author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. JOSE LARACUENTE
    (AC 18091)
    Lavery, Landau and Hennessy, Js.

    Argued December 14, 1999
    released March 28, 2000

      Del Atwell, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).

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

   Opinion

LANDAU, J.

The defendant, Jose Laracuente, appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and three counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that (1) the prosecutor engaged in misconduct that violated the defendant’s constitutional right to a fair trial, (2) the trial court improperly instructed the jury on reasonable doubt, (3) the state failed to present sufficient evidence that the defendant sexually assaulted the victim and (4) he was denied effective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 8, 1996, the defendant was living in an apartment with a woman and her two children, one of whom was the eight year old victim. Sometime after 3 a.m. on that date, when the defendant normally left for work, the victim’s mother noticed that the victim was awake and assumed that she had had a nightmare. She later found the victim curled up in a ball on her bed. She was very quiet and behaving in a fashion that the mother considered to be unusual. Although the victim initially denied that anything was wrong when asked by her mother, she eventually informed her mother that the defendant had “touched her [privates].” The victim also told her mother that the defendant had been abusing her for some time.

The victim’s mother called the police to her home, and the victim recounted her allegation of sexual abuse to them. The victim was then taken to a hospital, where a physician found her vaginal area to be red, which was consistent with the victim’s claim that the defendant had inserted his fingers into her vagina. The victim was later interviewed by a therapist, Linda Foster of the Child Guidance Clinic, and by Captain Kathy Wilson of the Waterbury police department.

The defendant was charged with three counts of sexual assault in the first degree and three counts of risk of injury to a child. A jury found the defendant guilty on all six counts and this appeal followed. Other facts will be discussed where relevant to issues in this case.

I

The defendant first claims that he was denied a fair trial due to prosecutorial misconduct. Specifically, he claims that the state’s attorney improperly (1) commented on a prior sexual assault case against the defendant that had been nolled and dismissed, (2) mentioned that the defendant had violated a civil order of protection, which resulted in an increase in his bail bond, and (3) injected her personal opinions into final argument. We decline to review this claim.

The defendant failed to object to the prosecutor’s comments at trial. “ ‘It is well established that generally this court will not review claims that were not properly preserved in the trial court. ... A defendant may prevail on a claim of constitutional error not preserved at trial, however, if the defendant satisfies the four part standard set forth in State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)].’ ” State v. Barnett, 53 Conn. App. 581, 598, 734 A.2d 991, cert. denied, 250 Conn. 918, 736 A.2d 659 (1999). The defendant also failed to request that we review the claimed error pursuant to Golding. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” (Internal quotation marks omitted.) Id. The fact that the defendant has argued that this claim is one of constitutional magnitude does not, alone, satisfy the requirements of Golding. The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned. See id.; State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997). We therefore decline to review this claim.

II

The defendant claims next that the trial court improperly instructed the jury on reasonable doubt. He claims that the trial court diluted the reasonable doubt standard when it instructed the jury that a reasonable doubt is “a doubt which has its foundation in the evidence or lack of evidence.” We reject the defendant’s claim.

The defendant takes issue with the instruction as given because, according to him, a reasonable doubt need not be founded in the evidence or lack of evidence but must be consistent with the evidence or lack of evidence. The defendant relies on State v. Gallivan, 75 Conn. 326, 53 A. 731 (1902), for his assertion that the trial court’s instruction was an improper statement of the law. In State v. Ryan, 53 Conn. App. 606, 611-13, 733 A.2d 273 (1999), where the instructional language at issue was identical or substantially similar to that in this case, we concluded that reliance on Gallivan was misplaced. Id., 613. The language in Gallivan is different from the challenged language in this case. See id.

The defendant’s claim is unpreserved, and he has failed to request review pursuant to State v. Golding, supra, 213 Conn. 239-40. We decline to review this claim because of the absence of a Golding analysis.

Ill

In his third claim, the defendant asserts that the state presented insufficient evidence to prove that the defendant, in fact, sexually assaulted the victim. We disagree.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Payne, 40 Conn. App. 1, 14-15, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997).

The defendant points to the fact that the initial interview of the victim, done by the social worker, Foster, was not videotaped. According to the defendant, “ [without a videotape, the state may not have sufficiently proven that it was [the defendant] who engaged in intercourse with [the victim].” Additionally, the defendant claims that Foster’s testimony, which was “derived solely from what she was told by [the mother], a police officer and a confused, susceptible child,” was insufficient to prove the defendant’s guilt beyond a reasonable doubt.

In this case, the victim testified as to the circumstances of the defendant’s actions. Initially, the victim attempted to describe verbally the defendant’s acts. When she hesitated, the state proffered a statement written by the victim in which she recounted an event that had occurred when she lived with her mother, brother and the defendant at their previous address. The statement, which was admitted as a full exhibit, was written in response to a request by the prosecution for her to write down what she remembered. She also testified concerning an incident that had occurred when the defendant was watching television and asked her to lie down beside him. While on the couch and under the cover of a blanket, the defendant touched her “private area.” Additionally, she testified about the abuse that occurred on the night prior to her disclosure to her mother. The defendant had come into her bedroom and touched her in her “private area.”

Whether the victim was a “confused, susceptible child” was within the jury’s province to determine. “We dó not sit as the [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). We conclude that the cumulative effect of the evidence was sufficient to allow the jury to find beyond a reasonable doubt that the defendant did, in fact, sexually assault the victim.

IV

In his final claim, the defendant asserts that he was denied effective assistance of counsel. The defendant claims that he was denied effective assistance of counsel when his counsel (1) failed to file any pretrial motions, (2) failed to call an alibi witness, (3) failed to move for a mistrial where “constitutionally offending comments” were made by the prosecutor and (4) failed to file any posttrial motions. The proper forum in which to raise this issue is by petition for habeas corpus.

“We have long held that the proper forum in which to address claims of ineffective representation of counsel is in the habeas forum or in a petition for a new trial, rather than on direct appeal. See State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).” State v. Jones, 46 Conn. App. 640, 660, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). “As our Supreme Court has stated, an ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” (Internal quotation marks omitted.) Id., 661. We conclude, in accordance with precedent, that this issue must be resolved in a habeas corpus proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       The defendant also claimed, in his brief, that the sentence imposed by the trial court was harsh and excessive. This claim, however, was withdrawn during argument.

       The defendant asked, in the alternative, that we invoke our supervisory authority over the administration of justice and order a new trial based on the prosecutor’s comments about the prior sexual assault case that had been nolled and dismissed. There has not been a showing by the defendant of deliberate prosecutorial misconduct or other egregious or unduly offensive behavior. We therefore decline to exercise our supervisory authority to order a new trial. See State v. Rogers, 50 Conn. App. 467, 479, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).

       The unedited statement provided the following: “I remeber when we where living on baldwen street, that night he crawled in to bed with me and started to touch me. Then after he was done he told me don’t tell ok this is our SECRET.
      “And I agreed cause I didn’t want him to hurt me. After he told me it’s our SECRET he crawled back into my mom’s bed like nothing happened. That is all I remeber.”

       The victim placed a mark on the vaginal area of a drawing of a little girl, which the court admitted as a full exhibit, indicating that to be her private area.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. GREGORY J. CORREA
    (AC 18505)
    Foti, Landau and Daly, Js.
    Argued January 14
    officially released March 28, 2000

      Jennifer Rodriguez and Scott Leventhal, certified legal interns, with whom was Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Mitchell Rubin, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Gregory J. Correa, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103. On appeal, the defendant claims that (1) the trial court improperly refused to grant the defendant an evidentiary hearing on his motion to suppress, (2) his constitutional rights were violated by the seizure of evidence from his home, (3) there was insufficient evidence to convict him and (4) the trial court improperly admitted an out-of-court statement into evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Andrea Martin, and her family resided at 6 Maple Street in Darien. On January 7, 1997, the victim and her infant daughter were absent from their home from approximately 11:45 a.m. to 2 p.m. When she returned, the victim observed her home in disarray. She immediately went to a neighbor’s house and telephoned the police. Officers W. Scott Conlon and Saverio Boccuzzi of the Darien police department responded and discovered that an exterior and an interior door had been forcibly opened. The victim immediately determined that two pearl necklaces and two rings were missing.

Earlier, George Flay, who owned Rio Radio, a business adjacent to the victim’s home, observed an unfamiliar red motor vehicle parked in a spot reserved for his business tenant. He noted distinctive features about the automobile and recorded its marker number on a piece of paper. When Flay returned from lunch, he saw police at the victim’s home and told them of the unfamiliar vehicle, giving them the note containing the marker identification.

At about 12:30 p.m. that day, Vincent Lopiano, an employee of a business on Maple Street, was returning from lunch when he saw a tall, dark-skinned Hispanic man, about thirty years old, with a mustache, wearing a tan waist-length jacket and blue jeans in the victim’s driveway. Lopiano watched the man walk toward Rio Radio. Later, when he saw the police at the victim’s home, Lopiano approached them and gave them a description of the man he had seen in the driveway.

Detective Donald Anderson learned from the department of motor vehicles that the red automobile was registered to Sharon Whitley, who lived in New Haven. On January 8, 1997, Anderson and Detective Ray Osborne went to the New Haven address and observed the red automobile. They telephoned Whitley, who agreed to talk to them. When the detectives entered Whitley’s apartment, they heard a shower running and observed a tan leather jacket draped over a chair. The defendant, who fit the description given by Lopiano, emerged from the bathroom and admitted to having used the red automobile the previous day but denied having been in Darien. The detectives telephoned Lieutenant Ronald Bussell, who instructed them to secure the apartment until warrants to search the apartment and the automobile were delivered. The detectives informed the defendant that a search warrant was on its way and that they had to secure the apartment. They did not permit the defendant to leave with his laundry or the tan leather jacket.

About one hour later, Bussell arrived with search warrants authorizing the police to look for and confiscate four pieces of women’s jewelry, a black leather ring box, a black felt ring box and a tan waist-length jacket. Whitley was given copies of the search warrants. While searching the apartment, the police found a pair of gold cuff links in a Tiffany bag in a pair of large blue jeans. The victim identified the cuff links as matching a pair she had purchased as a gift for her husband and said that the Tiffany bag was the same size and type as one she had had in her home. The defendant was arrested six weeks after the burglary, pursuant to an arrest warrant issued on January 15, 1997. The defendant was convicted, and he filed a motion for a new trial, which was denied. The defendant appealed. Additional facts will be stated where necessary.

I

The defendant’s first claim is that the court improperly denied his motion to suppress the evidence the police seized from his apartment on January 8, 1997, specifically, the gold cuff links and the Tiffany bag, because they were not listed on the search warrants. The defendant requests an evidentiary hearing or a new trial. We conclude that the court did not abuse its discretion, and the relief requested by the defendant is not warranted.

The following facts are relevant to this claim. Defense counsel was appointed in March, 1997. A pretrial status conference was held on July 13 and 16,1997, the defendant filed a motion for a speedy trial. Jury selection began on January 13, 1998, and on that date the court heard two motions in limine filed by the defendant. On January 15, 1998, the defendant obtained a copy of the warrant to search the apartment from the Darien police department. That day, he filed a motion to suppress the evidence seized on January 8, 1997. Prior to January 15, 1998, a copy of the search warrant had not been placed in either the state or court files. Jury selection was completed on January 18, 1998. Several juries were selected at about that time and “stacked,” a procedure whereby a jury is picked for a trial to begin sometime in the future.

On January 27, 1998, immediately before the commencement of evidence in the case, the court heard arguments on the defendant’s motion to suppress, during which the court questioned whether the motions were timely under Practice Book §§ 41-4 and 41-5. Defense counsel argued that the motion was timely because she had just received a copy of the warrant on January 15, 1998, and she requested an evidentiary hearing on the motion to suppress, which would last one and one-half days. The defendant argued that the cuff links and Tiffany bag were illegally seized because they were not identified in the search warrant. Defense counsel argued that Practice Book §§ 40-11 and 40-13 require the state to disclose pretrial statements by witnesses and that the contents of the search warrant constituted a statement for which a hearing was required to give him an opportunity to confront fully the witnesses against him.

The prosecutor argued against the motion to suppress on the basis of timeliness. The court denied the motion, pursuant to Practice Book § 41-5, “on the basis of the totality of the circumstances, the timing and the filing of the motion on the eve of trial after the jury [was] picked.” After the jury rendered its verdict, the defendant filed a motion for a new trial, which the court also denied.

The abuse of discretion standard governs our review of the court’s denial of an evidentiary hearing on a motion to suppress. See State v. Fiocchi, 17 Conn. App. 326, 334 n.9, 553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d 609 (1989). “A motion under Sections 41-12 through 41-17 shall be made before trial or hearing in accordance with Section 41-5 unless opportunity therefor did not exist or the defendant or other moving party was not aware of the grounds of the motion, in which case such motion may be made at any time during the trial or the pendency of any proceeding. The judicial authority in its discretion may entertain such a motion at any time.” Practice Book § 41-15.

Practice Book § 41-5 provides in relevant part: “Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the judicial authority, at such later time as the judicial authority may fix. . . .” Practice Book § 41-4, however, provides in relevant part that “[failure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver . . . .” See State v. Pickles, 28 Conn. App. 283, 288, 610 A.2d 716 (1992) (defendant’s failure to raise due process defense by timely pretrial motion waived right to raise defense later).

Practice Book § 41-5 requires that all pretrial motions in a criminal matter shall be filed not later than ten days after the first pretrial conference. The defendant’s failure to make such pretrial motions within the time required constitutes a waiver unless the defendant can demonstrate good cause. See Practice Book § 41-4. Here, the pretrial conference was held on July 13,1997, and three days later the defendant filed a motion for a speedy trial. Six months later, during jury selection, the defendant filed a motion to suppress the cuff links and Tiffany bag. The defendant acknowledges that his suppression motion was not timely, but claims that good cause to grant a hearing existed because until the day the motion was filed, his counsel did not have a copy of the search warrant, which demonstrated that the items seized had not been listed on the warrant.

The defendant appears to blame the state for failing to provide him with a copy of the search warrant. Upon written request of the defendant, the state is required “to disclose in writing the existence of and allow the defendant ... to inspect, copy . . . any search and seizure warrants issued in connection with the investigation of the offense charged . . . .” Practice Book § 40-11 (a) (5). The defendant never asked the state to disclose the existence of the search warrant. The defendant knew that the detectives had obtained a search warrant prior to searching his apartment on January 8, 1997. The defendant’s girlfriend, Whitley, was given a copy of the warrant. For some reason, defense counsel decided to obtain a copy of the warrant from the Darien police department on the eve of trial. The option to obtain the warrant in that manner was always available to the defendant.

At the conclusion of the trial, the defendant filed a motion for a new trial and again asserted his request for an evidentiary hearing on his motion to suppress. In denying the motions, the court articulated further its reasons for not granting the defendant an evidentiary hearing.* * The court considered the context in which the motions were filed and the totality of the circumstances, concluding that the defendant’s motions were dilatory. Before this court, the defendant argued that the trial court chose administrative convenience over his constitutional rights when it denied his motion for a new trial and an evidentiary hearing. On the basis of the record, we cannot conclude that the court abused its discretion in denying the defendant’s request for an evidentiary hearing on his motion to suppress. The defendant has pointed to no good cause created by others as to why the hearing should have been granted on the eve of trial.

II

The defendant’s second claim is that the police violated his state and federal constitutional rights by seizing evidence from his home, specifically the gold cuff links and the Tiffany bag. Although the defendant has formulated his claim in the constitutional terms of an improper police search and seizure, the defendant’s real argument is that the trial court impermissibly admitted the cuff links and Tiffany bag into evidence. We are not persuaded, as this court has long held that a garden variety evidentiary claim may not be transformed into one of constitutional dimension by attaching to it a constitutional label. See State v. Hanson, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

During direct examination, the state asked the victim to identify the cuff links and Tiffany bag, which she did. The state then offered the items into evidence, and the defendant objected, citing the same reasons given in his motion to suppress, i.e., the items were not included on the search warrant. The trial court overruled the defendant’s objection.

“[OJur review of a trial court’s evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979). . . . State v. Nixon, 32 Conn. App. 224, 234, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995).” (Internal quotation marks omitted.) State v. Clark, 48 Conn. App. 812, 817, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998).

By objecting to the admission into evidence of the cuff links and Tiffany bag, the defendant attempted to get a second bite of the “suppression apple.” The defendant offered no rule of evidence as to why the cuff links and Tiffany bag were not admissible. “As a general matter, evidence ‘is admissible if it has a tendency to support a fact relevant to the issues if only in a slight degree.’ State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987).” Burns v. Hanson, 249 Conn. 809, 825, 734 A.2d 964 (1999). Here, the evidence was relevant and probative of the issue, namely whether the defendant entered the victim’s home with the intent to commit a crime therein. We conclude, therefore, that the court did not abuse its discretion in admitting the evidence.

Ill

The defendant’s third claim is that the evidence was insufficient to convict him of burglary in the third degree. Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that the defendant was the man Lopiano saw in the driveway of the victim’s home and that the defendant entered the victim’s home unlawfully. We disagree.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . .

“Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], 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 jury’s verdict of guilty. . . . Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 149-51, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

On the basis of our review of the evidence, we conclude that the jury reasonably could have found that the defendant drove his girlfriend’s red automobile to Darien on January 7, 1997, parked it adjacent to a business near the victim’s home and broke into the house by forcefully opening two doors. While the defendant was in the victim’s home, he took a pair of cuff links and a Tiffany bag. At some time during these events, a witness saw a man in the victim’s driveway who fit the description of the defendant, wearing clothes similar to those found in the defendant’s home. We conclude that the evidence was sufficient for a jury to find beyond a reasonable doubt that the defendant was guilty of having committed burglary in the third degree.

IV

The defendant’s final claim is that the court improperly admitted hearsay evidence, specifically the testimony concerning the defendant’s admission to Osborne, the police detective, that, on the day of the burglary, he had used the red motor vehicle that Lopiano had seen in the driveway of the victim’s home. We do not agree.

We review claims that evidence was improperly admitted by an abuse of discretion standard. See State v. Alvarez, supra, 216 Conn. 306. “Among the recognized exceptions to the hearsay exclusionary rule is that for admissions of a party. State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984), citing State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.1, p. 330; C. McCormick, Evidence (3d Ed. 1984) § 262, pp. 774-75. [Statements made out of court by a party-opponent are universally deemed admissible when offered against him; 4 Wigmore, Evidence (Chadbourn Rev. 1972) § 1048, p. 2; so long as they are relevant and material to issues in the case. State v. Stepney, supra, 251. [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial. Id.” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993).

The admission of Osborne’s testimony concerning the defendant’s use of the red motor vehicle on the date of the burglary was proper because it was an admission against the defendant. The defendant argues that the hearsay testimony should have been excluded because there was no evidence of the time the defendant used the automobile. This argument is unavailing when considered in context with the other evidence. The red automobile was seen parked near the victim’s home in Darien near the time of the burglary, a man fitting the defendant’s description was seen in the victim’s driveway at about the same time and jewelry belonging to the victim was found in the defendant’s possession. The hearsay statement was properly admitted as “an avowal or acknowledgment [by the defendant] of a fact or of circumstances from which guilt may be inferred . . . .” (Emphasis in original; internal quotation marks omitted.) Id. The trial court, therefore, did not abuse its discretion in admitting the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       Police showed Lopiano an array of eight photographs, including one of the defendant. Lopiano was not able to make a positive identification, but he selected two photographs, including one of the defendant, as resembling the man in the victim’s driveway.

       The warrant authorized the police to seize a small diamond ring, a ring containing two diamonds and three sapphires, a pearl necklace and an artificial pearl necklace.

       At that time, the court also discussed the defendant’s aborted pursuit of an alibi defense.

       “Upon motion, the judicial authority shall suppress potential testimony or other evidence if it finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.” Practice Book § 41-12.

       The defendant, on appeal, has not raised the claim that the warrant was a statement. We therefore deem this claim abandoned. See State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

       In his brief to this court, the defendant argued that knowledge of the warrant could not be imputed to him if it were given to Whitley. This argument is disingenuous. Before trial, the defendant and Whitley were married, and Whitley successfully moved to quash the subpoena for her testimony at trial based on spousal immunity.

       In denying the defendant’s motion for a new trial, the court found and concluded as follows: “On January 16th, 1998, the defendant files and argues a motion for additional peremptory challenges pursuant to [§] 54-82f of the Connecticut General Statutes, and alleged—the substance of which was that the nature of the crime, that is to say burglary, somehow invoked the sensitivity of the average juror. This motion was filed after two full days of jury selection and before the exhaustion of all peremptories by the defense. That motion was denied by Judge Tobin.
      “On January 17th and 18th, these days were weekend days and the court of course was not in session. On January 19th, the court was involved in the usual busy arraignment day after a weekend. On January 20th, 1998, the court commences the jury trial of a lengthy and complex matter, which runs straight through January 26th, and for which a jury was previously stacked pursuant to another speedy trial motion ....
      “On January 27th, a pretrial status conference was had with the state’s attorney and the defense in the instant matter. The court indicated to both counsel that the veritable plethora of last-minute motions was not going to delay the trial for which the jury had been picked and stacked for over one week, and after which time the state’s attorney had indicated, at least on several occasions, that state’s witnesses were lined up to testify. The record should also reflect that the court adjusted its own personal schedule because of the previous statements by the state's attorney that specific key witnesses were lined up to provide testimony. Counsel for the defense indicated that the motions in question, numbering at least nine, were filed on the afternoon of Friday, January 16th, at approximately 3 p.m. . . .
      “When pressed as to the time frame necessary for her motions, counsel indicated that the motion to suppress in particular would require a full evidentiary hearing involving at least a day or a day and one-half.
      “Counsel, in her motion, alludes to the state’s attorney’s failure to obtain and turn over a copy of the affidavit and warrant giving rise to the motion. Yet, in that very same motion, that is to say, the motion for a new trial, it appears that the information requested was readily available and obtainable by simple request of the Darien [police department]. The file and the record is devoid of any reference to a [Practice Book § 40-11] discovery motion being filed until the compendium of motions heretofore referred to were filed on the afternoon of January 16th, 1998. The file and the record is devoid of any filing of a discovery motion or motions for production with specific reference to the affidavit and warrant in question. The motion to suppress must be placed in its proper context. That is to say, the proper context of (a) the above findings of fact and chronology relating thereto; (b) the ease in obtaining the information giving rise to the motion, that is to say, accessibility; (c) the defendant’s motion for a speedy trial . . . the selection and stacking of the jury in question, the state’s attorney’s clear position as to availability and lineup of witnesses for trial. And finally . . . other serious matters pending before the court in the orderly flow of court business.
      “The totality of the circumstances permits the court to conclude that the motion to suppress bootstrapped to the instant motion for a new trial was (1) dilatory, (2) displayed as a tactic to delay, (3) intended to cause an interruption of court business [and] (4) would have jeopardized the maintenance of the jury, given the court’s previous advice as to the time frames involved.”

       The defendant specifically claims violation of article first, § 7, of the constitution of Connecticut and the fourth amendment to the United States constitution.

       We concluded in part I of this opinion that by failing to raise a due process defense by way of a timely pretrial motion, the defendant waived his right to raise that defense at a later time.

       See footnote 2.

       Direct examination of Osborne by the prosecutor was in part as follows:
      “Q. What, if any, questions did you ask [the defendant]?
      “A. Detective Anderson asked him a number of questions. I asked him specifically if he had the vehicle, the ‘94 Chevy Corsica, yesterday, if he was using the vehicle the previous day.
      “Q. What if anything was his response?
      “A. He said yes.
      “Q. What questions did you—what, if any, questions did you ask him next?
      “A. I believe I didn’t specifically ask him any further questions. Detective Anderson pursued his questioning after that.”


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. RONALD THORP
    (AC 18539)
    Foti, Hennessy and Mihalakos, Js.

      Argued December 1, 1999
    officially released March 28, 2000

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Marjorie Allen Dausler, assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, and Michael Pepper and Elpedio Vitale, senior assistant state’s attorneys, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Ronald Thorp, appeals from the trial court’s judgment granting the motion by the office of adult probation to modify the conditions of the defendant’s probation. On appeal, the defendant claims that the court improperly (1) enlarged the conditions of his probation prior to the commencement of the probationary term in violation of General Statutes § 53a-30 (c) and (2) imposed additional, more restrictive conditions on his probation without first permitting him to withdraw his guilty plea. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant pleaded guilty to sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). Pursuant to the plea agreement, he was sentenced to ten years imprisonment, execution suspended after three years, followed by five years probation. The court ordered, as a condition of probation to which the defendant had agreed, that he have no contact with the victim. The court also imposed as a special condition of probation, to which the defendant had not agreed or objected previously, that he undergo and cooperate with substance abuse evaluation and treatment as recommended by the office of adult probation. As the defendant neared completion of his prison sentence, the office of adult probation filed a motion to modify the conditions of his probation to include sex offender evaluation and treatment. The motion was granted and this appeal followed.

I

The defendant claims first that the court improperly imposed additional conditions of probation prior to the commencement of the period of probation. The defendant claims that the court was not authorized under § 53a-30 (b) or (c) to modify or enlarge the conditions of probation except during the period of probation. In addition, the defendant claims that the office of adult probation is not authorized by § 53a-30 (b) to modify the conditions of probation before the period of probation commences. We disagree.

“Probation is the product of statute. See General Statutes § 53a-28 et seq. Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions.” State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). “On appeal, the standard of review of an order of probation is whether the trial court abused its discretion. If it appears that the trial court reasonably was satisfied that the terms of probation had a beneficial purpose consistent with the defendant’s reformation and rehabilitation, then the order must stand. ... In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court’s ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986). [Finally, a] defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden. . . . State v. Smith, supra, [167]. . . . State v. Pieger, [240 Conn. 639, 648, 692 A.2d 1273 (1997)].” (Internal quotation marks omitted.) State v. Misiorski, 250 Conn. 280, 288-89, 738 A.2d 595 (1999).

Section 53a-30 (b) expressly allows the office of adult probation to impose reasonable conditions on probation. State v. Roberson, 165 Conn. 73, 76 n.1, 327 A.2d 556 (1973); State v. Cooley, 3 Conn. App. 410, 411 n.2, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1241 (1985). “[I]n determining whether a condition of probation [is proper] a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.” (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 170.

Here, the office of adult probation required that the defendant comply with additional conditions of probation involving sex offender treatment. That office “may require that the defendant comply with any or all conditions which the court could have imposed under [§ 53a-30] (a) which are not inconsistent with any condition actually imposed by the court.” General Statutes § 53a-30 (b). Sexual offender treatment is clearly enumerated in General Statutes (Rev. to 1995) § 53a-30 (a) (11), now subdivision (12), and could have been imposed by the sentencing court. Moreover, the additional conditions of probation are not inconsistent with the conditions imposed by the sentencing court. Namely, in addition to the usual terms of probation, the defendant also must have no contact with the victim, and the defendant must undergo substance abuse evaluation and treatment as recommended by the office of adult probation.

The office of adult probation requested the sex offender treatment as a condition of probation because the department of correction had evaluated the defendant and determined that he was a high risk to the community and had a great potential to offend again. At the hearing on the motion by the office of adult probation to modify the original probation conditions, the court cited § 53a-30 (b) and acknowledged that the probation office may require the defendant to comply with sex offender treatment, as it was not inconsistent with the other conditions imposed by the sentencing court and because there was good cause shown to add the condition. In addition, the court stated that under § 53a-30 (c), at any time during the probation period, after a hearing and for good cause, the court may modify and enlarge the conditions.

The defendant argues that the court had no authority to act as it did because it was not acting “during the period of probation or conditional discharge” as required by § 53a-30 (c). The defendant relies on State v. Deptula, 34 Conn. App. 1, 9, 639 A.2d 1049 (1994), for the proposition that similar wording in General Statutes § 53a-32 (a) was strictly construed so as to apply solely to the time period after the commencement of probation. Section 53a-32 (a) provides in relevant part that “[a]t any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . ...” In that case, the defendant had committed a crime while in the custody of the department of correction prior to the commencement of probation. Despite the fact that a warrant for the defendant’s arrest for the crime was issued during the period of probation, the court held that the phrase “during the period of probation” governed both when the warrant may be issued and when the conduct that could violate probation must occur. State v. Deptula, supra, 9.

We need not decide whether the trial court can modify the conditions of probation pursuant to § 53a-30 (c) only after the probationary period has commenced because the court approved of the added condition under both subsections (b) and (c). The court clearly stated that the office of adult probation had the authority to impose the additional condition of sex offender treatment. Although that office was not required by § 53a-30 (b) to request a hearing and court approval of the additional condition, it did so in this case. The defendant, therefore, was not prejudiced; his constitutional right to due process of law was protected, and he actually received more judicial process than that to which he was entitled. The defendant does not argue that there was no good cause to impose the requested condition. The defendant contends, however, that the court had no statutory authority to add a condition to his probation before his probation period began. The court reviewed the condition, found that it was warranted, complied with § 53a-30 (b) and approved the condition as requested. Because the office of adult probation had the authority pursuant to § 53a-30 (b) to add the condition of probation, the court’s unnecessary approval, as it affected the defendant, was a harmless procedure. As a result, the modification of the defendant’s probation was proper.

The defendant also claims that the office of adult probation cannot add conditions under § 53a-30 (b) because that office cannot have more authority than a court, which has to wait until the probationary period begins before it may add conditions to a defendant’s probation. We are unpersuaded. “Generally, no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase .... Insofar as it is possible, the entire enactment is to be harmonized, each part made operative.” (Citation omitted; internal quotation marks omitted.) State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). In State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994), this court affirmed and adopted the trial court’s judgment that § 53a-30 (b) and (c) are not in conflict and that the requirements of subsection (c) need not be impressed on subsection (b). The defendant has not given us a reason nor has he cited any authority for this court to modify or overrule Mobley. Accordingly, we conclude that the trial court’s decision to approve the additional probation conditions requested by the office of adult probation was not improper.

II

The defendant claims finally that the court improperly imposed additional conditions on his probation without giving him the opportunity to withdraw his guilty plea. The defendant argues that his guilty plea resulted from a plea agreement with the state and that the additional conditions of probation subsequently imposed exceeded the conditions to which he had agreed, thus violating the defendant’s state and federal due process rights. We disagree.

The defendant acknowledges that he failed to raise a claim with the trial court that the modification of the conditions of probation affected the validity of his guilty plea. The defendant, however, invokes review under State v. Golding, 213 Conn. App. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant’s claim fails the second prong of review under Golding because the defendant has failed to establish a violation of a constitutional right. We agree with the defendant and the holding in Green v. Warden, 17 Conn. App. 50, 52, 549 A.2d 679 (1988), that when a guilty plea is induced by promises arising out of a plea agreement, fairness requires that such promises be fulfilled by the state. We do not find that to be the case here, however.

In this case, the defendant bargained for a sentence that included a term of probation. The defendant could have rejected the offer of probation, but he could not accept some conditions and reject others. If he accepts the offer of probation, he must accept all of the conditions. State v. Smith, supra, 207 Conn. 169. In accepting probation, the defendant accepted at the time of sentencing the possibility that the terms of his probation could be modified or enlarged in the future in accordance with the statutes governing probation. Under these circumstances, the modified conditions of probation did not go beyond the terms of the plea bargain agreed to by the defendant. The modification of the terms of probation, therefore, was not a violation of his constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant concedes, contrary to his claim in the trial court, that the evaluation of him, done by the department of correction, provided the court with “good cause” to add further conditions to his probation.

       General Statutes (Rev. to 1995) § 53a-30 provides in relevant part: “(a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (2) undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose; (3) support his dependents and meet other family obligations; (4) make restitution of the fruits of his offense or malee restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance; (5) if a minor, (A) reside with his parents or in a suitable foster home, (B) attend school, and (C) contribute to his own support in any home or foster home; (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any criminal law of the United States, this state or any other state; (8) if convicted of a misdemeanor or a felony, other than a capital felony, a class A felony or a violation of section 21a-278, 21a.-278a, 53a-55, 53a-5G, 53a-56b, 53a-57, 53a-58 or 53a-70b or any offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court, and any sentence of imprisonment is suspended, participate in an alternate incarceration program; (9) reside in a residential community center or halfway house approved by the commissioner of correction, and contribute to the cost incident to such residence; (10) participate in a program of community service labor in accordance with section 53a-39c; (11) if convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b and (A) the conviction is of a second or subsequent violation of any of said sections or (B) at the time of the offense, the defendant was eighteen years of age or older and the victim was under thirteen years of age, undergo specialized sexual offender treatment; (12) satisfy any other conditions reasonably related to his rehabilitation. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.
      “(b) When a defendant has been sentenced to a period of probation, the Office of Adult Probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.
      “(c.) At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any. . . .”

       Although neither party addressed this issue, we note that § 53a-30 (a) was amended between the time of the offense and the time the condition of probation was imposed, eliminating certain conditions precedent to the imposition of treatment for sexual offenders. See Public Acts 1995, No. 95-142, § 3; see also General Statutes (Rev. to 1995) § 53a-30 (a) (11) (A) and (B). Because, however, the defendant had been previously convicted of sexual assault in the first degree, the trial court had the authority to impose sexual offender evaluation and treatment even under the prior revision of the statute.

       The defendant’s constitutional claims are not referred to in his preliminary statement of issues and although he makes mention of these claims in his brief, he fails to undertake a separate analysis indicating the manner in which the rights afforded him under the federal and state constitutions have been violated. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998).

       The defendant can prevail only if he meets all the criteria of the four-prong test of State v. Golding, supra, 213 Conn. 239-40: “(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.”


author: FOTI, J.

text:
    LARRY D. SPECTOR, TRUSTEE v. SIMON KONOVER ET AL.
    (AC 17904)
    O’Connell, C. J., and Foti and Spear, Js.

      Argued November 30, 1999
    officially released March 28, 2000

      William F. Gallagher, with whom were Richard J. Pascal and, on the brief, Amy M. Stone, for the appellant (plaintiff).

      Wesley W. Horton, with whom were Robert A. Randich and, on the brief, BageshreeRanadeBlasius, certified legal intern, for the appellees (defendants).

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

   Opinion

FOTI, J.

The plaintiff, Larry D. Spector, trustee, appeals from the judgment of the trial court rendered for the defendants. The plaintiff claims that the court improperly concluded that the defendants met their burden of proving that they did not breach their fiduciary duty to the plaintiff. The plaintiff further argues that the court improperly concluded that the plaintiff is not entitled to damages caused by the defendants’ breach of their fiduciary duty. Because we find that the defendants did violate their fiduciary duty to the plaintiff, we reverse the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The plaintiff is the successor in interest to Martin Spector, one of four individuals who reached an oral agreement in 1961 to build a shopping center in Seymour. In 1961, Martin Spector and Abner Rosenberg executed a lease of land in Seymour, and then approached Marvin Patron and the named defendant Simon Konover to build a shopping plaza on the land. While no written partnership agreement was drafted, the four orally formed Tri Town Realty Co. (Tri Town), a general partnership in which each partner received a 25 percent interest. In return for their respective shares in the partnership, Martin Spector and Rosenberg contributed the land lease, while Patron and Konover were charged with building, operating and managing the shopping plaza.

Konover and Patron initially managed the shopping plaza themselves, charging the partnership for any out-of-pocket expenses they incurred. Over time, as Konover and Patron amassed twenty or thirty shopping centers, they formed K and P Management Company. K and P Management Company hired managers and leasing agents to manage all of Konover’s and Patron’s properties, and charged management fees and leasing commissions to all of their properties, including Tri Town. Eventually, K and P Management Company was replaced by the defendant Konover Management Corporation, which managed the Tri Town plaza for the last ten years of the partnership.

Konover’s duties in managing Tri Town included the preparation and distribution of monthly reports to each of the partners. In the early 1980s, the plaintiff resolved to take a greater interest in monitoring the partnership because he felt that Konover’s reports did not adequately explain the finances of the partnership. The plaintiff also was concerned about the minimum distributions that were being made to each partner. The defendants apparently determined the amount of money that was to be distributed to the partners as profit, and the plaintiff felt that the amount being distributed was too low. In fact, the plaintiff claimed that because the partnership was showing significant income but was distributing relatively little to the partners, the trust was developing a tax burden that it could not pay.

In June, 1985, the plaintiff made his first written request, through counsel, for an increase in the distributions. In September, 1985, Konover increased the distributions from $500 per month to $1200 per month. In February, 1989, the plaintiff again wrote to Konover. This time, the plaintiff requested an increase in the distribution of profits and an explanation of various expenses appearing on the monthly report. The plaintiff further requested an explanation as to why the trust was not receiving any interest earned on partnership funds. The plaintiff did not receive a response from Konover and, in May, 1989, the plaintiff hired counsel in his home state of Arizona, who wrote a letter to Konover, demanding that the partnership be terminated. The plaintiff received no response to this demand.

In April, 1990, the defendants stopped making profit distributions to the plaintiff. The defendants’ purported reason for withholding disbursements was that Ames department store, one of Tri Town plaza’s largest tenants, had declared bankruptcy. The defendants claimed that they needed to create a buffer reserve of cash to meet any expenses created by Ames’ bankruptcy and the potential closing of Ames’ Tri Town store.

According to testimony and exhibits admitted at trial, the plaintiff in 1994 hired a certified public accountant to review the financial records of the partnership. The accountant’s review revealed that the defendants did not maintain any account dedicated solely to the Tri Town partnership. Rather, the Tri Town partnership funds were commingled with funds from several other Konover entities, and all the funds were commingled in one account called the K and R Associates Trust Fund (K and R). The accountant further discovered that not only were the funds commingled in one account, but the Tri Town funds were actually being diverted to and used by other properties owned by Konover. Even though Tri Town funds supposedly were kept in the K and R checking account, the balance of the entire K and R account actually was far less than the amount purported to be in the Tri Town partnership account. Additionally, interest earned on Tri Town funds was not credited to Tri Town’s account and was not distributed to the individual Tri Town partners.

At trial, Konover admitted to diverting funds between his various entities. He and several of his employees testified that by sharing the funds in the K and R account, the defendants could use one property’s funds to cover expenses incurred by another property. For instance, if one property needed repairs but did not have enough cash to pay for the repairs, the defendants would use cash from another property to pay for those repairs. It was, therefore, advantageous for the defendants to commingle the funds of different Konover entities so that one property’s funds could be used to cover an overdraft of another entity.

The Tri Town partnership was terminated in 1994, with the plaintiff receiving his 25 percent share of the partnership’s cash balance. The plaintiff then purchased the remaining 75 percent interest in the Tri Town plaza. On October 31, 1995, the plaintiff filed the action that is the subject of this appeal, seeking damages stemming from the defendants’ breaches of their fiduciary duties in managing the Tri Town partnership. The court found that the defendants did in fact owe the plaintiff a fiduciary duty, but that they proved by clear and convincing evidence that they dealt with the plaintiff fairly and that they breached no fiduciary duty. We disagree.

I

The plaintiff argues that the court improperly determined that the defendants did not breach their fiduciary duties to the plaintiff. This claim is subject to a clearly erroneous standard of review. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . State v. Hodge, 248 Conn. 207, 218-24, 726 A.2d 531 (1999).” (Internal quotation marks omitted.) State v. King, 249 Conn. 645, 660, 735 A.2d 267 (1999).

In determining whether the court’s decision was clearly erroneous, we must examine the court’s decision in the context of the heightened standard of proof imposed on a fiduciary. It is undisputed that the plaintiff and Konover were partners. Our Supreme Court has recognized that partners are generally “bound in a fiduciary relationship and act as trustees toward each other and toward the partnership.” (Internal quotation marks omitted.) Oakhill Associates v. D'Amato, 228 Conn. 723, 727, 638 A.2d 31 (1994). “Proof of a fiduciary relationship imposes a twofold burden on the fiduciary. First, the burden of proof shifts to the fiduciary; and second, the standard of proof is clear and convincing evidence. Once a fiduciary relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 229-30, 635 A.2d 798 (1994). We therefore must determine whether the court was clearly erroneous in determining that the defendants proved fair dealing by clear and convincing evidence.

A

The defendants’ practice of diverting Tri Town funds to other entities and retaining interest earned on Tri Town partnership funds constitutes a breach of fiduciary duty. Our Supreme Court has stated that “[i]t is a thoroughly well-settled equitable rule that any one acting in a fiduciary relation shall not be permitted to make use of that relation to benefit his own personal interest. This rule is strict in its requirements and in its operation. It extends to all transactions where the individual’s personal interests may be brought into conflict with his acts in the fiduciary capacity, and it works independently of the question whether there was fraud or whether there was good intention. . . . The rule applies alike to agents, partners, guardians, executors and administrators.” (Emphasis added; internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 401-402, 721 A.2d 1181 (1998), quoting State v. Culhane, 78 Conn. 622, 628, 63 A. 636 (1906).

The defendants’ misuse of partnership property is a clear case of self-dealing and a violation of their fiduciary duty to the plaintiff. As managing partner, Konover held a unique position of responsibility within the partnership. The plaintiff trusted the defendants to act in the best interest of the partnership. Instead, the defendants used partnership funds to finance other entities owned by Konover and retained interest generated by Tri Town funds. This misuse of partnership funds for Konover’s personal financial gain clearly constitutes a breach of fiduciary duty.

The defendants claim that because the plaintiff and Konover were parties to a sophisticated business venture, a more relaxed fiduciary duty applies. The defendants point to Konover Development Corp. v. Zeller, supra, 228 Conn. 228, which held that in certain circumstances a fiduciary may demonstrate that a particular transaction is fair by showing (1) that the fiduciary made a free and frank disclosure of all the relevant information he had, (2) that the consideration was adequate, (3) that the principal had competent and independent advice before completing that transaction, and (4) the relative sophistication and bargaining power among the parties.

The Zeller standard effectively preserves the heightened standards required of fiduciaries while allowing parties in a fiduciary relationship the flexibility to contract freely among themselves. The standard articulated in Zeller is most appropriately applied in situations where a principal challenges the fairness of a particular transaction in which both the principal and the fiduciary made a fully informed decision to act in a manner that is seemingly contrary to the normal fiduciary relationship. Implicit in the Zeller standard is the requirement that the principal consent to the transaction carried out by the fiduciary. To invoke the Zeller standard in an attempt to justify the fairness of a particular transaction, the fiduciary must first be able to show that there was some agreement among the parties allowing the fiduciary to act in a manner that may otherwise be a breach of fiduciary duty.

In the present case, there was no evidence of an explicit agreement allowing the defendants to use partnership property for Konover’s personal gain. There also is no evidence of an explicit agreement granting Konover the right to retain interest earned on partnership funds. On the contrary, the plaintiffs 1989 letter, in which he requested an explanation as to why interest was not appearing on the financial reports, demonstrates that the plaintiff never agreed to give Konover exclusive rights to interest earned on partnership funds.

Furthermore, even under the Zeller standard, the defendants breached their fiduciary duty by not making a free and frank disclosure of all the relevant information. In fact, the defendants provided the plaintiff with misleading information. For example, the defendants issued the plaintiff a financial report indicating that there was $378,302 in Tri Town’s account on December 31, 1993, while the actual account held only $2220.

There also is no evidence indicating that the defendants made a free and frank disclosure as to Konover’s appropriation of interest earnings. Konover claimed that by being more than just a manager of the Tri Town plaza, he was entitled to retain the interest earned by partnership funds. In the absence of an explicit agreement granting him this right, however, Konover’s actions constituted a breach of his fiduciary duty to the plaintiff.

B

The plaintiff also claims that the defendants’ commingling scheme affected their decisions regarding the disbursement of profits to the Tri Town partners. We agree with the plaintiff and conclude that the defendants’ failure to make greater distributions of profits was a breach of their fiduciary duty.

As noted previously, the defendants stopped making profit distributions to the plaintiff in April, 1990. The defendants’ proffered reason for withholding disbursements was that they wanted to create a large cash reserve to cover any expenses that might have arisen from the bankruptcy of one of their largest tenants, Ames. According to the facts presented at trial, however, the defendants did not actually maintain a reserve account dedicated to potential expenses related to Ames’ bankruptcy. Rather, the defendants continued their practice of diverting Tri Town funds to cover the expenses of other Konover properties. From the record, it is clear that the defendants’ decision to withhold the disbursement of profits from the plaintiff was, at least in part, motivated by their desire to use Tri Town funds to finance other Konover entities. This, too, was a breach of the defendants’ fiduciary duty to the plaintiff.

C

The plaintiff also claims that the defendants breached their fiduciary duty by billing the Tri Town partnership for management fees, leasing commissions, payroll maintenance fees and undisclosed overhead charges included in Tri Town’s insurance premiums. We agree.

Even under the Zeller standard, the defendants breached their fiduciary duty to the plaintiff. As noted previously, one of the factors to consider in determining whether a particular transaction is fair is whether “the principal had competent and independent advice before completing that transaction.” (Internal quotation marks omitted.) Id. Implicit in this factor is the idea that the principal must consent to the transaction. With regard to the management fees and leasing commissions that the defendants charged the partnership, the court found that there never were any meetings or partnership votes giving the defendants the right to receive such compensation. In the absence of any agreement to the contrary, the defendants were not entitled to any compensation, other than reimbursement for out-of-pocket expenses, for managing Tri Town. See General Statutes § 34-335.*

Even after the plaintiff complained to Konover about the management fees, the defendants began charging the partnership an additional “payroll maintenance fee.” These new fees were clearly not authorized by the plaintiff. Additionally, the insurance premiums charged to Tri Town included undisclosed overhead costs that were paid to another Konover entity. Thus, the defendants did not make a “free and frank disclosure of all the relevant information . . . .” (Internal quotation marks omitted.) Konover Development Corp. v. Zeller, supra, 238 Conn. 228.

Konover, without the formal consent of his partners, compensated himself for managing Tri Town. The defendants also added hidden charges to the insurance premiums charged to Tri Town. These acts of self-dealing were in breach of the defendants’ fiduciary duty. Thus, we conclude that the trial court’s finding that the defendants proved fair dealing by clear and convincing evidence was clearly erroneous. See id., 229-30.

II

The defendants’ breaches of their fiduciary duty to the plaintiff entitle the plaintiff to damages, including the reimbursement of any improper fees and charges, interest for the loss of use of profits, and a constructive trust over the profits the defendants received through improper use of partnership funds. Additionally, we conclude that the defendants’ actions constitute a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; accordingly, the plaintiff also is entitled to damages provided under that act.

A

Our general standards governing the imposition of a constructive trust are well established. “[A] constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. . . . Moreover, the party sought to be held liable for a constructive trust must have engaged in conduct that wrongfully harmed the plaintiff.” (Citations omitted; internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113-14, 680 A.2d 1314 (1996). The defendants wrongfully retained interest generated by partnership funds and secretly used partnership assets to finance other Konover owned properties. The defendants were unjustly enriched through their misuse of Tri Town assets, and a constructive trust is an appropriate remedy.

B

The plaintiff further claims that the defendants’ conduct amounts to a violation of CUTPA. CUTPA provides a private cause of action to “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . . .” General Statutes § 42-110g (a). Although CUTPA does not apply to purely intracorporate conflicts, our Supreme Court has stated that CUTPA does apply where one’s actions go “well beyond governance of the [partnership], and [place] him in direct competition with the interests of the [partnership].” Fink v. Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996). Here, the defendants diverted partnership funds to benefit other Konover owned properties. The defendants delayed the disbursement of Tri Town profits to the plaintiff so that those funds could be used to finance Konover’s other entities. Those actions clearly placed the defendants in direct competition with the interests of the Tri Town partnership and are, therefore, a violation of CUTPA.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff and for further proceedings to determine damages consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are Simon Konover and his real estate management corporation, Konover Management Corporation.

       The plaintiff challenges the trial court’s finding that the defendants did not violate their fiduciary duty to the plaintiff by (1) diverting partnership funds to other entities owned by the defendants, (2) delaying disbursements of profits earned by the partnership and (3) charging the partnership lees for management services provided by the defendants.

       In addition to responding to the arguments raised by the plaintiff on appeal, the defendants raise, as an alternative basis for affirming the judgment of the court, the argument that 1he plaintiff released the defendants from liability. The defendants asserted this as a special defense at trial, but the court made no findings regarding this issue, and the defendants did not request an articulation as to this special defense. Because the record is inadequate for our review, we will not address this issue.

       Three of the four individuals now are deceased. The defendant Simon Konover is the only surviving partner.

       Martin Spector died in 1974, leaving a trust that was managed by his son, the plaintiff, Larry D. Spector.

         The plaintiff originally brought an action in Arizona in 1990 to dissolve the partnership, but the action was dismissed for lack of personal jurisdiction.

       For example, the Tri Town partnership balance, as reflected by the company’s general ledger for December 31, 1993, and on the partnership’s 1993 tax return, was $378,302. The total cash balance of the K and R checking account, which contained funds from the Tri Town partnership as well as sixteen other Konover owned properties, was, however, only $2220. Also, Tri Town’s reported balance on December 31, 1992, was $463,877, while the actual balance of the K and R checking account was only $153,801. Again, the K and R checking account purportedly contained the funds of the Tri Town partnership as well as sixteen other properties.

       The defendants also argue that during the early years of the partnership, Konover personally covered Tri Town partnership expenses with interest free loans. This, according to Konover, justified his policy of retaining any interest earned by partnership funds. While Konover may have viewed the partnership as a casual “give and take” relationship, his retention of partnership assets, absent any explicit agreement, was a breach of his fiduciary duty.

       See footnote 6 for examples of the amounts maintained in “Tri Town’s account” during the time that the defendants were supposedly creating a large reserve to prepare for Ames’ possible departure from the plaza.

       General Statutes § 34-335 (c) provides that a partner is to be reimbursed for out-of-pocket partnership expenses. General Statutes § 34-335 (h) provides in relevant part that “[a] partner is not entitled to remuneration for services performed for the partnership . . . .”

        Ostrowski v. Avery, 243 Conn. 355, 379, 703 A.2d 117 (1997).