author: DiPENTIMA, C. J.

text:
    CONNECTICUT INSURANCE GUARANTY ASSOCIATION v. JOSHUA DROWN ET AL.
    (AC 33112)
    DiPentima, C. X, and Alvord and West, Js.

      Argued October 20, 2011 —
    officially released March 13, 2012

      Mark D. Robins, pro hac vice, with whom was Thomas P. O’Connor, for the appellant (plaintiff).

      Sean K. McElligott, with whom, on the brief, was David M. Bernard, for the appellees (defendants).
   Opinion

DiPENTIMA, C. J.

In this appeal, we consider whether the trial court improperly concluded that a professional liability insurance policy covered certain medical malpractice claims brought against a professional corporation under the doctrine of vicarious liability. The plaintiff, Connecticut Insurance Guaranty Association (association), appeals from the judgment of the trial court granting the cross motion for summary judgment filed by the defendants, Susan Drown and Rodney Drown, individually and on behalf of their minor son, Joshua Drown, and Associated Women’s Health Specialists, P.C. (Health Specialists). On appeal, the association argues that the court improperly concluded that (1) an exclusion to the policy issued by Medical Inter-Insurance Exchange (Exchange) did not apply and (2) the association was estopped from enforcing the policy provisions. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The association is a nonprofit unincorporated legal entity created pursuant to the Connecticut Insurance Guaranty Association Act (guaranty act), General Statutes § 38a-836 et seq., and its purpose is to provide compensation for policyholders and claimants whose remedy otherwise would be unavailable by virtue of insurer insolvency. General Statutes §§ 38a-839 and 38a-841; see Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77, 86, 896 A.2d 747 (2006). In May, 2000, the Drowns filed the underlying medical malpractice action against Health Specialists and two physicians, France Bourget and Richard Holden. The Drowns alleged that Bourget and Holden failed to diagnose a placental abruption resulting in brain damage to Joshua Drown, and physical injuries to Susan Drown. The Drowns also alleged that Health Specialists was liable vicariously for the physicians’ alleged malpractice.

From 2000 to 2001, Health Specialists was insured through a professional liability insurance policy issued by Exchange (policy). There was no dispute that Health Specialists turned the underlying malpractice claims over to Exchange in a timely manner in 2000. Without asserting a reservation of rights, Exchange provided counsel to Health Specialists to defend the underlying malpractice action. In September, 2006, however, the counsel provided by Exchange failed to participate in pretrial mediation scheduled by the court. In October, 2006, by letter to Health Specialists, Exchange denied coverage of the claims, asserting that exclusion (i) of the policy applied. This provision excludes coverage for the insured “coiporation/partnership under Coverage Agreement B with respect to injury arising solely out of acts or omissions in the rendering or failure to render professional services by individual physicians or nurse anesthetists, or by any paramedical for whom a premium charge is shown on the declarations page.” In December, 2006, Exchange failed to attend or send counsel to a second court-ordered pretrial mediation in the underlying action. The court then rendered a default judgment against Health Specialists. In March, 2007, Susan Drown, individually and on behalf of Joshua Drown, and Health Specialists executed a settlement agreement whereby Health Specialists agreed to pay the amount of the policy, $2 million, and Susan Drown, individually and on behalf of Joshua Drown, agreed not to proceed directly against the assets of Health Specialists. The court then dismissed the underlying action against Health Specialists.

In April, 2008, a United States Bankruptcy Court in New Jersey declared Exchange insolvent, and ordered that it be liquidated. By virtue of Exchange’s insolvency, the association became obligated to pay certain “covered claims” arising out of and within the coverage of the policy pursuant to the guaranty act. In February, 2009, the association brought a declaratory judgment action, pursuant to General Statutes § 52-29, to determine the rights and obligations of the parties under General Statutes § 38a-838 (5) with respect to the underlying claims. In June, 2009, the association filed amotion for summary judgment on the ground that exclusion (i) of the policy precluded coverage of the underlying claims. The defendants filed a cross motion for summary judgment on the grounds that the underlying claims were covered under the policy and that the association was obligated statutorily to pay three covered claims to the Drowns in the amount of $1,199,700. The court denied the association’s motion for summary judgment and granted the defendants’ cross motion for summary judgment. The association filed a motion to reargue or for reconsideration, which was denied. This appeal followed.

Our standard of review is well settled. “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Employers Reinsurance Corp. v. Muro, 86 Conn. App. 551, 554, 861 A.2d 1216 (2004), cert. denied, 273 Conn. 907, 868 A.2d 747 (2005). Therefore, we must determine “whether the court’s conclusions are legally and logically correct and are supported by the record.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).

I

The association argues that the court improperly concluded that exclusion (i) of the policy did not apply. Specifically, the association argues that exclusion (i) unambiguously excludes coverage in the present case. We agree with the association.

We first set forth the legal principles governing the construction of insurance policies. “[C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... It is the function of the court to construe the provisions of the contract of insurance. . . . The [interpretation of an insurance policy . . . involves a determination of the intent of the parties as expressed by the language of the policy . . . [including] what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy . . . [giving the] words ... [of the policy] their natural and ordinary meaning . . . [and construing] any ambiguity in the terms ... in favor of the insured .... In determining whether the terms of an insurance policy axe clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading.” (Citation omitted; internal quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 231-32, 975 A.2d 1266 (2009). “The fact that the parties advocate different meanings of the exclusion clause does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 545, 791 A.2d 489 (2002).

Section I of the policy, entitled “Coverage Agreements,” lists three types of coverage: “Coverage A-Individual Professional Liability”; “Coverage B-Corporate/Partnership Liability”; and “Coverage C-Paramedical Employee Liability.” With respect to Coverage B, § I provides in relevant part: “[Exchange] will pay on behalf of the insured all sums that the insured shall become legally obligated to pay as damages because of . . . [i]njury arising out of the rendering of or failure to render . . . professional services by any person for whose acts or omissions the corporation/partnership insured is legally responsible.” Section II of the policy outlines the exclusions from coverage. As noted previously, exclusion (i) of § II excludes coverage for the insured “corporation/partnership under Coverage Agreement B with respect to injury arising solely out of acts or omissions in the rendering or failure to render professional services by individual physicians or nurse anesthetists, or by any paramedical for whom a premium charge is shown on the declarations page.”

In the present case, the court concluded that the policy language in exclusion (i) was ambiguous because the association reasonably read the exclusion as limiting Exchange’s obligation to pay damages, while the defendants adopted a reasonable, but more expansive reading of the policy language, which would encompass claims made against physicians employed by Health Specialists. The court further determined that the ambiguous language in exclusion (i) should be construed in favor of the insured, explaining that the “purpose of the policy was to provide coverage to the corporate entity, [Health Specialists], for the acts or omissions of its physicians and other medical personnel.” Finally, the court concluded that the claims asserted by the Drowns in the underlying malpractice action constituted “covered claims” under the policy. With this background in mind, we turn our attention to the association’s claim.

A

First, the association argues that the court improperly determined that the phrase “for whom a premium charge is shown on the declarations page” in exclusion (i) modified the phrase “individual physicians.” The court concluded that because Bourget’s name did not appear on the declarations page, exclusion (i) did not apply to the underlying claims. “In approaching the problem of discerning and resolving ambiguity, it is useful to recognize that the origin of the problem lies, in large part, in the nature of words and the language they compose. As Justice Holmes wrote, [a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. ... In addition, [t]he English language, with its immense vocabulary, its paucity of inflections, its thousands of homonyms, its flexible grammar and loose syntax, offers endless danger of (or opportunity for) ambiguity.” (Citation omitted; internal quotation marks omitted.) DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985). We will not read the policy language, however, in such a way as to “ignore common rules of grammar.” Gaynor Electric Co. v. Hollander, 29 Conn. App. 865, 870, 618 A.2d 532 (1993).

Exclusion (i), as noted previously, provides that coverage under Coverage Agreement B does not apply “with respect to injury arising solely out of acts or omissions in the rendering or failure to render professional services by individual physicians or nurse anesthetists, or by any paramedical for whom a premium charge is shown on the declarations page.” (Emphasis added.) The use of a comma, the repeated use of the disjunctive conjunction “or” and the repeated use of the word “by” grammatically separates the portion of exclusion (i) referring to individual physicians and nurse anesthetists from the portion of exclusion (i) referring to paramedicals. In light of this separation, we read the phrase “for whom a premium charge is shown on the declarations page” to modify only the “paramedical” category. “It is well recognized that, whenever possible, a modifier should be placed next to the word it modifies.” Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981). Moreover, “the use of the disjunctive conjunction ‘or’ unambiguously requires that either of the exclusions separated by the conjunction, if applicable, excludes coverage. See, e.g., State v. Pascucci, 164 Conn. 69, 72, 316 A.2d 7520 [1972] (‘use of disjunctive “or” between the two parts of the statute indicates a clear legislative intent of separability’).” (Emphasis added.) Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 616-17, 436 A.2d 783 (1980); accord Flint v. Universal Machine Co., 238 Conn. 637, 645, 679 A.2d 929 (1996).

In addition, we agree with the association that the last antecedent rule applies. The last antecedent rule provides that qualifying phrases, absent a contrary intention, refer solely to the last antecedent in a sentence. Eagle Hill Corp. v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 75, 477 A.2d 660 (1984); 2A N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed. 2007) § 47:33, p. 487; compare State v. Rodriguez-Roman, 297 Conn. 66, 76 and n.7, 3 A.3d 783 (2010) (qualifying phrase in statute applied to all antecedents where phrase set off by commas, indicating that exception to last antecedent rule was warranted). Here, the phrase “for whom a premium charge is shown on the declarations page” is not grammatically or logically separated from the last antecedent phrase “any paramedical.” Accordingly, we conclude that the last antecedent rule applies, and we will interpret the phrase to apply only to the last antecedent, “any paramedical.”

Therefore, the court improperly concluded that there was no genuine issue of material fact that exclusion (i) was inapplicable due to the absence of Bourget’s name on the declarations page. Because we conclude that the phrase “for whom a premium charge is shown on the declarations page” in exclusion (i) does not apply to individual physicians, we also conclude that there is no genuine issue of material fact that exclusion (i) applies in the present case.

B

Second, the association argues that the court erroneously concluded that the word “solely” rendered exclusion (i) ambiguous. The defendants respond that the association’s interpretation of the exclusion renders the policy illusory. We agree with the association.

Here, the trial court stated that “[i]n the amended revised complaint, very similar malpractice claims were asserted against [Holden]. Accordingly, based on the allegations in the amended revised complaint, [Bourget] was not solely the cause of the injuries claimed in the underlying action.” Exclusion (i) applies to injuries “arising solely out of acts or omissions in the rendering or failure to render professional services by individual physicians . . . .” (Emphasis added.) The use of the plural form of the word “physician” indicates that exclusion (i) could apply even if the underlying claims arose out of the acts or omissions of more than one physician. Moreover, our determination that exclusion (i) applies, even assuming that the acts or omissions of both Bour-get and Holden were at issue, does not compel the conclusion that coverage is illusory. The association, in its reply brief, Usted a number of hypothetical scenarios where exclusion (i) would not apply. The association, for example, stated: “Thus, if an injury arises partially out of the acts or omissions of a physician and partially out of the acts or omissions of a non-scheduled paramedical, then exclusion (i) would not apply.”

“[A]lthough we adhere to broad interpretation standards in construing insurance pohcies, we conclude that the allegations in the . . . complaint do not fall even possibly within the coverage . . . .” (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 376, 773 A.2d 906 (2001). Although exclusion (i) places limits on coverage, that does not mean it eviscerates all coverage under the pohcy. “The reason for or purpose of an exclusion clause in a pohcy is to eliminate from coverage specified losses . . . which except for the exclusion clause would remain under the coverage. . . . [T]he word exclusion signifies . . . circumstances in which the insurance company will not assume liability for a specific risk or hazard that otherwise would be included within the general scope of the pohcy.” (Citations omitted; emphasis added; internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 588-89, 573 A.2d 699 (1990). Accordingly, our review of the plain language of the pohcy leads us to conclude that the grant of coverage in Coverage B is broader than the exclusion and is not illusory.

Our conclusion that coverage is not illusory also is supported by recent cases from other jurisdictions also interpreting exclusion (i) of the policy. See Valentin-Rivera v. New Jersey Property-Liability Ins. Guaranty Assn., Docket No. A-1925-09T1 (N.J. Super. App. Div. March 25, 2011) (interpreting same exclusion, held coverage not illusory where action was brought against two physicians, even though action against one physician ended by settlement, because only physicians, nurse anesthetists and paramedics were excluded, and coverage could be provided if acts of other staff were at issue); Massachusetts Insurers Insolvency Fund v. Mountzuris, Docket No. 08-1962-B (Mass. Super. April 21, 2009) (held same exclusion excluded coverage, coverage not illusory because exclusion only eliminates coverage where injury arises solely out of acts or omissions by persons identified in provision).

Therefore, the court improperly determined that there was no genuine issue of material fact that the word “solely” in exclusion (i) rendered the policy ambiguous where the actions of multiple physicians were at issue. Moreover, we conclude that, in light of our conclusion that exclusion (i) is not ambiguous in the present case, there is no genuine issue of material fact that exclusion (i) applies.

C

Finally, our decision is consistent with our Supreme Court’s recent decision in Johnson v. Connecticut Ins. Guaranty Assn., 302 Conn. 639, 31 A.3d 1004 (2011), issued after oral argument in this case. In Johnson, the plaintiffs brought a declaratory judgment action seeking a determination that “certain medical malpractice claims that they had asserted in an action against the [insured], were covered under an insurance policy issued to [the insured] by [Exchange].” Id., 640. The association assumed liability for Exchange’s obligations to the extent that claims were covered under the guaranty act. Id., 640-41. The association brought a counterclaim for a declaratory judgment, alleging that the claims were excluded under exclusion (i). Id., 641. The claims in Johnson were “predicated on the acts of one of its nurse practitioners, Kathy Hoffman,” a “paramedical” within the meaning of exclusion (i). Id., 641, 645. The declarations page did not list Hoffman as a named insured nor did it indicate a specific premium charge for paramedicals in general. Id., 642. Instead, the declarations page stated “included” under the “premium” column corresponding to “Coverage C — Paramedical Employee Liability.” Id.

Our Supreme Court concluded that “the pertinent policy terms are ambiguous and, therefore, must be construed in favor of coverage.” Id. The court emphasized that its disposition turned on the meaning of the phrase “by any paramedical for whom a premium charge is shown on the declarations page” in exclusion (i), in connection with the declarations page. Id., 645. The court concluded that even if it accepted the association’s argument that exclusion (i) applied to paramedicals as a class, “a layperson reasonably could understand the phrase ‘premium charge . . . shown on the declarations page’ to mean that a specific amount has been assessed for coverage of paramedical employees and that this specific amount will be evident on a declarations page.” Id., 649. In the absence of a specific amount listed on the declarations page, the court construed the policy in favor of coverage. Id., 652.

Here, we consider whether the phrase “for whom a premium charge is shown on the declarations page” in exclusion (i) modifies only the paramedical category, or whether it also applies to individual physicians and nurse anesthetists. We also consider whether the exclusion is ambiguous even assuming that the acts or omissions of multiple physicians are in question. These issues were not before the court in Johnson. Our analysis, moreover, does not involve the interpretation of conflicting policy provisions that, read together, render the exclusion ambiguous under the facts presented. In Johnson, by contrast, the court concluded that exclusion (i), read “in connection with the declarations page,” was ambiguous because no specific premium charge was shown on the declarations page. (Emphasis added.) Id., 645. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., supra, 263 Conn. 268-71 (concluding that policy excluded coverage where no ambiguity was created by conflicting language within policy). Thus, because of the distinct legal issues before us, we conclude that the Johnson decision does not control our analysis.

We therefore conclude, for the foregoing reasons, that exclusion (i) unambiguously excludes coverage of the claims asserted by the Drowns.

II

The association also claims that the court improperly concluded that it was estopped from enforcing the policy provisions due to Exchange’s breach of its duty to defend Health Specialists. The court determined that the association is “hable to the same extent that [Exchange] would have been hable for breaching its duty to defend covered claims under its policy.” We agree with the association.

The association’s claim is one of statutory interpretation over which our review is plenary. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. State, supra, 278 Conn. 82.

As we have noted, § 38a-838 (5) defines a “covered claim” as an “unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage and subject to the applicable limits of an insurance policy . . . .” (Emphasis added.) Additionally, § 38a-841 (a) (4) provides in relevant part that the association shall “pay covered claims to the extent of said association’s obligations, and deny all other claims.” “[I]n general, the legislative objective was to make the [association] liable to the same extent that the insolvent insurer would have been liable under its policy.” (Emphasis added; internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 791, 900 A.2d 18 (2006); id., 792 (where exclusion was ambiguous, doctrine of contra proferentum applied even though ultimate payer would be guaranty association). Thus, the association can only be held hable for claims arising within the coverage of the policy itself. See Franklin v. Superior Casting, 302 Conn. 219, 227, 24 A.3d 1233 (2011) (“[o]ur case law firmly establishes that the association’s liability is dictated exclusively by the guaranty act”); Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 644, 6 A.3d 60 (2010) (“definition of ‘covered claim’ limits the association’s obligations to those found in the insolvent insurer’s insurance policy and does not extend to liabilities arising from conduct in handling the claim if such a provision is not included in the policy”).

Our conclusion is consistent with both the plain language and the purpose of the guaranty act. “The association was established for the purpose of providing a limited form of protection for policyholders and claimants in the event of insurer insolvency. . . . Because . . . insurers may pass on the costs of the assessments made against them by the association, it is in reality policyholders who pay for the protections afforded by the association. Limitations on the association’s obligations, therefore, provide another form of protection against increased premiums for policyholders in addition to the primary protection afforded all claimants against losses resulting from insurer insolvency. The legislative history confirms that the association was established for the benefit of consumers. At the public hearing held prior to passage of the bill proposing the creation of the association, Peter Kelly, a member of the state insurance department stated: [T]his bill provides the means to avoid financial loss to Connecticut residents because of the insolvency of [insurance companies]. . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 451-52, 705 A.2d 1012 (1997). Holding the association hable for claims not arising out of the policy itself would strain § 38a-838 (5) beyond its intended purpose. Because we conclude that exclusion (i) applies, the underlying claims are not “covered claims” within the meaning of § 38a-838 (5). Accordingly, the court improperly determined that there was no genuine issue of material fact that the association was estopped from enforcing the policy provisions. Our analysis also leads us to conclude that, as a matter of law, the association is not estopped from enforcing the policy provisions.

The judgment is reversed and the case is remanded with direction to deny the defendants’ cross motion for summary judgment, to grant the association’s motion for summary judgment and to render judgment thereon for the association.

In this opinion the other judges concurred.

       The association also argues that the court’s judgment should be reversed and remanded with direction to grant its motion for summary judgment. The denial of a motion for summary judgment is not a final judgment and is not ordinarily appealable. Levine v. Advest, Inc., 244 Conn. 732, 756, 714 A.2d 649 (1998). Interlocutory rulings may be reviewed, however, in an appeal taken from a final judgment in the case. Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn. App. 731, 733-34, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).
      Our courts have reviewed the denial of a motion for summary judgment after a cross motion for summary judgment was granted, so long as such review would not require the resolution of substantive issues that were not addressed by the trial court. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991); compare Washington v. Ivancic, 113 Conn. App. 131, 132 n.2, 965 A.2d 618 (2009); Westbrook v. ITT Hartford Group, Inc., 60 Conn. App. 767, 774-75, 761 A.2d 242 (2000). Here, the court rendered summary judgment on the ground that the policy covered the underlying claims and that the association was statutorily obligated to pay these claims. This ruling directly addresses the arguments set forth in the association’s motion. Because our review will not require the resolution of any issues not addressed by the tried court, we conclude that this claim is reviewable.

       We refer in this opinion to Joshua Drown, Susan Drown and Rodney Drown collectively as the Drowns.

       The association also claims that the court improperly concluded that it was statutorily obligated to pay three “covered claims” to the Drowns. Specifically, the association argues that the court improperly (1) concluded that the underlying claims were “covered claims” even though there was no judgment in the underlying action, as required by the policy, (2) held that it failed to comply with General Statutes § 38a-851 (a) and (3) denied its motion to reargue. Because our conclusion that the underlying claims are not “covered claims” within the meaning of General Statutes § 38a-838 (5) is dispositive, we need not address these arguments.

       The underlying action was withdrawn as to Holden before Susan Drown and Health Specialists executed the settlement agreement. There is no record before us as to how, or whether, the action against Bourget was terminated. We note, however, that the settlement agreement provides that Susan Drown, individually and on behalf of Joshua Drown, and Health Specialists agree to “waive and relinquish all costs and all rights to any further proceedings in connection with the [s]uit,” which named Bourget as a defendant. Additionally, the settlement agreement provides that Susan Drown, individually and on behalf of Joshua Drown, may be paid “only pursuant to the ‘Assignment of Rights.’ ” The assignment clause assigned to Susan Drown, individually and on behalf of Joshua Drown, all of Health Specialist’s rights to recover against Exchange.

       The court stated that Exchange and Health Specialists entered into a stipulated judgment. In fact, the underlying action was dismissed pursuant to Practice Book § 14-19, which provides in relevant part that “[a]ny case that does not proceed to trial because it has been reported to the judicial authority as having been settled shall be withdrawn

       Section 38a-838 (5) provides in relevant part: “ ‘Covered claim’ means an unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage and subject to the applicable limits of an insurance policy to which sections 38a-836 to 38a-853, inclusive, apply issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1971 . . . .”

       The defendants’ brief explains that the underlying complaint “states three claims against [Health Specialists] for negligence — one each on behalf of Susan, Rodney, and Joshua Drown.” Section 38a-841 (a) (1) limits the association’s obligation to pay “covered claims” under § 38a-838 (5) as follows: “(B) with respect to covered claims other than for unearned premiums, such obligation shall include only that amount of each such claim which is in excess of one hundred dollars and is less than . . . four hundred thousand dollars for claims arising under policies of insurers determined to be insolvent on or after October 1, 2007 . . . .” Here, Exchange was determined to be insolvent in April, 2008. The $1,199,700 total calculates to $399,900 per covered claim, and is therefore within the statutory limits prescribed.

       The court stated that “[the association] has conceded in this action that the actions of [Bourget] are ‘professional services’ and that [Bourget] is a person for whose acts or omissions [Health Specialists] is legally responsible.” It is also undisputed that Holden is a physician for whose acts or omissions Health Specialists is legally responsible.

       We note that our conclusion that the phrase “for whom a premium charge is shown on the declarations page” in exclusion (i) applies only to paramedical employees is supported by the policy’s definition of an “insured” person. Section IK defines insured persons as follows: “(a) under Coverage A, any individual named in the declarations page as insured; (b) under Coverage B, any partnership identified in the declarations page, and any member thereof with respect to acts or omissions of others; (c) under Coverage B, any corporation named in the declarations page, and any executive officer, director or shareholder thereof while acting within the scope of his duties as such with respect to acts or omissions of others; (d) under Coverage C, any employee of an insured under Coverage A or Coverage B for whom a premium charge is shown in the declarations page.” As we noted previously, Coverage C applies coverage for paramedical employee liability. Thus, the fact that only subsection (d) of § HI requires that a premium charge be shown on the declarations page is consistent with our conclusion that the identical phrase in exclusion (i) only applies to paramedicals.

       The association also argues that only the acts or omissions of Bourget are at issue because the action against Holden was withdrawn. We need not address this argument because we conclude that, even assuming that the acts or omissions of both physicians were at issue, exclusion (i) unambiguously excludes coverage in the present case.

       The defendants argue that because physicians must be individually insured before corporate coverage can apply, the association’s argument renders coverage illusory. Section VHI (g) of the policy provides in relevant part: “The coverage provided under this policy shall not apply to any individual, partnership or corporation insured with respect to claims arising out of the acts or omissions of: (a) physician or nurse anesthetist employees . . . unless such persons have individual coverage . . . with limits of liability equal to or greater than the limits of liability of the insured under this policy.” Section VHI (g) does not, however, automatically apply corporate coverage when physicians are individually insured; rather, it creates a condition precedent for such coverage. Thus, the language of exclusion (i), when read in connection with § VIH (g), does not render coverage illusory.

       In reaching this conclusion, we have received and considered letters from both parties, pursuant to Practice Book § 67-10, discussing the relevance of the Johnson decision to our analysis. Counsel for the defendants argues that Johnson is relevant because the court in Johnson concluded that exclusion (i) was ambiguous “with respect to a different but analogous coverage issue.” Counsel for the association counters that Johnson has no relevance to the present case and, to the extent the decision does have any relevance, it is found in the court’s differentiation of the words “any paramedical for whom a premium charge is shown on the declarations page” from the preceding words in exclusion (i). As we explained in the main text, we conclude that the present case is distinguishable from Johnson due to the distinct legal issues and factual circumstances of this case.

       Other jurisdictions have also held that guaranty associations are not liable for claims that do not arise from the coverage of the policy at issue. See Valentin-Rivera v. New Jersey Property-Liability Ins. Guaranty Assn., supra, Docket No. A-1925-09T1 (N.J. Super. App. Div. March 25,2011) (guaranty association not estopped from disclaiming coverage even though insurer did not reserve its rights in underlying action); Illinois Ins. Guaranty Fund v. Santucci, 384 Ill. App. 3d 927, 934, 894 N.E.2d 801 (2008) (same); Benson v. New Hampshire Ins. Guaranty Assn., 151 N.H. 590, 598, 864 A.2d 359 (2004) (guaranty association had no duty to act as insolvent insurer beyond covered claims); Crider v. Georgia Life & Health Ins. Guaranty Assn., 188 Ga. App. 407, 409, 373 S.E.2d 30 (1988) (guaranty association not liable for bad faith penalties against insurer). Our courts have held that “[sjister state decisions are helpful in construing and applying the guaranty act because it is based on a model statute drafted by the National Association of Insurance Commissioners that has been adopted in substantial part by the legislatures of many of our sister states . . . .” (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, supra, 278 Conn. 792 n.8.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    ANTHONY BRUNETTI v. COMMISSIONER OF CORRECTION
    (AC 32058)
    DiPentima, C. J., and Alvord and West, Js.

      Argued October 20, 2011 —
    officially released March 13, 2012

      Bradford Buchta, assistant public defender, for the appellant (petitioner).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

WEST, J.

The petitioner, Anthony Brunetti, appeals following the habeas court’s denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court’s finding that his mother took no position regarding consent to the search of his home by the police was clearly erroneous. Additionally, the petitioner claims that the court incorrectly concluded that his constitutional claim of unlawful search and seizure was procedurally defaulted. The petitioner finally argues that the court improperly rejected his claim that the procedural default was excused by (1) the ineffective assistance of trial counsel and (2) the novelty of the petitioner’s constitutional claim. We affirm the judgment of the habeas court.

The relevant facts related to the underlying conviction were set forth by our Supreme Court in a decision affirming the petitioner’s conviction; see State v. Brunetti, 279 Conn. 39, 43-46, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007); which were set forth in the habeas court’s memorandum of decision. “On the evening of June 23, 2000, thirty-five year old Doris Crain (victim) left her house and walked to Sonny’s Bar on Campbell Avenue in West Haven. After the victim left the bar, she encountered the nineteen year old [petitioner] near the intersection of Campbell Avenue and Main Street. The victim approached the [petitioner] and asked whether he had any marijuana. The [petitioner] replied that he did and asked the victim to smoke with him behind the Washington Avenue Magnet School. After sharing a marijuana cigarette, the [petitioner] and the victim began kissing and engaging in sexual foreplay. After a short time, the [petitioner] and the victim partially removed their clothing, laid on the ground and began engaging in sexual intercourse. After having intercourse for about fifteen minutes, the victim asked the [petitioner] to stop because the sexual activity was hurting her. The [petitioner] ignored the victim’s request and he continued until he reached an orgasm. After the intercourse ended, the victim got up, cursed at the [petitioner] and told him she was going to call the police. In response to the victim’s threat, the [petitioner] grabbed the victim in a chokehold, punched her in the head, dragged her by her hair, and then by her feet, across the ground, and repeatedly struck her over the head with an empty glass bottle. The [petitioner] then left the victim’s body in the high grass behind the school, throwing her clothing and the bottle nearby. As he left the school area, the [petitioner] walked past Jerrell Credle, Mike Banores, Jose Rivera and Michael Scott, who were seated at a picnic table on the school grounds. Credle recognized and greeted the [petitioner]. The [petitioner] acknowledged Credle, but did not stop to talk to him or the others, and continued to his home at 208 Center Street, where he lived with his parents.

“Following the discovery of the victim’s body the next day, the West Haven police department obtained information suggesting that the [petitioner] might be involved in the victim’s murder. [Detective] Anthony Buglione [of the major crime unit of the Connecticut state police] and [Detective] Joseph Biondi [of the West Haven police department] (detectives) went to the [petitioner’s] home to question the [petitioner]. The detectives approached the [petitioner’s] parents, who were sitting on the front porch of their home, and asked to speak with the [petitioner]. Anthony Brunetti, Sr., the [petitioner’s] father, went inside the house to find the [petitioner] while the detectives remained outside with the [petitioner’s] mother, Dawn Brunetti. The [petitioner] emerged from the Brunetti home with his father ten to fifteen minutes later. The detectives then told the [petitioner] that they wanted to bring him to the West Haven police department for questioning and asked him to produce the clothes he had worn the previous evening. The [petitioner] retrieved some clothing from his bedroom, and the detectives then drove the [petitioner] to the police station for questioning. The [petitioner’s] parents followed the detectives to the police station in their own car.

“At the police station, the detectives questioned the [petitioner] in an interrogation room, while the [petitioner’s] parents remained in the station’s waiting area. Sometime during the questioning, Detective James Sweetman of the West Haven police department and [Detective] Mark Testoni [of the Connecticut state police] approached the [petitioner’s] parents and asked them to sign a consent form to allow the West Haven police to search the Brunetti residence. The [petitioner’s] father signed the form but the [petitioner’s] mother refused to sign the form. The [petitioner’s] parents then left the police station to let the police into their home to conduct the search while the [petitioner] remained at the station with the detectives. During the search of the home, the police looked inside the washing machine and found several items of recently washed clothing, including a pair of sweatpants, two tank tops and a towel. The sweatpants and towel exhibited bleach-like stains, and one of the tank tops exhibited reddish-brown blood-like stains. When . . . Buglione, who was at the police station questioning the [petitioner], learned of this discovery, he told the [petitioner] and asked him to elaborate. The [petitioner] then became upset and requested a Bible. The detectives subsequently issued Miranda warnings to the [petitioner], who proceeded to give an inculpatory statement to the detectives, describing in detail the manner in which he had murdered the victim.” (Internal quotation marks omitted.)

The petitioner was charged with murder in violation of General Statutes § 53a-54a. Subsequently, the petitioner was convicted following a jury trial and was sentenced to sixty years imprisonment. On direct appeal, the petitioner claimed that the court improperly admitted physical evidence unlawfully seized from his home by the police because his mother had refused to consent to the search. Our Supreme Court concluded that the search of the petitioner’s home violated article first, § 7, of our state constitution, holding that “the police must obtain the consent of all joint occupants who are present when consent is sought in order for a search by consent to be valid.” State v. Brunetti, 276 Conn. 40, 52, 883 A.2d 1167 (2005). The court reversed the judgment of conviction and remanded the case for a new trial. Id., 65. The state then filed a motion for reconsideration en banc, which was granted. State v. Brunetti, supra, 279 Conn. 42. Upon reconsideration, the Supreme Court vacated and superseded its decision, holding that the petitioner was not entitled to review of his unpreserved search and seizure claim because he failed to provide an adequate record for review under the first prong of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and affirmed the petitioner’s conviction. State v. Brunetti, supra, 42-43.

The petitioner filed an amended three count petition for a writ of habeas corpus on September 30, 2008. In counts one and two, the petitioner claimed that the search and seizure of evidence from his home was unlawful under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, respectively. In the third count, the petitioner claimed ineffective assistance of counsel.

Following a habeas trial, the court denied the petition for a writ of habeas corpus. The court found that the petitioner was procedurally defaulted from raising his constitutional claims for the first time on habeas review. The court rejected both of the petitioner’s arguments that his default was excused by the ineffective assistance of counsel or, in the alternative, the alleged novelty of his constitutional claim that “his mother’s refusal to consent rendered the search of his home unlawful.” The court also rejected, on its merits, the petitioner’s claim of ineffective assistance of counsel. The court granted the petitioner’s petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

The petitioner raises two claims on appeal. The petitioner first argues that the habeas court’s finding that the petitioner’s mother “took no clear position regarding” consent to search the family home was clearly erroneous. Second, the petitioner asserts that the court improperly rejected both excuses for his procedural default. He claims that the court improperly rejected his claim of ineffective assistance of counsel regarding his trial counsel's failure to create an adequate record regarding the petitioner’s mother’s lack of consent to search the family home and failing to file a motion to suppress the evidence seized from the home. The petitioner claims that both of those failures by his counsel prejudiced the outcome of his criminal trial. Alternatively, the petitioner argues that the court improperly rejected his argument that his unlawful search and seizure claim was sufficiently novel to excuse his procedural default.

I

The petitioner first argues that the court’s finding that his mother “took no clear position regarding” consent to the search the family home was clearly erroneous. The standard of review for a habeas court’s findings of fact is well settled. “To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... [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.” (Citation omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction, 107 Conn. App. 833, 838, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). “Whether a [person] voluntarily has consented to a search is a question of fact to be determined by the trial court from the totality of the circumstances based on the evidence that it deems credible along with the reasonable inferences that can be drawn therefrom. . . . Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal.” (Citations omitted; internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 699, 817 A.2d 76 (2003).

The petitioner’s mother declined to sign a consent form to search the family home when asked by the officers at the police station where the petitioner was in custody. She testified that she disagreed with the search and told the officers that she did not want them in the family home, but she did not prevent the police from conducting the search because the police informed her that her signature was not needed. She testified that she disagreed with her husband’s decision to sign the consent form. On the basis of this testimony, the court found that “ [i]t is not clear whether his mother affirmatively refused to consent to the search, as alleged by the petitioner. What is clear is that she refused to sign the consent form presented to her by the police but ‘the act of declining to sign a consent to search form is not tantamount to a refusal to consent to the search . . . .’ (Emphasis in original.) [State v. Brunetti, supra, 279 Conn. 56]. Based on her testimony at the habeas trial, this court finds that not wanting to have any part in the search of [the family] home, she took no clear position regarding it.”

From the evidence before the habeas court, it is clear that the petitioner’s mother refused to sign the consent form, however, we cannot conclude that the court’s finding that it was unclear as to whether she affirmatively refused to consent to the search was clearly erroneous. The petitioner’s mother expressed her disagreement with her husband’s consent to the search and told the officers that she did not want them in the family home. Other than this expression of disagreement, the petitioner failed to show that his mother affirmatively refused to consent to a search of the home. Based on the totality of the facts before the habeas court, we cannot say that the court’s finding that the petitioner’s mother took “no clear position regarding” the search of the family home was clearly erroneous.

II

The petitioner conceded at the habeas trial that he did not raise at his criminal trial the constitutional claims in counts one and two of his petition. To excuse this procedural default, the petitioner claimed the ineffective assistance of trial counsel or, in the alternative, the novelty of the unlawful search and seizure claim at the time of his criminal trial.

“The appropriate standard for reviewability of habeas claims that were not properly raised at trial... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.” (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003). Additionally, “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). We now address each of the petitioner’s excuses for his procedural default with regard to his constitutional claim.

A

The petitioner first argues that the court improperly rejected his claim of ineffective assistance of counsel. Specifically, the petitioner claims that his trial counsel, Vito Castignoli, was deficient for (1) failing to create an adequate record of the petitioner’s mother’s refusal to consent to a search of the petitioner’s home and (2) failing to file a motion to suppress the evidence seized by police following the search of the petitioner’s home. We are not persuaded.

“Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by [an appellate] court . . . .” William B. v. Commissioner of Correction, 128 Conn.App. 478, 488, 17 A.3d 622, cert. denied, 302 Conn. 912, 27 A.3d 371 (2011). “To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). . . . According to Strickland, [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied .... Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong. ... [A] reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one . . . .” (Citations omitted; internal quotation marks omitted.) William B. v. Commissioner of Correction, supra, 488-89.

“ [Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”- (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 62-63, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

When examining the performance prong, we note that “the petitioner must show that [counsel’s] representation fell below an objective standard of reasonableness in order to establish ineffective performance. ... In other words, the petitioner must demonstrate that [counsel’s] representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... In analyzing [counsel’s] performance, we indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance .... The petitioner bears the burden of overcoming this presumption.” (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2006), cert. denied sub nom. Ledbetter v. Lantz, 646 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006).

At the habeas trial, Castignoli testified that his focus was on suppressing the petitioner’s confession and suppression of the evidence seized by the police as a result of the search of the petitioner’s home. Castignoli testified that he believed that his best strategy for suppressing the inculpatory evidence found at the petitioner’s home was to establish that the consent of the petitioner’s father was not voluntary. Castignoli testified that he determined that to be the best strategy after researching the federal and state case law which, at the time, indicated that one cohabitant could consent to the search of a home, although he found no cases directly on point where both cohabitants were present and one did not consent. Although the trial court and Supreme Court rejected Castignoli’s argument that the petitioner’s father’s consent was involuntary, it was still a valid claim under State v. Jones, 193 Conn. 70, 80, 475 A.2d 1087 (1984).

Additionally, we agree that Castignoli’s determination not to base any suppression claim on the petitioner’s mother’s lack of consent was reasonable. The court found that “[notwithstanding the existence of persuasive authority from other jurisdictions, the claim was, and remains one, of first impression in Connecticut.” “[T]o perform effectively, counsel need not recognize and raise every conceivable constitutional claim. . . . Moreover, numerous state and federal courts have concluded that counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance. Nor is counsel required to change then-existing law to provide effective representation. . . . Counsel instead performs effectively when he elects to maneuver within the existing law, declining to present untested . . . legal theories.” (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 460-62. Both the evidence presented at the habeas trial and the petitioner’s arguments are insufficient to overcome the strong presumption of correctness afforded to the strategic decision made by trial counsel. See, e.g., Stepney v. Commissioner of Correction, 129 Conn. App. 364, 368, 19 A.2d 1262 (2011). On the basis of its findings, the court properly concluded that the petitioner failed to prove ineffective assistance of counsel. Because we agree that it was reasonable for Castignoli not to move to suppress on the ground of the petitioner’s mother’s refusal to consent, we likewise conclude that Castignoli cannot be held to have performed deficiently for failing to make an adequate record of the mother’s refusal to consent to the search of the home.

B

Next, the petitioner claims that his constitutional claim was sufficiently novel to excuse his procedural default. We disagree. Whether a claim has a reasonable basis in existing law is a question of law; accordingly, we exercise plenary review over the habeas court’s ruling. See Correia v. Rowland, supra, 263 Conn. 462. “ [T]he United States Supreme Court has held that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable . . . procedures .... In so holding, the court noted that the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client’s interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 463. “The court stated that, by definition, an attorney would not have had a reasonable basis for developing that theory if the new constitutional rule arose out of one of three situations: (1) the [explicit] overruling] of a court precedent; (2) a decision overturning] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved; or (3) a decision that may disapprov[e] a practice this Court arguably has sanctioned in prior cases.” (Internal quotation marks omitted.) Id., 464.

In the present case, the petitioner argues that because the court found that Castignoli’s failure to make a constitutional claim of first impression did not constitute deficient performance, then the court should have found sufficient cause to excuse the petitioner’s default because the claim was novel at the time of the petitioner’s trial. Although the constitutional claim would have been one of first impression if made at the trial court, that does not lead us to conclude automatically that the claim is so novel as to excuse the procedural default. As the habeas court noted, the petitioner initially raised his constitutional claim on direct appeal in 2003, however, the petitioner’s trial was only one year before in 2002 and there were no relevant developments in the case law during that time. Subsequently, the United States Supreme Court decided Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006), holding that “a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Id., 122-23. The habeas court distinguished Randolph, noting that the petitioner was not physically present at the time that consent was given. Nevertheless, “the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all.” Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986). “[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Johnson v. Commissioner of Correction, 218 Conn. 403, 422, 589 A.2d 1214 (1991).

In Johnson, our Supreme Court determined that because there was a “reasonable basis” at the time of the petitioner’s trial for making the constitutional claim, the petitioner was procedurally defaulted from making the same claim on habeas review. Id. In the present case, the petitioner acknowledges that three states have recognized the rights of present, objecting cohabitants since at least the 1970s. Therefore, there was a “reasonable basis” in the case law at the time of the petitioner’s trial to make such a constitutional claim. Additionally, the petitioner’s constitutional claim does not fall under one of the three categories articulated for a “new constitutional rule” in Correia v. Rowland, supra, 263 Conn. 464. Because there was a “reasonable basis” for the claim, the claim was “available” to Castignoli at the time of the default, but he failed to make it. We conclude that the petitioner has failed to show that his constitutional claim was so novel as to excuse his procedural default.

The judgment is affirmed.

In this opinion the other judges concurred.

       Castignoli’s motion to suppress the evidence seized at the home was premised on the involuntary consent of the petitioner’s father. The petitioner’s father testified that he felt compelled to sign the consent form after speaking with his brother, a police detective in West Haven. Castignoli argued that under State v. Jones, 193 Conn. 70, 80, 475 A.2d 1087 (1984), “the intimation that a warrant will automatically issue is as inherently coercive as the announcement of an invalid warrant.”

       Because Castignoli did not render deficient performance, we need not reach the prejudice prong of the Strickland test. See William B. v. Commissioner of Correction, supra, 128 Conn. App. 489.

       Because the petitioner has failed to establish cause for his procedural default, we need not address the prejudice prong of the cause and prejudice test. See Crawford v. Commissioner of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. SALVATORE CARACOGLIA
    (AC 32699)
    Gruendel, Beach and Flynn, Js.

      Argued October 25, 2011 —
    officially released March 13, 2012

      Salvatore Caracoglia, pro se, the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Jeffrey Doskos, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The self-represented defendant, Salvatore Caracoglia, appeals from the judgment of conviction of two counts of the infraction of creating a public disturbance in violation of General Statutes § 53a-181a (a) (1) and (2), respectively. He was convicted after a court trial and has appealed on grounds that: (1) both subdivisions of the statute are facially vague, (2) the court improperly overruled the defendant’s objection to an amendment to the information, (3) the court improperly overruled a defense “objection” to the state’s failure to produce a tape recording of a 911 emergency telephone call made in connection with the incident that gave rise to the charges, (4) the defendant improperly was denied the right to a trial by jury, (5) the court denied the defendant’s right to compulsory process to require the attendance of certain witnesses in his defense case and (6) the evidence did not suffice to establish the required mens rea for the commission of the infractions. We affirm the judgment of the trial court.

The record reveals the following procedural history and facts, which the trial court reasonably could have found. The Middletown Chamber of Commerce maintains a kiosk near 386 Main Street in Middletown where the public can post flyers and other paperwork to publicize job openings, activities and events taking place throughout the town. Sometime between noon and 12:30 p.m. on October 24,2009, the defendant was using a large hammer stapler to staple flyers onto the kiosk in such a manner as to cover and to obscure the other business and activity flyers already in place. By the time the defendant had covered at least two rows of flyers, Elizabeth Santangelo (Mrs. Santangelo), a member of the Chamber of Commerce, had exited 386 Main Street and began removing the defendant’s flyers out of concern that they were obstructing the view of the flyers that were underneath. Mrs. Santangelo was not positioned near the defendant, and the defendant had his back toward her when she began removing the flyers. At no point during her subsequent interaction with the defendant did Mrs. Santangelo become physical or touch him.

The defendant confronted Mrs. Santangelo once he realized that she was removing his flyers. Mrs. San-tangelo explained that the kiosk was maintained by the local Chamber of Commerce and that the defendant could not obstruct the other flyers. The defendant insisted that he had a right to post his flyers and yelled at Mrs. Santangelo in a loud manner. As Mrs. Santangelo continued her attempt to converse with the defendant, the defendant grabbed her shirt, which prompted her to yell: “Don’t touch me.” The defendant took a step toward Mrs. Santangelo and raised the hammer stapler over his head in a threatening manner. Mrs. Santangelo stated, “go ahead hit me,” to which the defendant responded, “I don’t have to hit you,” adding that he “could punch [her] and knock [her] down.” Mrs. San-tangelo felt threatened and terrorized.

Officer Brian White of the Middletown police department was dispatched to the scene and arrived at approximately 12:30 p.m. Once Mrs. Santangelo was aware of the officer’s presence, she recommenced the removal of the defendant’s obstructive flyers from the kiosk. The defendant, acting in an angry and agitated state, as witnessed by Officer White, then approached Mrs. Santangelo and struck her on the right forearm. The defendant acknowledged that he made physical contact with Mrs. Santangelo, but claimed that he only “used [his] hand to move her hand” away from the flyers. The defendant also admitted to raising the hammer stapler over his head and acknowledged placing it into his vehicle prior to the arrival of the police. After a court trial, the court, Vitale, J., rendered a judgment of conviction on July 28, 2010, of two counts of the infraction of creating a public disturbance in violation of § 53a-181a (a) (1) and (2), respectively. This appeal followed.

I

We first address the defendant’s facial vagueness claim. There are two categories of impermissible vagueness of statutes. The first is facial vagueness in which no matter what the factual setting, the challenged legislative enactment is so lacking in standards and so amorphous as to give a person subject to it no real notice of what it proscribes so that conduct can be conformed to it. The second category is vagueness as applied to a particular factual situation. The defendant’s claim is that § 53a-181a (a) (1) and (2), creating infractions of creating a public disturbance, are vague and that they impinged on his first amendment rights. We therefore analyze the claim as one of unconstitutional facial vagueness and reject his contention in reliance on our Supreme Court’s decision in State v. Indrisano, 228 Conn. 795, 801, 804, 640 A.2d 986 (1994), in which the court determined in examining a similar claim made in relation to a similar statute that the language of the statute was not facially vague.

“[A] penal statute [must] define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. . . . [This concept] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . [T]he [most] important aspect of the vagueness doctrine is not actual notice . . . but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . and must not impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. . . . Finally, [i]f the meaning of a statute can be fairly ascertained [the] statute will not be void for vagueness . . . for [i]n most English words and phrases there link uncertainties. . . . [T]he statute must contain some core meaning within which the defendant’s actions clearly fall. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning. . . .

“For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on his claim, the defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.” (Internal quotation marks omitted.) State v. Stephens, 301 Conn. 791, 801-802, 22 A.3d 1262 (2011).

In the present case, the defendant claims that the creating a public disturbance infractions violated his first amendment right to free speech. We therefore review and analyze this appellate claim as challenging the constitutionality of the statute on its face, because the defendant claims that the statute is vague and ambiguous in that it lacks a core meaning. We examine the words of the statute and prior judicial gloss put on it to determine whether the statute gives proper notice of the conduct it proscribes so that it does not impinge on free speech rights guaranteed by the first amendment to the United States constitution. See State v. Ryan, 48 Conn. App. 148, 153-54, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998).

Our Supreme Court in State v. Indrisano, supra, 228 Conn. 809, adopted a judicial gloss on a similarly worded statute prohibiting the misdemeanor of disorderly conduct in violation of General Statutes § 53a-182. Like the statutory infractions of which the defendant was convicted, the disorderly conduct statute requires that the state prove that the defendant’s predominant intent was to cause, what a reasonable person operating under contemporary community standards would consider, a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation or a feeling of anxiety as to threatened danger or harm. Id., 810. The court stated that a defendant’s “predominant intent must be to cause inconvenience, annoyance or alarm, rather than to exercise his constitutional rights.” Id., 809. It also defined inconvenience as representing “something that disturbs or impedes,” annoyance as representing “vexation; a deep effect of provoking or disturbing,” and finally alarm as “filled with anxiety as to threatening danger or harm.” Id., 810. The court held that as to mens rea, the predominant intent must be “to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm.” Id.

The defendant acknowledges that the disorderly conduct language so construed by the court in Indrisano is identical to the language of the creating a public disturbance statute. Our Supreme Court’s holding in Indrisano, therefore, governs this claim, and, by that gloss, the provisions of § 53a-181a (a) (1) and (2) are not facially vague.

II

The defendant also claims that, on the day of the trial, June 23, 2010, the state improperly charged him in a substituted information with the infractions at issue in this appeal in lieu of the misdemeanor charges of disorderly conduct in violation of § 53a-182 (a) (1) and (2). The defendant claims that the substituted charges violated his sixth amendment right “to be informed of the nature and cause of the accusation” and his right to due process of law as protected by the fourteenth amendment to the United States constitution. We disagree.

Practice Book § 36-17 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in its discretion may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

“In determining whether the defendant’s rights were prejudiced, this court considers the totality of the circumstances in deciding whether the defendant was surprised by the changes and whether the defense was hampered. ... A bare assertion of prejudice is not sufficient to support a claim of prejudice. . . . The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law . . . .” (Citations omitted; internal quotation marks omitted.) State v. Ryan, 53 Conn. App. 606, 621, 733 A.2d 273 (1999).

The record indicates that the defendant initially was charged by the police with two counts of disorderly conduct in violation of § 53a-182. The court found that during a February 16, 2010 court proceeding, attended by the defendant and held almost five months before the start of trial, the state filed a substitute information, substituting for the misdemeanor charges of disorderly conduct originally charged, two counts of the infraction of creating a public disturbance. The state on June 23, 2010, the first day of trial, filed a long form information again charging two counts of the infraction of creating a public disturbance. We therefore reject the defendant’s claim that the state, on the day of trial, improperly substituted the initial disorderly conduct charges with charges of creating a public disturbance, because that premise is not grounded in fact.

Ill

We next address the defendant’s claim that the state violated disclosure obligations when it failed to disclose to him exculpatory information contained in a tape recording that once existed of a 911 emergency telephone call relayed to police authorities concerning the incident at issue. The defendant claims that the trial court committed error by failing to dismiss the charges against him as a result of the state’s failure to disclose the exculpatory information contained on the tape. We disagree.

The following additional facts are necessary to our analysis. The 911 tape containing the alleged exculpatory information relating to the incident at the kiosk was preserved for only thirty days after the date that the infractions occurred on October 24, 2009. Thirty-two days after the incident, on November 25, 2009, the defendant filed a motion for discovery requesting the state to disclose “all the information” in its “systems of record” pursuant to Practice Book §§ 40-11, 40-12 and 40-13 relating to the charges against him. The state issued its response to the defendant’s discovery request on December 15,2009, and attached a copy of the police report, the misdemeanor summons and complaint, Mrs. Santangelo’s statement and the defendant’s criminal record. The state also disclosed that it was not in possession or aware of any exculpatory material at the time it issued the response. The defendant did not request specifically the 911 tape until January 19, 2010, almost three months after he had been arrested. In response, the state immediately made a request to the Middletown dispatch center for copies of the tape, but was informed that the tape had been reused and was no longer available.

The defendant never moved to dismiss the infraction charges against him on the ground that the state had not provided him with the tape recording. The defendant did interpose an objection and claimed the state was withholding exculpatory evidence.

We turn now to the law and standard of review governing the state’s obligation to disclose exculpatory evidence to criminal defendants. “The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Simms, 201 Conn. 395, 405 & n.8, 518 A.2d 35 (1986).” (Internal quotation marks omitted.) State v. Ouellette, 295 Conn. 173, 185, 989 A.2d 1048 (2010). The Brady analysis also applies to alleged discovery violations involving, as in this case, infraction charges. See State v. Anthony, 24 Conn. App. 195, 196-97, 208, 588 A.2d 214, appeal dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991) (applying Brady analysis to alleged discovery violation in court trial for infractions of simple trespass and creating public disturbance). “In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.” (Internal quotation marks omitted.) State v. Ouellette, supra, 185. General Statutes § 54-86c has amplified the first prong of the Brady test in Connecticut by imposing a continuing duty on the state to disclose both all exculpatory information in its possession and exculpatory information of which it subsequently becomes aware, regardless of a request by the defendant. See State v. Bryant, 17 Conn. App. 525, 527, 554 A.2d 1105 (1989). “[T]he trial court’s decision regarding ... a Brady violation will be overturned only upon a finding of clear abuse of discretion.” (Internal quotation marks omitted.) State v. Sells, 82 Conn. App. 332, 351, 844 A.2d 235, cert. denied, 270 Conn. 911, 853 A.2d 529 (2004).

In the present case, the court overruled the defendant’s objection because the defendant had not requested the tape in a timely manner, and his late request was made after the tape had been destroyed. We conclude that the court did not abuse its discretion in overruling the defendant’s objection. The state was unaware of the existence of any exculpatory information when it disclosed the materials in its possession, and the tape was no longer available when the state contacted the Middletown dispatch center immediately after the defendant brought the tape request to the state’s attention. Because the defendant delayed in making this request, the state no longer had access to the tape, which had been erased and reused. The state has no duty to disclose information that it does not have. State v. Spigarolo, 210 Conn. 359, 386, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Under these circumstances, the court properly exercised its discretion. We therefore reject this claim.

IV

We next turn to the defendant’s claim that he was denied his right to a trial by jury. The maximum fíne for the infractions for which he was charged is ninety dollars per count. See General Statutes §§ 53a-181a (b) and 51-164n (g). A jury trial is not accorded to one charged with an infraction where the maximum penalty for any such count is a fine not exceeding one hundred and ninety-nine dollars. See General Statutes § 54-82b (a).

The defendant is claiming that he, nonetheless, has a valid claim to ajury trial because the sixth amendment to the United States constitution grants such a right in “all criminal prosecutions.” The defendant, however, misinterprets our law; the infractions of which he was convicted are not “criminal prosecutions.” Generally, certain categories of petty crimes or offenses are not subject to the sixth amendment jury trial provisions, and crimes carrying penalties of up to six months imprisonment do not require a jury trial if they, otherwise, qualify as petty offenses. Duncan v. Louisiana, 391 U.S. 145, 159, 88 S. Ct. 1444, 20 L. Ed. 2d. 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968).

The infractions for which the defendant was charged impose no penalty of imprisonment. General Statutes § 53a-24 (a) provides in relevant part: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state. . . or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that ... is deemed to be an infraction. ...” An infraction is not defined as a crime or criminal prosecution by the applicable General Statutes. Section 53a-24 (a) provides that “the term crime comprises felonies and misdemeanors.” An infraction is neither. Section 53a-24 (a) further provides that every offense that is not a crime is a “violation.” Section 53a-24 (a) specifically exempts “infraction” from the definition of offense, and, therefore, it could not constitute either an offense or what the statute defines as a violation. The defendant’s sixth amendment claim fails because the infractions for which he was charged are not “criminal prosecutions” that the sixth amendment contemplates would carry with them a right to a jury trial.

V

We address next the defendant’s claim that the court denied his sixth amendment right to compulsory process by not ordering the clerk of the court to issue subpoenas requiring the presence of certain witnesses in his defense case.

The following additional facts are pertinent. On June 23, 2010, the first day of trial, the defendant requested that he be given a brief continuance to secure witnesses. The court, however, noting that the defendant had been aware of his trial date since June 7, 2010, and that he had failed to take any steps to compel the attendance of these witnesses, requested that the defendant make an offer of proof as to what testimony he would elicit from them before granting a continuance. After the defendant’s offer of proof, the court denied the request for a continuance. The defendant challenges the court’s decision not to order the issuance of subpoenas with respect to two witnesses: Joe Imme and Councilman Robert Santangelo (Mr. Santangelo). We will address the court’s ruling with respect to each witness in turn.

A

On the first day of trial, the defendant sought a subpoena to call Imme to the witness stand to establish that Imme had “sent the Mafia after [the defendant].” We conclude that the defendant has not shown an abuse of discretion in the court’s decision not to order the issuance of a subpoena for Imme.

“The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The right to present a defense, and its concomitant right to compulsory process, are not unqualified. ... To establish a violation of the right to present a defense based on lost evidence, a defendant must show that the evidence was material and exculpatory, and that it was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Internal quotation marks omitted.) State v. Tomas D., 296 Conn. 476, 497, 995 A.2d 583 (2010).

It is clear from reviewing the defendant’s proffer that he sought to compel the attendance of Imme because of a personal conflict between him and Imme, which he wanted to address in court. The defendant’s request to call Imme to testify about alleged threats that Imme had directed against the defendant was immaterial to the presentation of the defendant’s defense against the charges of creating a public disturbance. “[T]he right to present a defense does not include the right to offer evidence that is incompetent, irrelevant, or otherwise inadmissible.” (Internal quotation marks omitted.) State v. McHolland, 71 Conn. App. 99, 108 n.8, 800 A.2d 667 (2002). Consequently, the court did not violate the defendant’s compulsory process rights by not ordering the issuance of a subpoena for Imme.

B

As to the defendant’s claim that the court should have issued a subpoena to compel the attendance of Mr. Santangelo, the defendant claims that another witness, Christopher Calabrese, lied on the witness stand when he testified that Mr. Santangelo was present at the scene of the incident between the defendant and Mrs. San-tangelo and that Mr. Santangelo’s testimony would call into question the veracity of Calabrese. Assuming without deciding that the court improperly abused its discretion in not allowing the defendant to call Mr. Santangelo as a witness, we conclude that any such error by the court was harmless. It is not enough to show evidentiary error; the defendant also must show harm. Rokus v. Bridgeport, 191 Conn. 62, 70, 463 A.2d 252 (1983).

The following additional facts inform our review. The defendant first requested that the court issue a subpoena for Mr. Santangelo so that the defendant could question him about whether he had threatened the defendant on November 6, 2009. The court denied the defendant’s request because it was not relevant'to the altercation at the kiosk between Mrs. Santangelo and the defendant on October 24, 2009. The defendant responded that Mr. Santangelo’s testimony would be relevant because Calabrese offered testimony earlier that Mr. Santangelo was present at the scene, which directly contradicted the defendant’s recollection that he was not present. The court ultimately denied the defendant’s request, finding that Calabrese’s testimony never indicated that Mr. Santangelo was present at the altercation during the relevant time period, and that Mr. Santangelo’s testimony, therefore, would be irrelevant.

Our review of Calabrese’s testimony reveals that he was uncertain as to when, exactly, Mr. Santangelo arrived at the scene. Calabrese testified that Mr. San-tangelo was inside the Democratic Party headquarters at the time the altercation started, that Mr. Santangelo did emerge at some point but that Calabrese was unsure as to the exact moment when he emerged. “The testimony of any witness may be contradicted by the testimony of any other witness.” (Internal quotation marks omitted.) State v. Warren, 14 Conn. App. 688, 699, 544 A.2d 209, cert. denied, 209 Conn. 805, 548 A.2d 442 (1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 839, 102 L. Ed. 2d 971 (1989). The defendant wanted to examine Mr. Santangelo to ascertain whether he was ever present at the scene of the altercation to cast doubt as to the veracity of Calabrese’s testimony. If Mr. Santangelo revealed that he, in fact, was never present at the scene at any point either during or after the altercation, then the veracity of the rest of Calabrese’s testimony, including his assertion that the defendant had grabbed Mrs. Santangelo forcefully, would be called into question by the fact finder. The prerogative of the fact finder to discredit the entire testimony of a witness if it determines that the witness intentionally has testified falsely in some respect is referred to by the Latin maxim falsus in uno, falsus in omnibus. See State v. Smith, 201 Conn. 659, 666, 519 A.2d 26 (1986).

We conclude, however, that any error committed by the court in refusing to order the issuance of a subpoena for Mr. Santangelo was harmless. The defendant raises this error as a constitutional violation. The test of whether a constitutional violation is harmless depends on whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. State v. Gerardi, 237 Conn. 348, 362, 677 A.2d 937 (1996). Accordingly, “we review the record to determine whether there is a reasonable possibility that the evidence . . . complained of might have contributed to the conviction . . . .” (Internal quotation marks omitted.) Id. “[W]hen there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hoeplinger, 206 Conn. 278, 295, 537 A.2d 1010 (1988).

Our review of the record reveals that there was sufficient independent eyewitness testimony from Officer White to convict the defendant of the charged infractions beyond a reasonable doubt. Officer White corroborated much of Mrs. Santangelo’s testimony including his observation that the defendant struck her aim. At most, the proffered testimony from Mr. Santangelo only would have gone to the issue of Calabrese’s credibility as a witness. Regardless of that determination, there remained sufficient evidence, through the testimony of Mrs. Santangelo and Officer White, to allow the fact finder to convict the defendant of the charged infractions beyond a reasonable doubt.

C

We next discuss the defendant’s attempt to recall Mrs. Santangelo. After this request was made, the court ordered the defendant to make an offer of proof about what additional material evidence he sought to obtain from his reexamination of her.

“The trial court has broad discretion in determining whether to permit a witness to be recalled. ... In determining whether the trial court abused its discretion, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Wegman, 70 Conn. App. 171, 186-87, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). “Reversal is required only where an injustice appears to have occurred. . . . To establish an abuse of discretion, it must be shown that restrictions imposed on . . . [examination] were clearly prejudicial.” (Internal quotation marks omitted.) State v. Oliphant, 115 Conn. App. 542, 550, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). It is a cardinal rule of the law of evidence that cross-examination is limited to the scope of the direct examination. State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983). We do not agree with the breadth of the trial court’s statement that cross-examination would always suffice for a defendant to present evidence on his own behalf because the scope of the state’s direct examination inherently limits the scope of the defendant’s cross-examination. It occasionally may be necessary for the defendant to go beyond the scope of direct examination to present information material to his defense. To do so he may need to recall a witness. A trial court’s discretion, therefore, is not unbridled if a defendant can show the need to go beyond the scope of the direct examination to present evidence material to his defense. The defendant’s stated reason for recalling Mrs. Santangelo was to clarify areas where her previous testimony conflicted with that of other witnesses. The court observed that resolving conflicts of evidence was a duty reserved to the court, and it did not justify recalling Mrs. Santangelo so that the defendant could ask the same questions he already had posed to her on cross-examination. The court did not abuse its discretion in denying the defendant’s request to recall Mrs. Santangelo when the defendant could not point to any new evidence to be adduced that was material to his defense.

VI

Finally, the defendant argues that his judgment of conviction should be vacated because there was insufficient evidence to sustain a finding of guilty. After first being charged by the police with disorderly conduct in violation of § 53a-182, on February 16, 2010, the defendant was then charged in a substituted short form information with two infractions of creating a public disturbance in violation of § 53a-181a. On the day the court trial commenced, June 23, 2010, the state again filed a substitute information, this time in long form, making the allegations of each count more particular in pertinent part, as follows: “as to the first count, that on October 24, 2009 at or near 386 Main Street . . . the defendant, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . engaged in fighting or in violent, tumultuous or threatening behavior in violation of [§] 53a-181a (a) (1) of the Connecticut General Statutes.” In the second count, the state charged that “on the same day at the same place, the defendant, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . annoyed or interfered with another person, namely: Elizabeth Santangelo, by offensive conduct in violation of [§] 53a-181a (a) (2) of the Connecticut General Statutes.”.

In determining whether the evidence is sufficient to sustain a verdict, “the issue is whether a jury 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.” (Internal quotation marks omitted.) State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981). The evidence is given the consideration most favorable to sustaining the verdict and to establishing each element necessary to prove the charges. Id., 403. The same factual circumstances can support a jury finding of either intentionality or recklessness. Id., 403-404. The court found that the defendant was guilty of both infraction charges.

The defendant never moved the trial court to acquit him because of insufficient evidence nor did he seek dismissal of the charges for failure to make out a prima facie case. On appeal, the defendant essentially argues in his brief that there was insufficient evidence to support a conviction under either the breach of the peace statute; General Statutes § 53a-181; or the disorderly conduct statute; General Statutes § 53a-182; rather than addressing the infractions with which he was charged. He takes issue with the conflicting versions of events testified to at trial. Sufficiency of the evidence is distinct from the credibility of witnesses. “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 [finding] of guilty.” (Internal quotation marks omitted.) State v. Cox, 293 Conn. 234, 245, 977 A.2d 614 (2009).

After a careful review of the record, we conclude that there was ample and sufficient evidence and permissible inferences drawn therefrom to support the court’s determination that the defendant possessed the required mental state to have violated § 53a-181a (a) (1) and (2) of which he was convicted.

For all of the above reasons, the judgment is affirmed.

In this opinion the other judges concurred.

       The trial court found that the defendant raised the hammer stapler over Mrs. Santangelo’s head in a threatening manner. It is clear from her testimony, however, that the defendant raised the hammer stapler over his head in a threatening manner.

       The defendant also mentions on page twenty-two of his brief that the state failed to disclose a police report filed by Officer Jorge Yepes and a written report filed by Mrs. Santangelo on October 24, 2009. His brief provides little analysis with respect to his claims as to either document. Therefore, we decline to review his claims.

       The relevant excerpt from Calabrese’s testimony reads as follows: “Mr. Santangelo eventually came outside at some point. I mean, it had to have been at least an hour between when the incident started and when . . . Officer White was done questioning everybody. At some point, Mrs. San-tangelo’s husband did come outside.”

       literally, false in one, false in all.