author: PELLEGRINO, J.

text:
    FIRSTLIGHT HYDRO GENERATING COMPANY v. FIRST BLACK INK, LLC
    (AC 34512)
    Lavine, Sheldon and Pellegrino, Js.

      Argued March 11
    officially released June 25, 2013

      Peter C. Hunt, for the appellant (defendant).

      Giovanna Tiberii Weller, with whom were Saima J. Zuberi and, on the brief, Richard L. Street, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

This appeal arises from a summary process action based on lapse of time of a written commercial lease between the plaintiff landlord, FlrstLight Hydro Generating Company, and the defendant tenant, First Black Ink, LLC. The defendant appeals from the judgment of the trial court awarding immediate possession of the subject premises to the plaintiff. On appeal, the defendant claims that the court incorrectly found that the defendant waived its right to be served with a notice to quit possession prior to the plaintiff commencing the summary process action, and that, without service of a notice to quit, the court lacked subject matter jurisdiction over the action. Because we find that the defendant waived its right to a notice to quit, we affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On July 31, 1996, the plaintiffs predecessor, Connecticut Light and Power Company, entered into a written lease agreement (lease) with the defendant for the commercial use and occupancy of certain land and water located in the town of New Fairfield (premises). The lease encompassed a nine year, five month period of time expiring on December 31,2005. The defendant took possession of the premises pursuant to the lease and continues to occupy the same, although the term of the lease has expired.

On October 12, 2011, the plaintiff commenced a summary process action against the defendant seeking a judgment of eviction and immediate possession of the premises. The plaintiff did not serve the defendant with a notice to quit possession prior to commencing the action; however, the complaint alleged that in paragraph 17 of the lease, the defendant waived its right to a notice to quit. That paragraph of the lease provides, in its entirety: “Lessee’s Default. If the [ljessee fails to make any payment due hereunder within ten (10) days of when it is due, or fails to cure each default in its compliance with any of the other terms and conditions of this [l]ease within thirty (30) days after the date of [lessor’s] notice specifying each such default, then this [l]ease shall terminate, and [lessor] may at any time thereafter reenter the [premises, or without such reentry, recover possession thereof in the manner prescribed by the statutes relating to [s]ummary [p]rocess. No demand for the rent, and no reentry for conditions broken, as at common law, shall be necessary to enable [lessor] to recover such possession, pursuant to said statutes relating to [s]ununary [p]rocess. Lessee hereby EXPRESSLY WAIVES all right to any such demand or notice of reentry. The [ljessee FURTHER WAIVES all right to any notice to quit possession as may be prescribed by the statutes relating to [s]ummary [p]rocess.” (Emphasis in original.)

The defendant moved to dismiss the complaint, arguing that the court lacked subject matter jurisdiction over the action because the plaintiff had failed to serve a notice to quit pursuant to General Statutes § 47a-23 (a) prior to commencing the summary process action. The court denied the motion and concluded that, pursuant to the terms of the lease, the defendant had waived its right to notice in accordance with General Statutes § 47a-25. The defendant then filed an answer and special defense, asserting again that the plaintiffs failure to serve a notice to quit deprived the court of subject matter jurisdiction to hear the action.

The court conducted a trial in this matter on March 5,2012. On March 28,2012, the court rendered judgment in favor of the plaintiff and awarded it immediate possession of the premises. In the accompanying order, the court noted that, pursuant to § 47a-25, a written lease may contain an express waiver of service of a notice to quit where termination is based upon a lapse of time. The court then held that because the lease stated that “[t]he [l]essee FURTHER WAIVES all right to any notice to quit possession as may be [prescribed] by the statutes relating to [s]ummary [p]rocess,” the defendant had waived its right to service of a notice to quit. This appeal followed.

On appeal, the defendant contends—as it has throughout the trial court proceedings—that it did not expressly waive its right to a notice to quit, and accordingly, the trial court lacked subject matter jurisdiction over the action. The defendant further asserts that the court incorrectly found it had waived its right to a notice to quit, claiming that because the waiver language in the lease is contained in a paragraph that concerns only the plaintiffs rights upon the “lessee’s default” of its obligations, the waiver does not extend to the circumstances present here, where the lease terminated for lapse of time. We are not persuaded.

We first set forth the standard of review and general legal principles applicable to our disposition of this appeal. “A notice to quit is a condition precedent to a summary process action and, if defective, deprives the court of subject matter jurisdiction.” Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007). As our Supreme Court has recognized, “because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Id. “Furthermore, [s]ummary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Internal quotation marks omitted.) Id., 5-6.

“In construing a written lease . . . three elementary principles must be [considered]: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; [and] (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Id., 8. Where the language of a written lease is unambiguous, our review of the trial court’s interpretation of the lease agreement involves a question of law subject to plenary review. See, e.g., Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 189, 195, 880 A.2d 945 (2005) (“[o]ur review of unambiguous provisions of a lease is plenary”); see also Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., supra, 284 Conn. 7-8 (review of court’s determination of intent based solely on language of lease agreement “involves a question of law over which our review is plenary”).

The resolution of this appeal turns on the interpretation of the waiver language contained in paragraph 17 of the lease, and specifically, whether that language constitutes a waiver of a notice to quit where the lease terminates for lapse of time. The defendant claims that our reading of the waiver provision must be constrained by the fact that the title of paragraph 17 and the remainder of its provisions refer to the context of a lessee’s default. The defendant argues that the waiver has no application in circumstances beyond termination of the lease by default of the lessee and does not apply here. The plaintiff, by contrast, asserts that we must read the waiver provision of paragraph 17 in the context of the lease as a whole and in conjunction with the summary process statutes—which allow for waiver of a notice to quit only where the operative lease terminates for lapse of time. See General Statutes § 47a-25. The plaintiff thus contends that, notwithstanding the heading or other provisions of paragraph 17, the waiver language must be read as an express waiver of a notice to quit where the lease terminates for lapse of time and, accordingly, operated to waive the defendant’s right to a notice to quit in this case. We agree with the plaintiff.

Here, as both parties recognize, the heading and initial sentences of paragraph 17 of the lease relate to circumstances in which the lessee defaults on its obligations under the lease. That fact alone is not dispositive, however, because paragraph 17 is also the only paragraph of the lease to mention summary process actions and the statutory requirements pertaining to such actions. The relevant waiver language appears at the end of the paragraph, after the references to the lessee’s default and the initial mention of the summary process statutes, and states that the lessee “FURTHER WAIVES all right to any notice to quit possession as may be prescribed by the statutes relating to [sjummary [process.” (Emphasis added.) Reading paragraph 17 in the context of the lease as a whole, as we must, we conclude that the relevant waiver language is not limited to the default context and instead provides that the defendant waived all rights to any notice to quit as allowed by the statutes in any summary process action. See Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., supra, 284 Conn. 8 (“the lease must be construed as a whole” [internal quotation marks omitted]); cf. Imation Corp. v. Koninklijke Philips Electronics N.V., 586 F.3d 980, 987 n.3 (Fed. Cir. 2009) (court unwilling to resolve contract interpretation question based on section headings “where doing so would conflict with the plain reading of operative language elsewhere in the contract”).

Although Connors v. Clark, 79 Conn. 100, 63 A. 951 (1906), predated the enactment of § 47a-25, our Supreme Court’s inteipretation of a similarly positioned waiver provision is illuminating. In Connors, the complaint in a summary process action alleged that a written lease terminated by lapse of time; id., 102; but did not “allege the giving of a notice to quit as provided by statute.” Id., 103. The lessees contended that “without such notice the summary process could not be successfully maintained.” Id., 103. The court referenced the parties’ written lease, which provided that “all right of notice to quit possession is expressly waived by . . . lessees.” (Internal quotation marks omitted.) Id. The court noted that the provision was “found in a paragraph which deals solely with terminations from other causes than lapse of time, and stipulates for such terminations, and it is connected with the body of that paragraph by the conjunction ‘and.’ ” Id. The court, however, concluded: “Notwithstanding the argument drawn from this fact, we think that it is apparent that the intention of the parties was that the waiver provision in question should be as comprehensive as its language naturally implies, and include ‘all’ right of notice, and not a right of notice under certain conditions created by the paragraph in which it chances to appear.” (Emphasis added.) Id. Likewise, here, the last sentence of paragraph 17 explicitly states that the lessee waives “all right to any notice to quit” as prescribed by the summary process statutes. Reading this provision “as comprehensive[ly] as its language naturally implies”; id.; we cannot conclude that the waiver in question pertains only to the lessee’s default context.

Furthermore, we note that the “statutes relating to [s]ummary [p]rocess” referenced in the waiver provision at issue allow for the waiver of a notice to quit in only one circumstance—where the operative lease terminates for lapse of time. See General Statutes § 47a-25. Reading a “lessee’s default” contextual requirement into the waiver provision would effectively read the provision out of the lease, as it would be unenforceable under the summary process statutes. See General Statutes § 47a-4 (b). A reading which renders the waiver provision superfluous does not comport with our precedent requiring us to construe a lease “in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., supra, 284 Conn. 8; see also United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674, 791 A.2d 546 (2002) (“[t]he law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found that the plaintiff had been assigned Connecticut Light and Power Company’s rights under the lease.

       General Statutes § 47a-23 (a) provides in relevant part: “When the owner or lessor . . . desires to obtain possession or occupancy of any land or building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time . . . such owner or lessor . . . shall give notice to each lessee ... to quit possession or occupancy of [the premises] at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee ... to quit possession . . . .”

       General Statutes § 47a-25 provides: “When, in any written lease of any land, building, apartment or dwelling unit, notice to quit possession has been expressly waived by the lessee in the event such lease terminates by lapse of time, the three days’ notice prescribed in [§ 47a-23] shall not be necessary; and complaint and summons may issue in the same manner as if such notice to quit had been previously given.”

       Neither party has asserted that paragraph 17 of the lease is ambiguous.

       We are not persuaded by the defendant’s contention that the waiver provision does not constitute an “express waiver” within the meaning of § 47a-25 because it does not contain the words “express” or “lapse of time.” The penultimate sentence of paragraph 17 indicates that the lessee “expressly waives” the right to a demand for rent or a notice of reentry in the event of a default, and the word “further” in the final sentence of the paragraph suggests that the waiver of the notice to quit is a continuation of the list of rights the lessee “expressly waive[d]” in the preceding sentence. Moreover, as discussed in further detail herein, the waiver provision allows for the waiver of a notice to quit “as may be [prescribed] by the statutes relating to [s]ummaiy [p]rocess, ” wMch only allow for the waiver of a notice to quit in the lapse of time context.

       In light of our precedent requiring us to give effect to every provision of a lease, we cannot accept the defendant’s line of argument essentially asking us to ignore the final sentence of paragraph 17 and assume that the waiver provision either was included erroneously in the lease as a holdover from a form lease drafted prior to the amendment of § 47a-25 in 1980, or was inserted into the lease as a purposefully unenforceable waiver clause. Our conclusion in this regard is supported further by paragraph 34 of the lease, which states: “If any term, covenant, condition or provision of this [l]ease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this [ljease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this [ljease shall be valid and be enforced to the fullest extent permitted by law.” Under paragraph 34, the only possible reading of the waiver provision in paragraph 17 is its lawful, enforceable meaning—a waiver of the right to a notice to quit where the lease terminates for lapse of time.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    JEFF DZIEDZIC v. PINE ISLAND MARINA, LLC
    (AC 34462)
    Graendel, Beach and Alvord, Js.
    Argued April 15
    officially released June 25, 2013

      Thomas J. Weihing, with whom, on the brief, was Dana P. Lonergan, for the appellant (defendant).

      James Colin Mulholland, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

This breach of contract action involves a defendant that received notice of the proceedings but elected not to appear, leading to a default judgment in favor of the plaintiff, Jeff Dziedzic. The defendant, Pine Island Marina, LLC, now appeals from the judgment of the trial court denying its motion to open that judgment. We affirm the judgment of the trial court.

As our Supreme Court has explained, the entry of a default judgment conclusively establishes the facts alleged in the plaintiffs complaint. Smith v. Snyder, 267 Conn. 456, 468, 839 A.2d 689 (2004). The plaintiffs complaint sets forth the following relevant facts. At all relevant times, the defendant operated a commercial marina business (marina) in Groton. On June 12, 2008, the parties executed an employment contract (contract) pertaining to the plaintiffs work as general manager of the marina. The contract term commenced on May 9, 2008, and concluded on May 9, 2013.

The contract contained a number of provisions related to the potential sale of the marina. It provided the defendant with the option to terminate the contract without cause on thirty days written notice of such a sale. It further provided that, in the event that the defendant terminated the contract due to the sale of the marina during the third year of the contract, the defendant would be obligated to pay the plaintiff $76,000. On December 22,2010, the defendant furnished written notice to the plaintiff that it was exercising its option to terminate the contract due to the upcoming sale of the marina. On or about January 7, 2011, the defendant sold the marina to BLP Enterprises, Inc., for approximately $3.8 million.

Despite repeated demands made by the plaintiff, the defendant refused to comply with its contractual obligation to pay him $75,000. The defendant also refused to provide the plaintiff with notice of any reasons or causes upon which it relied to justify its withholding of that payment. The defendant’s refusal to tender that payment deprived the plaintiff of a substantial benefit that he reasonably expected to receive under the express terms of the contract, which constituted a material breach thereof. The defendant’s refusal to comply with its contractual obligations was prompted by “dishonest purpose, moral obliquity, furtive design, ill-will, reckless indifference to [the plaintiff s] rights under the contract and an intentional and wanton violation of [his] contract rights” and it caused “emotional distress to [the plaintiff], including undue stress, humiliation, anger, anxiety, fear, frustration, embarrassment, loss of sleep, loss of appetite and a strain to [the] plaintiffs marital relationship.”

As a result, the plaintiff commenced the present action on January 21, 2011, by filing an application for a prejudgment remedy that named “Stewart Title Guaranty Company dba Stewart Title Company” (Stewart) as a third person holding property of the defendant. As the court found in its memorandum of decision, service of process was made on the agent authorized to accept service on behalf of the defendant. A hearing was scheduled on the matter for February 22, 2011, at which the defendant did not appear. The court subsequently ordered in relevant part that “the plaintiff may attach and garnish up to the value of $90,000 the following goods or estate of [the defendant] . . . any and all payments or disbursements that are due to be paid to . . . [the defendant] or to any of its members, former members, successors or assigns as their interests may appear from [Stewart] . . . under a certain $300,000 escrow fund being held in trust by [Stewart] pursuant to a certain escrow agreement made between [the defendant], Pine Island Real Estate, LLC and [Stewart].” The court attached and “incorporated herein by reference” a signed copy of that escrow agreement to its order. Approximately ten days after the plaintiff filed its application for the prejudgment remedy, the defendant filed articles of dissolution with the office of the Connecticut Secretary of the State.

In April, 2011, the plaintiff served a signed writ, summons and complaint on the registered agent for service of process of the defendant. The complaint consisted of four counts. The first count alleged breach of contract and sought an award of $75,000 in monetary damages “that would place [him] in the same position as that which he would have been in had the defendant fully performed its . . . express contract obligation . . . .” Count two alleged breach of an implied covenant of good faith and fair dealing and count three alleged negligent infliction of emotional distress. In count four, the plaintiff alleged that the defendant’s breach of contract “was so unfair and offensive as to constitute a violation of [the Connecticut Unfair Trade Practices Act, General Statutes] § 42-110b et seq. [CUTPA].” Accordingly, the plaintiff, “on account of such unfair or deceptive trade practice,” sought an additional award of “all costs of litigation and an award of punitive or exemplary damages—to the extent of [the defendant’s] undistributed assets, as allowed . . . .”

When the defendant did not appear or otherwise respond to that pleading, the plaintiff filed a motion for default, which was granted by order dated May 17,2011. Notice of that order was provided to the defendant on that date. The matter proceeded to a hearing in damages on July 6, 2011, at which the defendant did not appear. The plaintiff testified at that hearing that he had worked at the marina for twelve years and that his employment contract provided that he would receive a payment of $75,000 in the event that the marina was sold during the third year of the contract, as ultimately transpired. The plaintiff testified that he helped facilitate the sale of the marina on behalf of the defendant. He explained that he was required to maintain and operate the marina on a regular basis and that he “was in full management mode including ensuring that the marina was in turnkey operation for the owners at the time period of closing. It was necessary to sell slips, sell winter storage, and take care of all the operations that would normally happen if the marina wasn’t being sold in order to uphold the value of that marina through to closing.” The plaintiff also testified that he worked specifically with the defendant’s attorney, Keith Varian of the firm of Murtha Cullina, on a regular basis in preparing “to make the marina [sale] close.” Following the sale of the marina, the plaintiff made repeated inquiries regarding his payment under the contract, but the defendant never responded. When the hearing concluded on July 6, 2011, the court entered an order rendering judgment “against [the] defendant in the amount of $150,000 together with attorney’s fees of $2161.50 and costs of $377.12 together with prejudgment and post-judgment interest.” On July 12, 2011, the plaintiff provided notice of that judgment to the defendant in accordance with Practice Book 17-22.

Almost four months later on November 9, 2011, the defendant filed a motion to open the judgment. That motion alleged in relevant part that “[t]he defendant was ill advised that it should take no action in this case on the basis that no judgment could be rendered against it because of the dissolution. This was obviously error and is why the defendant failed to file an appearance.” The motion then proceeded to set forth “a number of good faith defenses” that allegedly existed.

Accompanying the defendant’s motion was a document entitled “Affidavit in Support of Motion to Open Judgment Upon Default.” That document identifies Kam H. Wong as “a member of the now dissolved [defendant].” It states, inter alia, that “Daly, Weihing and Bochanis now represent the [defendant] in the above captioned matter.” It continues: “I was informed that due to the dissolution of the [defendant] not to take action in the above referenced matter and upon that advice failed to file an appearance. . . .” The document does not identify the party that allegedly provided that advice or whether said party was an attorney licensed to practice law in this state. The document was signed by Wong on behalf of the defendant. It was not authenticated in any manner as a sworn attestation.

On December 1, 2011, the court denied the motion to open. In so doing, the court concluded that the defendant had failed to demonstrate reasonable cause for its failure to appear and to defend the underlying action. From that judgment, the defendant appealed to this court.

At the outset, we note that although the defendant’s brief asserts four distinct claims, the only ones properly before us are whether the court improperly denied (1) the defendant’s motion to open the judgment and (2) the defendant’s request to permit Wong to testify at the hearing on that motion. As we previously have explained, “[i]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Internal quotation marks omitted.) Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 293, 966 A.2d 318 (2009). The defendant’s failure to file its motion to open within twenty days of the notice of judgment precludes review of its other two claims in this appeal.

I

The defendant argues that the court abused its discretion in denying its motion to open. “A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992).

The power of the court to set aside a default judgment is governed by General Statutes § 52-212. To obtain relief, “the movant must make a two part showing that (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause. . . . [B]ecause the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.” (Internal quotation marks omitted.) Little v. Mackeyboy Auto, LLC, 142 Conn. App. 14, 18-19, 62 A.3d 1164 (2013). The court in the present case concluded that the defendant did not satisfy the latter requirement.

More specifically, the court found, and the defendant does not dispute, that it received notice of the proceedings in this case and made a conscious decision to ignore them. The court predicated that finding in part on Wong’s affidavit, in which Wong averred that he “was informed that due to the dissolution of the [defendant] not to take action in the above referenced matter and upon that advice failed to file an appearance.” (Internal quotation marks omitted.) As a result, the court, in denying the motion to open, found that “ [t]here is no claim that [the defendant] was unaware of its legal rights to assert a claim or demand for arbitration or that [the] complaint sought relief based upon the [contract] as well as a theory of tort recovery. The affidavit in this case indicates that there was no mistake in this conduct, but rather there was a conscious decision to ignore the legal process in its entirety. The fact that the defendant chose to ignore this process, and now rues this decision, is not a basis to open up the judgment. . . . The defendant has not met its burden to show reasonable cause for its failure to appear and to defend the underlying action.” (Citation omitted.) We concur with that assessment.

“It is this court’s well settled jurisprudence that [a] court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority. . . . Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. . . . Negligence of a party or [its] counsel is insufficient for purposes of § 52-212 to set aside a default judgment.” (Internal quotation marks omitted.) Giano v. Salvatore, 136 Conn. App. 834, 843, 46 A.3d 996, cert. denied, 307 Conn. 926, 55 A.3d 567 (2012); see Postemski v. Landon, 9 Conn. App. 320, 325, 518 A.2d 674 (1986) (“[w]hile mistake, accident or other reasonable cause may be a sufficient reason to open a default judgment, negligence is not”). To the extent that Wong’s affidavit avers that an unidentified party rendered legal advice that “was obviously error,” as the defendant claims in its motion to open, it remains that such negligence cannot establish the requisite reasonable cause to open a judgment under § 52-212. Accordingly, the court did not abuse its discretion in denying the motion to open.

n

The defendant also claims that the court improperly denied its request to permit Wong to testify at the hearing on the motion to open. It does not identify any applicable standard of review for that claim, as required by our rules of practice. See Practice Book § 67-4 (d). The defendant further has provided this court with no authority indicating that a trial court confronted with a motion to open a default judgment that is accompanied by an affidavit is obligated, as a matter of law, to permit the movant to also introduce live testimony in support thereof.

Those deficiencies, while significant, nevertheless are not the only barriers to our review of the defendant’s conclusory assertion. A review of the transcript of the November 21, 2011 hearing on the defendant’s motion to open indicates that the defendant asked to “put [Wong] on the stand to give some testimony relative to the reasons the [defendant] did not take appropriate actions.” A colloquy then transpired concerning Wong’s affidavit, after which counsel for both parties argued the merits of the motion. After the parties concluded their arguments, the court announced that it would “take a look at the papers and I will let you know my decision .... I will look at the affidavits that are filed with the motion . . . and I’ll review it in accordance with the terms of [Practice Book § 17-43].” In response, counsel for the defendant again noted that “we are offering to provide testimony from [Wong] today.” The court then stated: “If in fact I need testimony, I will call you back and say I want some testimony. But at this point I’m going to review the matter on the papers and determine whether or not sufficient grounds have been alleged by the defendant to assert that the judgment . . . should be set aside.” Counsel for the defendant did not object in any manner but, rather, replied, “I understand.”

Our rules of practice require a party, as a prerequisite to appellate review, to distinctly raise its claim before the trial court. See Practice Book § 5-2 (“[a]ny party intending to raise any question of law which may be the subject of an appeal must . . . state the question distinctly to the judicial authority”); see also Practice Book § 60-5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to trial”). For that reason, we repeatedly have held that “we will not decide an issue that was not presented to the trial court. To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. Martin, 110 Conn. App. 171, 180, 954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192, 989 A.2d 1072 (2010); see also State v. Favoccia, 119 Conn. App. 1, 14, 986 A.2d 1081 (2010) (“[i]t is axiomatic that issues not properly raised before the trial court ordinarily will not be considered on appeal”), aff'd, 306 Conn. 770, 51 A.3d 1002 (2012). The record before us reveals merely that the defendant offered Wong’s testimony; the defendant did not object in any manner or articulate any distinct issue of law when the court indicated that it would “review the matter on the papers . . . .” For that reason, we decline to further consider the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       A copy of the contract was admitted into evidence at the July 6, 2011 hearing in damages.

       By order dated March 13, 2012, the court clarified that “[p]rejudgment interest is awarded at the rate of 10 [percent] from January 7, 2011 to the date of judgment. [P]ost judgment interest is awarded from July 6, 2011, at the rate of 4 [percent].”
      In addition, we note that counsel for the defendant, at the conclusion of oral argument, represented to this court that the present case was not one in which the plaintiff “would never get paid. . . . Money is in escrow, this man in all probability if he is due any money, even with the dissolved LLC, will get paid. ... He has an ability to get paid.”

       Practice Book (2011) § 17-22 provides in relevant part: “A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party against whom it is directed and a copy of such notice shall be sent to the clerk’s office. . . .”

       The motion to open was signed on behalf of the defendant by Attorney Christopher T. Richtarich of the firm of Daly, Weihing & Bocharas, which firm represents the defendant in this appeal.

       Whether the defendant may seek recourse against that unidentified party is not an issue in this appeal.

       Prior to the hearing on the defendant’s motion but more than four months after the default judgment was rendered, the defendant filed an amended affidavit that was authenticated. The court considered that affidavit in deciding the defendant’s motion. See Carter v. D’Urso, 5 Conn. App. 230, 234, 497 A.2d 1012, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985).

       After commencing this appeal, the defendant filed a motion for articulation with the trial court requesting an articulation of “the basis for the $150,000 damages award when the claim for damages was $75,000.” The court granted that motion. Its July 5, 2012 articulation states in relevant part that “[t]he first count of the [plaintiffs complaint] alleges the essential elements of breach of contract setting forth damages in the amount of $75,000. . . . Paragraph [fourteen] of the fourth count claims that the defendant’s breach of contract was ‘so unfair and offensive as to constitute a [CUTPA] violation . . . .’ Based upon the admitted allegations of the second and third counts, it is concluded that the breach of contract was so unfair and offensive as to constitute a [CUTPA] violation .... Accordingly, punitive damages and equitable relief were awarded under the provisions of [General Statutes] § 42-110g.”

       The defendant claims that the court, in rendering the default judgment in favor of the plaintiff, improperly awarded double damages pursuant to CUTPA and failed to consider whether the contract required the submission of disputes to binding arbitration. Because those claims pertain to the merits of the underlying judgment, they are not properly before us in this appeal.


author: HARPER, J.

text:
    ANTHONY SMALL v. STATE OF CONNECTICUT
    (AC 32959)
    Lavme, Alvord and Harper, Js.

      Argued January 22
    officially released July 2, 2013

      Anthony Small, self-represented, the appellant (petitioner).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Anthony Small, appeals following the denial of his petition for certification to appeal from the judgment of the trial court denying his petition for a new trial. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly denied his petition for a new trial, which was based on alleged newly discovered and/or suppressed evidence and an alleged unconstitutional jury charge. We dismiss the appeal.

The petition for a new trial arises from the petitioner’s underlying criminal case. Our Supreme Court previously has set forth the following facts that the jury reasonably could have found. “In October, 1990, the [petitioner] was involved in drug trafficking with his friend, Eric Amado. The [petitioner] and Amado stored drugs at the West Haven apartment of Amado’s girlfriend, Joanne Bailey. Bailey shared the apartment with Hope Vaughn, who had been dating the [petitioner], . . . Vaughn, who was upset over statements regarding her allegedly made by the [petitioner] and Amado, decided that she would ‘put a stop to it.’ Vaughn telephoned a friend, Anthony Young, and asked him to come to the apartment she shared with Bailey. She then opened a window and knocked over some of the apartment’s furnishings to make it appear as though the apartment had been burglarized. When Young arrived, Vaughn told him that she had some things to bring out and, after Young had backed his car, a red Toyota Cél-ica, up to the door of the apartment building, she loaded two duffel bags and a small safe containing the drugs into the trunk of the car. The two then drove to Young’s apartment in Bridgeport, where they were joined by Peter Hall, Vaughn’s former boyfriend.

“Meanwhile, the [petitioner] and Amado returned to the West Haven apartment and discovered that the drugs were missing. The two men immediately began to search for the drugs and for whomever had taken them. They were joined in their search by Joanne Bailey, as well as by two associates, John ‘John-John’ Wideman and David ‘Chico’ Bailey. During the course of their search, the group traveled to Stamford so that Amado could consult with a ‘voodoo man’ of his acquaintance. The ‘voodoo man’ told him that Vaughn had taken the drugs. Joanne Bailey informed Amado that Vaughn might be with a friend, Sarita Malloy, who lived in Bridgeport with Young. The group drove in two cars to Young’s apartment, where they found Vaughn, Young and Hall standing outside on the porch. At that time, they apparently did not suspect Young or Hall to have been involved in the theft. Joanne Bailey approached Vaughn and told her that Amado wanted to speak with her. Vaughn went over to the car where Amado was waiting, and when he ordered her to get into the car she complied. The group then returned to West Haven, where they spent the night. Throughout the night, Amado and the [petitioner], along with the other two men, questioned Vaughn as to her knowledge of the missing drugs. Amado threatened to shoot her and, at one point, the [petitioner] tied a sock around Vaughn’s head while David Bailey threatened her with a gun.

“The next morning, Joanne Bailey asked neighbors whether they had seen anything suspicious. After being told by a neighbor that Vaughn had been seen loading bags into the trunk of a red Toyota, the [petitioner], Amado, Joanne Bailey, Wideman and David Bailey returned to Young’s Bridgeport apartment. The men were armed with automatic or semiautomatic weapons, including Uzis. The [petitioner] carried an Uzi. Upon arriving at Young’s apartment, Amado told Young that he had come for his ‘stuff.’ Young told him to calm down and to come inside the house, but Amado began yelling and then began shooting. Young and Hall were fatally wounded, and Joanne Bailey was shot in the back of her left thigh. The [petitioner], Amado, Wideman and David Bailey fled the scene. The [petitioner] subsequently left the Bridgeport area, and moved to Queens, New York, where he remained until his arrest for the murders in 1994.” State v. Small, 242 Conn. 93, 97-98, 700 A.2d 617 (1997).

This court previously has set forth the relevant procedural history with respect to the petitioner’s criminal case. “In 1995, following a jury trial, the petitioner was convicted of capital felony in violation of General Statutes § 53a-54b (8), two counts of felony murder in violation of General Statutes § 53a-54c and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and [General Statutes] § 53a-48. On appeal, our Supreme Court reversed the judgment in part and remanded the case to the trial court with direction to vacate the capital felony conviction and to impose a sentence on the felony murder charges. . . . The trial court thereafter imposed a total effective sentence of forty-five years incarceration.” (Citation omitted.) Small v. State, 101 Conn. App. 213, 216, 920 A.2d 1024 (2007), appeal dismissed, 290 Conn. 128, 962 A.2d 80, cert. denied, 558 U.S. 842, 130 S. Ct. 102, 175 L. Ed. 2d 68 (2009).

On May 3, 2001, the petitioner filed a revised petition for a new trial pursuant to General Statutes § 52-270 and Practice Book § 42-55, in which he alleged: (1) actual innocence on the basis of newly discovered evidence; (2) that the state failed to disclose exculpatory evidence; and (3) that the trial court provided an unconstitutional jury charge on consciousness of guilt. “On July 7, 2006, the court denied the petitioner’s request for a new trial. Thereafter, the petitioner filed a petition for certification to appeal [pursuant to General Statutes § 54-95 (a)]. . . . The court . . . denied the petition for certification to appeal on the ground that there were no questions involved that merited review by an appellate court.” Id. This appeal followed.

The petitioner claims that the court abused its discretion in denying his petition for certification to appeal. “As a preliminary matter, we identify the standard of review. It is well established that we apply the abuse of discretion standard when reviewing a court’s decision to deny a request for certification to appeal from a denial of a petition for a new trial. ... In determining whether a court abused its discretion in this context, we apply the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). . . . According to the Lozada framework, a petitioner can establish a clear abuse of discretion by demonstrating one of the following criteria: (1) that the issues are debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed farther.” (Citations omitted.) Daniels v. State, 88 Conn. App. 572, 575-76, 870 A.2d 1109, cert. denied, 274 Conn. 902, 876 A.2d 11 (2005).

The petitioner claims that the court abused its discretion in denying his petition for certification to appeal because he has presented issues that warrant appellate consideration.

I

The first issue concerns whether the court improperly denied his petition for a new trial in fight of the alleged newly discovered and/or suppressed evidence. In particular, the petitioner claims that the court erred by concluding that the evidence presented was not material and not likely to produce a different result in a new trial.

“At the outset, we note that a petition for a new trial is addressed to the discretion of the trial court whose decision thereon will be set aside on appeal only if it reflects a clear abuse of discretion. ... In deciding upon a petition for a new trial, the function of the trial court is to determine whether the evidence presented at the hearing on the petition together with the evidence presented at the original trial warrants the granting of the petition. . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done . . . and whether it is probable that on a new trial a different result would be reached.” (Citations omitted; internal quotation marks omitted.) Demers v. State, 209 Conn. 143, 148-49, 547 A.2d 28 (1988); see also Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

As previously mentioned, in his revised petition for a new trial, the petitioner alleged actual innocence on the basis of newly discovered evidence and the claim that the state failed to disclose exculpatory evidence. There are separate standards that govern each claim. See Demers v. State, supra, 209 Conn. 150 (setting forth standard for suppressed evidence in petition for new trial); Asherman v. State, supra, 202 Conn. 434 (setting forth standard for newly discovered evidence in petition for new trial). In support of his claims, the petitioner relies on certain documents he obtained through a freedom of information request directed to the Federal Bureau of Investigation (FBI documents) that were attached to his revised petition and admitted into evidence during the hearing. The petitioner farther relies on documents he obtained from his parole report (parole documents) that also were admitted into evidence dining the hearing. The petitioner repeatedly asserted that both the FBI documents and the parole documents had been suppressed by the state but appeared to assert that only the FBI documents were newly discovered. Nevertheless, the court treated the FBI documents under the standard for newly discovered evidence and the parole documents under the standard for suppressed evidence, and ultimately concluded that the evidence presented was not material and not likely to produce a different result in a new trial.

At the outset, we recognize that the test for materiality varies depending upon the standard employed. Compare Shabazz v. State, 259 Conn. 811, 823, 792 A.2d 797 (2002) (newly discovered evidence must “probably, not merely possibly, result in a different verdict at a new trial” [emphasis added; internal quotation marks omitted]) with State v. Wilcox, 254 Conn. 441, 453-54, 758 A.2d 824 (2000) (suppressed evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” [emphasis added; internal quotation marks omitted]). The difference is not mere semantics. For newly discovered evidence, “[i]t is not sufficient for [the petitioner] to bring in new evidence from which a jury could find him not guilty— it must be evidence which persuades the judge that a jury would find him not guilty.'” (Emphasis in original; internal quotation marks omitted.) Shabazz v. State, supra, 823. For suppressed evidence, however, “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” (Emphasis added; internal quotation marks omitted.) State v. Wilcox, supra, 454. Therefore, in an abundance of caution, and in light of the record, we address both the FBI documents and the parole documents under the less strict standard of materiality for suppressed evidence.

“It is well established that suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] .... To establish a Brady violation the defendant bears the burden of demonstrating: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” (Citations omitted; internal quotation marks omitted.) Demers v. State, supra, 209 Conn. 149-50.

“Evidence that is not disclosed is suppressed for Brady purposes even when it is known only to the police investigators and not to the prosecutor. ... In addition, evidence is favorable if it is either exculpatory or impeaching.” (Citation omitted; internal quotation marks omitted.) Morant v. Commissioner of Correction, 117 Conn. App. 279, 285, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). “The test for materiality is well established. The United States Supreme Court ... in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), [held] that undisclosed exculpatory evidence is material, and that constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . The court explained that a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal. . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Citations omitted; internal quotation marks omitted.) State v. Wilcox, supra, 254 Conn. 453-54.

“In evaluating the reasonable probability standard, we should be aware of what adverse effect the nondisclosure may have had on the defendant’s preparation or presentation of his case and that we should act with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have [otherwise] taken .... On the other hand, we must also recognize that the mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial, however does not establish materiality in the constitutional sense.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 546, 747 A.2d 487 (2000).

The following additional facts are relevant to our consideration of this issue. At his criminal trial, the petitioner testified to the following. As a result of a car accident that had occurred previously, he had a doctor’s appointment on October 18, 1990, the date that he and Amado discovered the theft, but he did not attend the appointment in order to clear his name of any involvement in the theft, as Amado indicated that he would be questioning everybody who came to the house. He traveled with Amado throughout the day as Amado attempted to learn who had committed the theft. Amado never indicated what was stolen other than his “money” or his “stuff.” At night, the petitioner, Joanne Bailey, David Bailey, Wideman and Vaughn were questioned by Amado. At one point, Amado pulled out a gun and pointed it at Vaughn. David Bailey also threatened Vaughn with a gun. The next day, the six of them traveled to Young’s apartment. The petitioner did not know whether Amado had a gun at that time and did not believe anything was going to happen other than questioning. The petitioner did not have a gun himself. The petitioner stayed outside by the fence and, when he heard gunshots fired, he ran. The petitioner had no intention to commit a robbery. Although he fled the scene of the shootings, he did not leave Bridgeport until later when he started receiving threats from police. In particular, the police came to the home of the petitioner’s mother at 4 a.m. and threatened to kill the petitioner in front of her and indicated that the petitioner had a bulletproof vest, an Uzi, and that he had shot three people, killing two of them. Thereafter, the petitioner left Bridgeport for Queens, New York. The petitioner also testified that he was selling jewelry at about the time of the shootings.

Our Supreme Court previously has indicated that “[i]t was undisputed that the [petitioner] did not shoot the victims and that he did not personally attempt to take any property from them. There was conflicting testimony, however, regarding the extent of the [petitioner’s] participation in the other activities leading up to the shootings. Although the [petitioner] testified that he was never armed, both Joanne Bailey and Vaughn testified that they believed that he had been carrying a gun, which Vaughn described as an Uzi. Additionally, Vaughn testified that the drugs taken from the apartment belonged to both Amado and the [petitioner]. Vaughn further testified that the [petitioner] had taken part in questioning and threatening her the night before the shootings.” Stale v. Small, supra, 242 Conn. 106-107. In particular, Vaughn testified that the petitioner tried to tie a sock around her head. Furthermore, “[t]he [petitioner] himself testified that Amado had a gun and that he was afraid of what might have happened to him or his family if Amado had thought he had taken the missing property. When asked to elaborate on his fears, he stated that, in his experience, such situations most of the time [end] up in somebody gettin’ killed.” (Internal quotation marks omitted.) Id., 107.

During the hearing, the petitioner submitted the FBI documents and the parole documents into evidence. The documents indicate a wide array of information about the petitioner’s parole history and the FBI’s investigation into the whereabouts of the petitioner after the shootings from which we glean the following as the crux of the petitioner’s claim. The parole documents indicate various statements made by the petitioner to his parole officer before the shootings concerning a car accident, doctor’s appointments and his own business selling gold. The parole documents also indicate that, on November 19, 1990, the petitioner reported to his parole officer. The FBI documents indicate that members of the Bridgeport Police Department conducted interviews of relatives and associates of the petitioner and surveillance of his last known address. Various FBI documents indicate that the petitioner was known to wear a bulletproof vest, carry automatic weapons and was armed and dangerous. Other FBI documents indicate that the petitioner was involved in a double or triple homicide and use the phrases, “drag related weapon Uzi,” and “willful kill-gun . A letter, dated June 24, 1991, indicates that the petitioner was in the New Haven-Bridgeport area and was also wanted by the New Haven Police Department in connection with a recent homicide in that city.

At the hearing on the petition, Lawrence Hopkins, the petitioner’s attorney in his criminal trial, testified that he did not have the parole documents in his possession at the time of the criminal trial, that he should have had the documents and that he would have offered the documents to show that the petitioner was in Connecticut on November 19,1990. Parole Officer Anndean Kmetz testified, however, that the petitioner reported regularly up until the shootings, but only once thereafter, with an unscheduled visit on November 19,1990.

Special Agent Martin L. McCullough II of the FBI testified that there may have been some discrepancies and misstatements in the FBI documents, but that any mistakes would not have impacted the investigation because the information in the FBI documents primarily stays within the FBI’s control “within the investigative file simply to document what investigation has taken place . . . .” McCullough further testified that he had no personal knowledge about the information in the documents, other than what had been relayed to him, such as the whereabouts of the petitioner or that the petitioner was armed and dangerous with automatic weapons and a bulletproof vest. McCullough testified that he relayed the information in a caution statement “so that the agents or other officers that are on the opposite end of this investigation are aware that the individual is considered armed and dangerous, weapons that he may use, he or she may use, have been known to use, and if bulletproof vests or other items would have been used by that individual.” In any event, Hopkins testified that he would not have admitted the FBI documents at trial for any reason, including the reason that they corroborated the petitioner’s testimony that he fled because he was being characterized by police in a certain manner, as the documents were not particularly probative and were “inflammatory on their face.”

The court concluded “that there is no reasonable probability that the disclosure of the parole [documents] would have affected the outcome of the trial.” The court noted that “[a]t the original trial, the jury heard testimony from Joanne Bailey and . . . Vaughn. . . . Although conflicting at times, both testified that the petitioner was carrying a weapon, which Vaughn described as an Uzi. . . . Vaughn further testified that the petitioner had questioned and threatened her the night before the shooting. . . . Additionally, the petitioner testified he was at the scene unarmed . . . and fled the Bridgeport area after the incident. ... In the court’s view, the jury could have disregarded the testimony of Vaughn and Bailey and believed the petitioner.” (Citations omitted.)

In light of this apparent credibility contest, the court concluded that “[e]vidence that the petitioner worked and visited a doctor on or about the time of the shooting is not material and it is not likely to have produced a different result.” The court further noted that “after October 19, 1990, outside of several phone calls, the petitioner made only one scheduled appearance at Kmetz’ office.” “[T]he petitioner admitted fleeing the scene of the shooting and leaving the state to [go to] New York, where he was arrested several years later. In the court’s view, this testimony, considered with his parole history, would have permitted the jury to draw a stronger inference of consciousness of guilt and would, therefore, not have changed the outcome of the case.” Although the court considered the FBI documents under the standard for newly discovered evidence, the court credited Hopkins’ testimony and, with respect thereto, concluded that “[i]f these documents had been admitted at trial, it is likely they would have had a detrimental impact on the petitioner’s case.” Ultimately, the court concluded that the evidence presented was not material and not likely to produce a different result in a new trial.

The petitioner argues that the evidence presented was material to his credibility, would have supported the defense of duress, which was not raised at trial, and would have negated the charge on consciousness of guilt concerning his flight from the state. We are not persuaded.

The court properly reviewed the evidence offered in support of the petition for a new trial in conjunction with the evidence presented at the criminal trial. We conclude that the first issue presented by the petitioner with respect to the materiality of the FBI documents and the parole documents, regardless of the standard applied, is not debatable among jurists of reason, that a court could not properly resolve the issue in a different manner and that it is not adequate to deserve encouragement to proceed further. Accordingly, with respect to this issue, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

II

The second issue concerns whether the trial court improperly denied the petition for a new trial in light of the alleged unconstitutional jury charge. In particular, the petitioner claims that the court erred by failing to find the charge given to the jury on flight unconstitutionally defective and in violation of his due process rights.

At the outset, we note that a petition for a new trial “does not furnish a substitute for, or an alternative to, an ordinary appeal but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted. . . . The procedure is not intended to reach errors available on appeal of which the party should have been aware at the time when an appeal might have been taken. . . . The salutary purpose of the statute is that if a party has a meritorious defense and has been deprived of reasonable opportunity to present it, he ought to be permitted to make it upon another trial.” (Internal quotation marks omitted.) State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966). The petitioner has not presented, nor are we aware of, any authority that has permitted a challenge to a jury charge to be raised in a petition for a new trial. Ultimately, a challenge to a jury charge is not properly raised in a petition for a new trial because the petitioner had the opportunity at his criminal trial and/or on direct appeal to raise such a challenge. To the extent that newly discovered and/or suppressed evidence would affect the court’s decision to give a jury charge or affect the jury’s consideration thereof, the propriety of a new trial is considered under the standards for newly discovered and/or suppressed evidence. As we previously have indicated, there is no issue with respect to the materiality of the FBI documents or the parole documents, including as they relate to the charge on consciousness of guilt.

We conclude that the second issue presented by the petitioner with respect to the propriety of the jury charge is not debatable among jurists of reason, that a court could not properly resolve the issue in a different manner and that it is not adequate to deserve encouragement to proceed further. Accordingly, with respect to this issue, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also claims that the court improperly denied him his right to counsel in his petition for a new trial and on appeal. During the course of the proceedings on his petition, the petitioner filed various applications for the appointment of counsel, including appellate counsel, which were all denied by the court. This court already has concluded that the petitioner is neither statutorily nor constitutionally entitled to court-appointed counsel in an action on a petition for a new trial. See Small v. State, 101 Conn. App. 213, 217-19, 920 A.2d 1024 (2007), appeal dismissed, 290 Conn. 128, 962 A.2d 80, cert. denied, 668 U.S. 842, 130 S. Ct. 102, 176 L. Ed. 2d 68 (2009). Furthermore, this court already has held that the trial court did not otherwise abuse its discretion in denying the application for the appointment of appellate counsel. Id., 219-20. Likewise, we now hold that the court did not otherwise abuse its discretion in denying the applications for the appointment of counsel in the petition for a new trial.

       We do so because the petitioner repeatedly asserted that both the FBI documents and the parole documents were suppressed.

       The petitioner claims that the jury charge constitutes structural error. We disagree. “Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected .... These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.” (Internal quotation marks omitted.) State v. Latour, 276 Conn. 399, 410, 886 A.2d 404 (2006).