery with a firearm. A fortiori, the state must prove that the defendant intended that a robbery with a firearm take place.

There was no direct evidence presented to the jury that the defendant knew that Kim Palangio had a gun when she entered the Citgo station. Indeed, the defendant denied any involvement in the robbery, and Kim Palangio testified that she did not remember the details of the Citgo robbery, including the defendant’s involvement in the robbery, and that as to the 7-Eleven robbery, the defendant would not have let her commit an armed robbery. On the other hand, the jury knew that the defendant and Kim Palangio lived together, that they needed money for drugs and that they went to the Citgo station “to make some money.” In addition, the juiy knew that the two, shortly before the Citgo robbery, had robbed a 7-Eleven store in substantially the same way and that Kim Palangio had come out of the store with money, which they had used to buy drugs.

Furthermore, a compact disc (CD) containing three taped jailhouse telephone conversations was admitted as a full exhibit and played to the jury. In two of the conversations, Kim Palangio expressed concern to Maurice Sampson, a witness for the defense, that she might be punished for lying when she said that the defendant did not know that she had a gun. The first of the two conversations occurred on March 29, 2007, approximately three months before trial. See footnote 9. During this conversation, the following colloquy took place:

“Kim Palangio: Oh. ... A [private investigator] came to see me, right. And, I told [the defendant’s] sister . . . that I will tell them [the defendant] didn’t have a gun. You know, I’ll do whatever I can to help him. Well, the [private investigator] . . . says to me that [the defendant] said that I would say that [the defendant] wasn’t even driving [the car used in the Citgo robbery], that this kid Paul was, who I was partying with—Paul. He wants me to blame it on [Paul]. [Paul] didn’t even know I did [the Citgo robbery]. Can you believe that? I was like, that son of a B. I said, ‘you know what, [the defendant] brought me [to the Citgo robbery].’ I said, ‘I’m not going to lie that much.’ You know what I’m saying? If I got to go to trial, you know, go on [the witness] stand, I’ll get—I can get more time for that. I said, ‘you know, for all I know he didn’t know I had a gun,’ and that’s the only thing I signed. I mean, he wants me to say all kinds of .... I wrote to [the defendant’s sister] and said, you better talk to your brother because he’s lying completely, and if he gets— goes to trial, and—

“Sampson:—gets caught lying it will be worse.
“Kim Palangio: Yeah. If he gets caught—found guilty, they’ll give him like big time.
“Sampson: Yeah.
“Kim Palangio: He doesn’t understand that. He thinks—he’s just, you know, ‘I didn’t do it,’ and that’s it. I mean, there’s proof, you know. As soon as the cops walked in the house, he said, T didn’t do it,’ so they knew that he—you know what I’m saying—
“Sampson: Yeah.
“Kim Palangio: They knew something. He’s so stupid, man. I can’t believe it.”

The second of the two conversations occurred on Saturday, June 23,2006, one day after both Kim Palangio and Sampson testified at the defendant’s trial. During this conversation, the following colloquy took place:

“Kim Palangio: I’m going to kill [the defendant], he’s such an asshole.
“Sampson: Why?
“Kim Palangio: Because I can get in so much trouble for that. I can get more time for that.
“Sampson: For what?
“Kim Palangio: For lying.
“Sampson: What did you say?
“Kim Palangio: I said, ‘I don’t remember nothing.’ I said, ‘I don’t think [the defendant]—[the defendant] didn’t know I had a gun ....’”

The recorded conversations were not offered or admitted solely to attack the credibility of Kim Palangio, but as evidence in chief, and no hearsay objections were interposed when the conversations were offered in the presence of the jury. Moreover, the court did not limit the use of the recorded conversations in its instructions to the jury. Thus, the recorded statements were available to the jury for substantive purposes.

The jury members may draw from the evidence only such inferences as are reasonable, but they are not required to put aside their common sense. State v. Mish, 110 Conn. App. 245, 263, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008). The jury reasonably could infer from Kim Palangio’s statements that she had lied when she testified that she did not recall the details of the Citgo robbery. In addition, although Kim Palangio did not state directly that the defendant knew that she had a gun, the jury could infer that she knew that the defendant was aware of the fact that she had a BB gun when she committed the robberies. This conclusion is buttressed by the fact that the defendant and Kim Palangio lived together, had previously robbed a 7-Eleven store in a similar manner, needed money for drugs and had gone to the Citgo gasoline station to get some money and that Kim Palangio told the police that they robbed the station. We therefore conclude that there was sufficient evidence for the jury to find the defendant guilty of conspiracy to commit robbery in the first degree.

Ill

Next, the defendant asserts that the court failed to instruct the jury that conspiracy to commit robbery in the first degree must include an agreement between the conspirators to accomplish all elements of the crime, including the use of the BB gun. We disagree.

The defendant did not object to the charge and now seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review this claim even though the defendant did not object to the charge because the record is adequate for review and the failure to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant’s due process rights and implicates the fairness of the trial. See State v. Felder, 95 Conn. App. 248, 257-58, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d 1226 (2006). One of the elements of robbery in the first degree is that a participant in the crime displayed or threatened the use of what he represented to be a pistol, revolver or other firearm. See General Statutes § 53a-134 (a) (4); footnote 2. Therefore, the court was required to instruct the jury that to find the defendant guilty as charged, the state had to prove beyond a reasonable doubt, inter alia, that he agreed to the use of a firearm and intended that what purported to be a firearm be used in the robbery.

We adhere to the rule that a charge to the jury is to be considered in its entirety and judged by its total effect. State v. Pearson, 97 Conn. App. 414, 424, 904 A.2d 1259, cert. denied, 280 Conn. 934, 909 A.2d 963 (2006). With respect to an unpreserved claim, we ask whether it was reasonably possible that the jury was misled. See State v. Michael A., 99 Conn. App. 251, 264, 913 A.2d 1081 (2007).

The defendant isolates two statements from the charge, which he claims were incorrect and misleading. The first of these occurred near the latter part of the court’s explanation of the first element of the conspiracy charge. The court explained that the state was required to prove that the defendant intended that conduct constituting a crime be performed, specifically, the crime of robbery in the first degree. The court then explained that one is guilty of robbery in the first degree when, in the course of the robbery, he or another participant displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver or other firearm. The court then defined robbery and instructed the jury that a robbery becomes a robbery in the first degree when in the course of the robbery the perpetrator or another participant displays or threatens the use of what he or the other participant represents by words or conduct to be a pistol, revolver or other firearm.

The court, at the end of this segment of its charge, instructed that, with respect to this element, the defendant must be proven to have been actuated by criminal intent. It added the following language, which the defendant claims is incorrect: “It’s not necessary, however, that the defendant intended to commit robbery in the first degree; it’s only necessary that he intended that certain conduct be performed or take place, which, if performed, would constitute the crime of robbery in the first degree.” Although that language appears in D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (4th Ed. 2007) § 5.1, p. 334, it is perhaps more appropriately placed early in the charge on what constitutes conspiracy and before the specific charge is defined. Although standing alone it might cause some degree of confusion, it correctly states that the defendant does not have to intend to commit the robbery himself, and it followed the court’s instruction that the defendant had to intend that a robbery in the first degree be performed and that the use or threatened use of what seemed to be apistol, revolver or other firearm was required. In the context of the complete charge it is not reasonably possible that the statement misled the jury. As stated previously, the court adequately explained that the state was required to prove that the defendant intended that conduct constituting robbery in the first degree be performed, that one is guilty of robbery in the first degree if, during the course of the robbery, he or another participant displays or threatens the use of what he represents by words or conduct to be a pistol, revolver or other firearm and that a robbery becomes a robbery in the first degree when, in the course of the robbery, he or another participant displays or threatens the use of what he or the other participant represents by words or conduct to be a pistol, revolver or other firearm.

The second statement claimed to be incorrect and misleading occurred while the court explained that the second element of the crime of conspiracy to be proven by the state was that the defendant agreed with one or more persons, including Kim Palangio, to engage in or to cause the performance of conduct that constituted the crime of robbeiy in the first degree. The court explained that no formal agreement was required and that it was sufficient to show that the persons involved were knowingly engaged in a mutual plan to do a forbidden act. The court then added the following language, which the defendant claims is incorrect and misleading: “It’s not necessary that the defendant knew the complete plan of the conspiracy and all its details.” The court went on to charge that mere acquiescence without agreement is not sufficient and that the defendant must be shown to have actually entered into the agreement, express or implied, to commit or to cause the commission of the crime of robbery in the first degree. The language of which the defendant complains is found in the model charge in D. Borden & L. Orland, supra, p. 334, although it does not seem to be relevant to the claims of proof in this case. The court almost immediately explained that the defendant must be shown to have agreed to the commission of robbery in the first degree. Whether the state was able to meet its burden of proof in that respect was a question for the jury. Considered in context, it is not reasonably possible that the jury was misled by this statement.

Our review of the charge reveals that the court adequately instructed the jury that the state specifically had to prove: (1) that the defendant intended that a robbery in the first degree occur, which is robbery with a pistol, revolver or other firearm; (2) that the defendant must be shown to have actually entered into the agreement to commit or to cause the commission of the crime of robbery in the first degree; and (3) an overt act, to wit, the actual robbery, occurred. The claim of confusion, based principally on two sentences taken out of context in the charge as given in this case, is not sufficient to establish a constitutional claim. See State v. McCalpine, 190 Conn. 822, 831, 463 A.2d 545 (1983). We conclude that the jury instructions regarding the conspiracy charge were proper.

IV

The defendant also claims that the evidence was insufficient to support his conviction of robbery in the first degree as an accessory. He claims, as he did with respect to the conspiracy charge, that the state was required to prove that he was aware that his accomplice intended to use a weapon in the commission of the robbery. We do not agree and observe that this claim is foreclosed by State v. Avila, supra, 223 Conn. 608-609 (holding that jury need not find defendant aware that another participant in crime armed with deadly weapon to find defendant guilty of robbery in first degree as accessory).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery ... he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver ... or other firearm . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.

       The jury found the defendant not guilty of a charge of possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). The trial court granted the defendant’s motion for acquittal of the following charges: one count of possession of narcotics in violation of General Statutes § 21a-279 (a); four counts of risk of irqury to a child in violation General Statutes § 53-21 (a) (1); and one count of conspiracy to commit larceny in the fourth degree in violation of General Statutes §§ 53a-48 (a) and 53a-125 (a).

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

       In her statement about the 7-EIeven robbery, Kim Palangio explained that the defendant drove her to the 7-Eleven in her car, dropped her off at the store and then waited for her “around the comer.” Once she returned to the car, they went to buy drugs.

       See footnote 2.

       Although the defendant’s first suggestion was that Kim Palangio steal something from Sears, it is difficult to imagine what she could steal from a Citgo gasoline station, other than money, which they could use to buy drugs.

       The defendant’s trial began on June 20,2007. The first two conversations recorded on March 29 and June 16, 2007, therefore, occurred before the trial had started, and the third conversation recorded on June 23, 2007, occurred after the trial had commenced.

       After the defense had rested, the state moved for permission to present additional evidence, pursuant to Practice Book § 42-35 (3). The jury was excused, and the state offered the CD containing a recording of the three jailhouse conversations. Because the first of the three conversations occurred several months before the start of the defendant’s trial; see footnote 9; the defendant objected, arguing that in the exercise of due diligence, the state ought to have discovered it prior to the trial. The court overruled this objection after it entertained argument on the matter. The defendant then objected, asserting that, because he had not heard a “beeping sound” on the CD, the announcement at the beginning of the telephone call, explaining that the call was from a correctional facility and may be recorded, might not be sufficient to warn the recipient of the call that the call may be recorded. This objection was overruled. The court then stated that it would allow the state to open its case because the evidence significantly contradicted the testimony of Kim Palangio, a hostile witness, and that it went right to the heart of her credibility and to the heart of the state’s case. After the jury returned, the state offered the three recorded jailhouse conversations, and the CD containing the conversations was admitted as a full exhibit without objection. On appeal, the defendant does not challenge the court’s ruling on the admissibility of the recorded conversations.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: GRUENDEL, J.

text:
    ESTHER CELINI v. UGO CELINI
    (AC 29862)
    Gruendel, Harper and Foti, Js.

      Argued April 13
    officially released June 30, 2009

      Charles T. Busek, for the appellant (defendant).

      Mark S. Carrón, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Ugo Celini, appeals from the judgment of the trial court granting the post-judgment motion for contempt filed by the plaintiff, Esther Celini. The defendant claims that the court improperly (1) found him liable for certain extracurricular activity and college expenses of his children, (2) found him in contempt and (3) awarded attorney’s fees and costs to the plaintiff. We affirm in part and reverse in part the judgment of the trial court.

The record discloses the following undisputed facts. The parties married in 1985, and four children were bom of the marriage. Following the subsequent breakdown of their marriage, the parties entered into a separation agreement that the court incorporated into its judgment of dissolution. On September 15, 2003, the court dissolved their marriage, finding that it had broken down irretrievably without attributing fault to either party as to the cause.

Pertinent to the defendant’s appeal are the following provisions of the separation agreement. Paragraph five provides in relevant part: “Until the [defendant] becomes employed, he and the [plaintiff] will each be responsible for one half the cost of [t]he after school activities, such as soccer and [driver’s] education that are mutually agreed upon.” Paragraph nine of the agreement provides in relevant part: “The [plaintiff] agrees to pay one quarter . . . and the [defendant] three quarters ... of the cost of tuition, room, board and books using the University of Connecticut as a cap, for the years pertaining to their [three] daughters.” Finally, paragraph twenty-nine provides in relevant part: “[I]n the event it shall be determined by a [c]ourt of competent jurisdiction that [the defendant] or [the plaintiff] shall have breached any of the provisions hereof, and/or the Superior Court at Bridgeport mies in favor of the position of the [defendant] or the [plaintiff] as to any major question submitted to the Superior Court pursuant to this [agreement, the party against whom the mling of the Superior Court is directed shall pay the other party court costs, sheriffs fees, reasonable attomeyfs] fees, and all other reasonable expenses incurred by said other party as a result thereof.”

On February 2,2007, the plaintiff filed a postjudgment motion to modify child support. That motion alleged, inter aha, that the parties “now have three minor children,” that “the defendant is now employed and earning approximately $75,000 per year” and that the “current child support orders are not consistent with the child support guidelines.” The parties thereafter entered into an agreement (modification agreement) providing that (1) the defendant will pay $267 per week in child support and that the parties will equally divide any unreimbursed medical expenses of the children; (2) the defendant will add the children to his health insurance policy; and (3) “there is an agreed upon arrearage of $1457, which will be paid by March 15, 2007.” In addition, the modification agreement stated that “past medical bills and expenses will be addressed at a later date.” The court approved that agreement and entered an order thereon on March 8, 2007.

On December 26, 2007, the plaintiff filed a postjudgment motion for contempt in which she alleged that the defendant had failed to comply with certain obligations set forth in the separation agreement despite repeated demands for payment. A hearing followed, and the parties submitted memoranda of law. On February 26, 2008, the court ruled in favor of the plaintiff in a three paragraph memorandum of decision.

In the first paragraph, the court noted the dissolution of the parties’ marriage and recited paragraph five of the separation agreement. In the second paragraph, the court stated: “[The] plaintiff claims that the defendant owes, through December 26, 2007, $10,145.79 for college expenses as well as unreimbursed health expenses for the minor children in the amount of $1363.97. [The] defendant’s argument that the college expenses agreed upon by the parties would only have to be paid if the defendant was receiving unemployment compensation and not while he was gainfully employed strains credibility and clearly [is] not the intent of the parties as expressed in a clearly flawed and ambiguous agreement (Neither [then counsel for the defendant] nor [then counsel for the plaintiff] were involved in prior proceedings). The extracurricular activities as set forth in open court and ascribed to the parties’ children contain no fluff and no frills. They are rock bottom expenses that eveiy reasonable person would treat as appropriate. They are not for golf or riding lessons. [The] defendant does not seriously contest the extracurricular expenses, and while he was not given the courtesy of allowing his permission, this does not vitiate the obligation.”

The court’s concluding paragraph stated that the “defendant is found in contempt and ordered to pay the following within thirty days of this judgment: $10,145.79—[college expenses]; $1363.97—medical expenses; $6683.80—[extracurricular] activities [for a total of] $18,193.56. In addition, attorney’s fees in the amount of $3000 are ordered as well as any out-of-pocket expenses (court, marshal and subpoena fees).” On March 5, 2008, the defendant filed with the court a notice of intent to appeal. That same day, he filed a motion for reargument and reconsideration, which the court denied on May 6, 2008. This appeal followed.

Before considering the defendant’s claims, we note that the parties both draw our attention to a misstatement in the court’s memorandum of decision. Specifically, the court stated: “[The] defendant’s argument that the college expenses agreed upon by the parties would only have to be paid if the defendant was receiving unemployment compensation and not while he was gainfully employed strains credibility and clearly [is] not the intent of the parties as expressed in a clearly flawed and ambiguous agreement . . . .” (Emphasis added.) In his motion for reargument and reconsideration, the defendant apprised the court that it had mistakenly referenced college expenses in the aforementioned statement, as the defendant raised no such argument. In her appellate brief, the plaintiff concurs: “The words ‘college expenses’ are clearly a [typographical] error. Reading the entire paragraph in context, the court was clearly talking about the extracurricular [activity] expenses, not the college expenses. The defendant never claimed that his obligation for the college expenses ceased upon his employment; he only claimed that his obligation to pay for the extracurricular activities ceased upon his employment. Much testimony was provided to the court as to the intent of the parties regarding the payment for [extracurricular] activities. There was no testimony, or even discussion, of employment vis-a-vis the college expenses.” We agree with the parties that the court’s reference to college expenses in the aforementioned statement can only be read as a scrivener’s error. We therefore turn our attention to the claims raised in this appeal mindful of that misstatement.

I

In its memorandum of decision, the court found the defendant liable for certain extracurricular activity, college and medical expenses of his children. We address each in turn.

A

The defendant first claims that the court improperly concluded that a provision in paragraph five of the separation agreement regarding extracurricular activity expenses was ambiguous. Under Connecticut law, a stipulated judgment that is incorporated into a judgment of dissolution is a contract and must be analyzed in accordance with the law of contracts. See Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999); Davis v. Davis, 112 Conn. App. 56, 63, 962 A.2d 140 (2009). Whether a contract is ambiguous is a question of law subject to plenary review. Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 200, 901 A.2d 666 (2006).

It is well established that “[a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citation omitted; internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008).

Paragraph five of the separation agreement provides in relevant part: “Until the [defendant] becomes employed, he and the [plaintiff] will each be responsible for one half the cost of [t]he after school activities, such as soccer and driver[’s] education that are mutually agreed upon.” That provision plainly indicates that the defendant was responsible for an equal portion of his children’s extracurricular activity expenses until he became employed. It contains no provision requiring the defendant to continue such payments upon his employment. The provision, on its face, is unambiguous. As such, we must give that provision effect according to its terms.

In concluding that paragraph five was “clearly flawed and ambiguous,” the court failed to provide any analysis or legal explanation for that determination. The determination appears to rest not on the terms actually contained in the separation agreement but, rather, on terms regarding the defendant’s future employment that are absent from paragraph five. “[I]t is well settled that we will not import terms into [an] agreement . . . that are not reflected in the contract.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 16, 938 A.2d 576 (2008); see also Gibson v. Capano, 241 Conn. 725, 732, 699 A.2d 68 (1997) (axiomatic that courts do not rewrite contracts for parties); Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973) (“interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement”); Williams v. Lilley, 67 Conn. 50, 59, 34 A. 765 (1895) (“[w]e assume no right to add a new term to a contract, though it were clear that had the attention of the parties been called to it in all probability it would have been inserted”). Paragraph five of the separation agreement does not require the defendant to continue payment of extracurricular activity expenses upon his employment.

We note that other portions of the separation agreement specifically delineate the defendant’s obligation with respect to certain financial obligations both during his period of unemployment and subsequent to his employment. Paragraph seven, for example, provides in relevant part that “the [plaintiff] has applied for the Husky Plan. [The plaintiff and the defendant] will split the cost of the plan . . . fifty-fifty. When the [defendant] obtains employment, and if available through his employment, the [defendant] will cover the children on that plan.” (Emphasis added.) Reading the separation agreement as a whole; Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); it is clear that the parties contemplated the defendant’s future employment and agreed to certain obligations related thereto. The payment of extracurricular activity expenses was not among them. Affording a fair and reasonable construction of the written words of paragraph five, we conclude that the provision in question is unambiguous. The court improperly concluded otherwise and found the defendant liable for $6683.80 in extracurricular activity expenses.

B

The defendant also challenges the court’s determination that he was liable for $10,145.79 in college expenses. He maintains that his quarrel with the college expense obligation concerned not the interpretation of the separation agreement but, rather, the plaintiffs failure to exhaust two custodial accounts that the defendant had established for the benefit of his children under the Uniform Gifts to Minors Act, General Statutes (Rev. to 1987) §§ 45-101 through 45-109b. Although the defendant presented that argument at the contempt hearing, he did not raise that claim in his memorandum of law in opposition to the plaintiffs motion for contempt and the court did not address the claim in its memorandum of decision. Indeed, the court’s decision does not reference the custodial accounts or contain any related factual findings. It therefore was incumbent on the defendant to request an articulation of that issue, consistent with his burden to provide this court with an adequate record for review. That he failed to do.

Under our rules of practice, it is the sole responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 61-10. Practice Book § 66-5 permits an appellant to seek an articulation by the trial court of the factual and legal basis on which it rendered its decision. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). Because he failed to secure an adequate record, we do not reach the merits of the defendant’s claim.

C

Also included in the judgment of contempt was a finding that the defendant owed $1363.97 in medical expenses. At the January 17, 2008 hearing, the defendant conceded that he had not complied with the order obligating him to pay a portion of the medical expenses of lüs children and agreed to pay $1363.97 in such expenses. That concession amply supports the court’s finding.

II

The defendant also contests the court’s contempt finding. Our Supreme Court recently clarified the standard of review applicable to civil judgments of contempt in In re Leah, 284 Conn. 685, 935 A.2d 1021 (2007). It stated: “[0]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) Id., 693-94. We apply that standard to each of the three bases of liability found by the court.

We begin with the court’s finding that the defendant failed to comply with the order obligating him to pay certain medical expenses of his children. That order clearly and unambiguously required the defendant to pay half the cost of any unreimbursed medical expenses. The defendant concedes that he failed to comply with that order and makes no argument on appeal that his failure could be construed as anything but wilful. Accordingly, the court did not abuse its discretion in finding him in contempt on that ground.

We next consider the court’s finding that the defendant failed to comply with the order requiring him to pay college expenses. Paragraph nine of the separation agreement provides in relevant part: “The [plaintiff] agrees to pay one quarter . . . and the [defendant] three quarters ... of the cost of tuition, room, board and books using the University of Connecticut as a cap, for the years pertaining to their daughters.” That provision confers a clear and unequivocal obligation on the defendant. The defendant acknowledges that he did not comply with that order but maintains that his refusal was justified in light of his claim concerning the exhaustion of the custodial accounts that he had established for the benefit of his children. We disagree.

“An order of the court must be obeyed until it has been modified or successfully challenged.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998). In Eldridge, an alimony payor was found to be in contempt for engaging in self-help rather than seeking a modification of the alimony order, specifically, for applying credits he believed he was owed against the amounts due under the order. Our Supreme Court held that the contempt finding was not an abuse of discretion, rejecting specifically the claim that the payor’s belief that he was entitled to credits necessarily precluded a finding of wilfulness. Id., 528-29; see also Sablosky v. Sablosky, 258 Conn. 713, 721, 784 A.2d 890 (2001) (ambiguous order does not automatically preclude finding of wilfulness). Similarly, the defendant here does not dispute that he failed to pay the amounts due pursuant to paragraph nine; he simply insists that those payments should be made from the custodial accounts. Given that position, we cannot say that the court abused its discretion in finding him in contempt on the basis of his failure to comply with the order requiring payment of college expenses.

The third basis for the finding of contempt concerns the court’s finding that the defendant failed to comply with the order requiring him to pay “one half the cost” of extracurricular activities. We already have determined that the court improperly concluded that the relevant provision contained in paragraph five of the separation agreement was ambiguous. A prerequisite for a finding of contempt is the existence of an order binding a party in some manner. Because the defendant, under the plain terms of the separation agreement, was not obligated to pay extracurricular activity expenses once employed, contempt cannot be found on that ground.

We conclude that the court’s finding that the defendant wilfully failed to meet his obligations concerning medical and college expenses was established by sufficient proof premised on competent evidence. The court properly exercised its discretion in finding the defendant in contempt on that ground. At the same time, the court’s finding of contempt regarding the defendant’s failure to pay extracurricular activity expenses cannot stand.

Ill

The defendant’s final claim challenges the award of attorney’s fees and costs rendered by the court. The court was empowered to award such fees pursuant to paragraph twenty-nine of the separation agreement. Furthermore, “General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court.” Esposito v. Esposito, 71 Conn. App. 744, 748, 804 A.2d 846 (2002). The court did not abuse its discretion in this instance.

The judgment is reversed only as to the finding of contempt to the extent that it is based on the defendant’s failure to pay extracurricular activity expenses and the case is remanded with direction to vacate that finding. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The modification agreement also included provisions as to visitation and vacation time that are not germane to this appeal.

       The plaintiffs December 26, 2007 postjudgment motion for contempt made no reference to the modification agreement. Her February 20, 2008 memorandum of law in support thereof similarly contained no such reference.

       The custodial accounts were established in 1987 and 1989 pursuant to General Statutes (Rev. to 1987 and Rev. to 1989) §§ 45-101 through 45-109b.

       To the extent that the defendant claims that the court failed to specify the precise basis for its award of attorney’s fees, the responsibility for perfecting the record was his. See Practice Book §§ 61-10 and 66-5; Fantasia v. Milford Fastening Systems, supra, 86 Conn. App. 283.