author: BORDEN, J.

text:
    CHASE HOME FINANCE, LLC v. GERMANIE FEQUIERE
    (AC 31301)
    Gruendel, Beach and Borden, Js.

      Argued December 3, 2009
    officially released March 2, 2010

      Edward F. Kunin, for the appellant (defendant).

      S. Bruce Fair, for the appellee (substitute plaintiff U.S. Bank National Association, as trustee).
   Opinion

BORDEN, J.

The defendant, Germanie Fequiere, appeals from the judgment of strict foreclosure rendered by the trial court following the denial of her motion to dismiss, for lack of subject matter jurisdiction, this foreclosure action brought by the substitute plaintiff, U.S. Bank National Association, as trustee. The defendant claims that the court improperly concluded that the plaintiff had standing to bring the foreclosure action. Specifically, the defendant claims that the court improperly concluded that (1) the plaintiff was a valid assignee of the mortgage securing the defendant’s promissory note to BNC Mortgage, Inc., the plaintiffs predecessor in interest and (2) the Structured Asset Investment Loan Trust (SAIL), the entity for which the plaintiff is trustee, was a valid express trust as required by General Statutes § 52-106. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On August 25, 2005, the defendant executed and delivered a promissory note in the principal amount of $240,000 to BNC Mortgage, Inc. As security for the note, the defendant executed and delivered a mortgage on real property located at 208-210 Wheeler Avenue in Bridgeport to Mortgage Electronic Registration Systems, Inc. (MERS). The property was mortgaged to MERS, its successors and assigns “as nominee for [BNC Mortgage, Inc.] and [its] successors and assigns . . . .” MERS subsequently assigned the mortgage to the plaintiff by virtue of a recorded assignment of the mortgage. The promissory note was endorsed in blank by BNC Mortgage, Inc., and is in possession of the plaintiff.

On September 29, 2008, the plaintiff commenced this foreclosure action against the defendant. In its complaint, the plaintiff alleged, inter alia, that it was the holder of the note and mortgage, that the note was in default and that it was exercising its option to accelerate the balance due on the note. On February 17, 2009, the court entered a default for failure to appear against the defendant and rendered a judgment of strict foreclosure. The court set May 19, 2009, as the first law day.

On May 8, 2009, the defendant filed a motion to open the judgment of strict foreclosure. In support of her motion, the defendant claimed that she did not receive the summons and complaint in connection with the plaintiffs foreclosure action and that “[tjhere may be a defense to this action . . . .’’On May 11, 2009, the court granted the defendant’s motion to open the judgment of strict foreclosure to the extent of extending the first law day to July 28, 2009.

On May 19, 2009, the defendant filed a motion to dismiss the underlying foreclosure action for lack of subject matter jurisdiction, accompanied by a memorandum of law in support of her motion. See Practice Book §§ 10-30 and 10-31. In her motion and supporting memorandum of law, the defendant claimed that the plaintiff did not have standing to commence its foreclosure action. Specifically, the defendant asserted that the plaintiff lacked standing to bring the action because MERS, the original mortgagee as nominee for BNC Mortgage, Inc., did not have proper title to the mortgage and, therefore, its purported assignment of the mortgage to the plaintiff was ineffective. Additionally, the defendant claimed that the trust for which the plaintiff claimed to be trustee was not an enforceable “express trust” as required by § 52-106. The result of this alleged impropriety, according to the defendant, also deprived the plaintiff of standing to bring its foreclosure action. The defendant did not request an evidentiary hearing to support these claims. Instead, the court heard oral argument from the parties and received briefs, to which were attached copies of various documents, namely, excerpts of a prospectus detailing the SAIL trust agreement, the promissory note endorsed in blank by BNC Mortgage, Inc., the mortgage deed and the assignment of the mortgage from MERS to the plaintiff. The defendant has not supplied this court with a transcript of this oral argument, however.

On July 13, 2009, the court denied the defendant’s motion to dismiss without a written opinion. This appeal followed.

At the outset, we set forth the appropriate standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial corut’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Bonner, 290 Conn. 468, 477-78, 964 A.2d 73 (2009).

Our analysis of the defendant’s claim is also governed by our well established principles of standing. “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . Because a determination regarding the trial court’s subject matter jurisdiction raises a question of law, our review is plenary. . . .

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Citations omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009). “Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793-94, 818 A.2d 69 (2003).

I

The defendant first claims that the plaintiff lacked standing to bring its foreclosure action because it was not a bona fide assignee of the mortgage. This claim is based on the defendant’s assertion that the designation of MERS as the mortgage “nominee” for BNC Mortgage, Inc., was insufficient to bestow proper title to the mortgage on MERS. As such, the defendant maintains that MERS did not have the authority to assign the subject mortgage to any entity other than its “nominator,” BNC Mortgage, Inc. The defendant claims, therefore, that the assignment of the mortgage by MERS to the plaintiff was ineffective and that, consequentially, the plaintiff lacks standing to pursue foreclosure of the property. We disagree.

Even if we were to assume arguendo that the assignment of the mortgage from MERS to the plaintiff was invalid, the defendant’s claim fails. “General Statutes § 49-17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him. Fleet National Bank v. Nazareth, [supra, 75 Conn. App. 795]. The statute codifies the common-law principle of long standing that ‘the mortgage follows the note,’ pursuant to which only the rightful owner of the note has the right to enforce the mortgage. New Milford Savings Bank v. Jajer, 244 Conn. 251, 266, 708 A.2d 1378 (1998); Restatement (Third), Property, Mortgages § 5.4, p. 380 (1997).” Bankers Trust Co. of California, N.A. v. Vaneck, 95 Conn. App. 390, 391-92, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006). Our legislature, by adopting § 49-17, has “provide^] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him.” Fleet National Bank v. Nazareth, supra, 795.

The defendant has failed to offer any evidence to counter the plaintiffs claim that it is a bona fide holder of the promissory note secured by the mortgage on the defendant’s property. In contrast, the plaintiff offered a copy of the promissory note that was endorsed in blank by BNC Mortgage, Inc., by way of an allonge. It is undisputed that the plaintiff is also in possession of the note.

The plaintiffs standing to enforce the promissory note is set forth by the provisions of the Uniform Commercial Code as adopted in General Statutes § 42a-l-101 et seq. Under these statutes, only a “holder” of an instrument or someone who has the rights of a holder is entitled to enforce the instrument. General Statutes § 42a-3-301. The “holder” is the person or entity in possession of the instrument if the instrument is payable to bearer. General Statutes § 42a-l-201 (b) (21) (A). When an instrument is endorsed in blank, it “becomes payable to bearer and may be negotiated by transfer of possession alone . . . .” General Statutes § 42a-3-205 (b).

As stated previously, the subject promissory note was endorsed in blank by BNC Mortgage, Inc., and, therefore, is payable to bearer. The plaintiff, by way of its possession of an instrument payable to bearer, is a valid holder of the instrument and, therefore, is entitled to enforce it. Ninth RMA Partners, L.P. v. Krass, 57 Conn. App. 1, 7, 746 A.2d 826, cert. denied, 253 Conn. 918, 755 A.2d 215 (2000). Furthermore, “[t]he possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there. ... It [is] for the [makers] to set up and prove the facts which limit or change the [bearer’s] rights.” (Internal quotation marks omitted.) SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 571, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998). The defendant has failed to present even a scintilla of evidence demonstrating that the plaintiff was not in possession of the promissory note or contradicting its status as a bona fide holder of the note.

II

We next address the defendant’s claim that the plaintiff lacked standing because the SAIL trust, the entity for which the plaintiff is trustee, was not a valid and enforceable express trust. We disagree.

Section 52-106 provides that “[a]n executor, administrator, or trustee of an express trust may sue or be sued without joining the persons represented by him and beneficially interested in the action.” The defendant maintains, in a conclusory fashion, that the SAIL trust is not an express trust within the purview of § 52-106 and that, therefore, the plaintiff does not have standing to bring its foreclosure action. In support of this proposition, the defendant cites Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986). Her reliance is misplaced.

Second Exeter Corp. concerned the right of a collection agent, acting only in its capacity as an authorized agent of a lender, to bring a claim against a debtor for moneys sought to be collected by the lender. Id., 427-28. In that case, the trial court concluded that the collection agent did not have standing to bring the action in its own name. Id., 427. On appeal, the collection agent asserted that it had standing because “it had a fiduciary duty to its principal analogous to the duty of a trustee to the beneficiary of a trust.” Id., 429. Consequently, the agent claimed that “like a trustee, whose duty provides him with standing to sue in his representative capacity, the collection agent’s accountability should clothe him with a similar standing and authority.” (Emphasis added.) Id.

Affirming the judgment of the trial court, this court concluded that the agent did not have an interest in the litigation that was analogous to that of a trustee, as “[t]he trustee’s standing to sue arises out of its legal title to the trust res.” Id., 429-30. Moreover, this court emphasized that § 52-106 provides the trustee of an express trust with “the statutory right to sue” in its own capacity. Id., 430. Second Exeter Corp., therefore, only relates to the defendant’s appeal insofar as it reinforces the principle that the trustee of an express trust does have standing to commence a legal action, particularly against a debtor. Accordingly, we fail to see how Second Exeter Corp. supports the defendant’s claim that the trust at issue was not a valid express trust and, therefore, that the plaintiff lacked standing to bring its foreclosure action.

Furthermore, the defendant has not offered any evidence or directed our attention to anything in the record that contradicts the plaintiffs assertion that the SAIL trust is a valid and enforceable express trust. Although the defendant asserts in her brief that trusts such as the SAIL trust, which are comprised of real estate mortgage pools, have no cognizable beneficiaries, she fails to cite to any authority or to provide reasoned legal analysis in support of this broad proposition. We are not required to consider issues that are not briefed beyond a bare assertion of a claim. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) (“mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice”). Therefore, we do not address this claim further.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       This action originally was filed under the name Chase Home Finance, LLC. The plaintiff subsequently filed a motion to substitute U.S. Bank National Association, as trustee, as the plaintiff and requested that “the [c]omplaint and [s]ummons be deemed to reflect the same in its entirety,” which the court granted. See Practice Book § 9-20. Accordingly, all references to the plaintiff throughout this opinion are to U.S. Bank National Association, as trustee.

       As one court has explained, “MERS does not originate, lend, service, or invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its members. The MERS system is designed to allow its members, which include originators, lenders, servicers, and investors, to assign home mortgage loans without having to record each transfer in the local land recording offices where the real estate securing the mortgage is located. . . .
      “The benefit of naming MERS as the nominal mortgagee of record is that when the member transfers an interest in a mortgage loan to another MERS member, MERS privately tracks the assignment within its system but remains the mortgagee of record. According to MERS, this system saves lenders time and money, and reduces paperwork, by eliminating the need to prepare and record assignments when trading loans. . . .
      “If, on the other hand, a MERS member transfers an interest in a mortgage loan to a non-MERS member, MERS no longer acts as the mortgagee of record and an assignment of the security instrument to the non-MERS member is drafted, executed, and typically recorded in the local land recording office.” (Internal quotation marks omitted.) Jackson v. Mortgage Electronic Registration Systems, Inc., 770 N.W.2d 487, 490-91 (Minn. 2009).

       At the hearing on the defendant’s motion, she did not pursue this claim, and it is not involved in this appeal.

       Although in form the court granted the motion to open the judgment of strict foreclosure, it did so only to the extent of extending the law days. Therefore, in substance, the judgment of strict foreclosure is still in effect, with only new law days set by the court.

       In a subsequent memorandum of decision, filed December 10, 2009, the court explained its ruling. As to the defendant’s first claim, the corut ruled that the plaintiff was entitled to foreclose on the mortgage because it was the holder of the note. As to the second claim, the court ruled that it was “without merit” because the sole authority on which the defendant relied was not applicable.

       General Statutes § 49-17 provides: “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same maimer and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”

       An allonge is defined as “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” Black’s Law Dictionary (9th Ed. 2009).

       A “ ‘bearer’ ” is the “person in possession of an instrument . . . payable to bearer or endorsed in blank.” General Statutes § 42a-l-201 (b) (5).

       “The requisite elements of a valid and enforceable trust are: (1) a trustee, who holds the trust property and is subject to duties to deal with it for the benefit of one or more others; (2) one or more beneficiaries, to whom and for whose benefit the trustee owes the duties with respect to the trust property; and (3) trust property, which is held by the trustee for the beneficiaries.” (Internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 545, 927 A.2d 903 (2007).

       The plaintiff maintains that the body of the SAIL trust consists of a series of mortgage loans that were placed into asset pools and securitized. In their treatise on Connecticut foreclosures, Denis R. Caron and Geoffrey K. Milne state: “Typically, mortgage loans are placed into asset pools or ‘securities’ based upon various criteria . . . The types of securities typically found are Real Estate Mortgage Investment Conduit . . . and ‘pass through securities.’ . . . Pass-through securities are typically created by a pool of mortgage loans . . . which are then sold to a trust. The holders of the securities receive the payments on the underlying mortgage loans, which payments include principal, interest, and prepayments.” (Citation omitted.) D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 26.01, p. 565; see also Hunt v. Alliance North American Government Income Trust, Inc., 159 F.3d 723, 731 (2d Cir. 1998). The plaintiff claims that the holders of these securities are the beneficiaries of the trust. We need not reach this issue, however, because, as we explain in the text of this opinion, the defendant’s argument to the contrary is inadequately briefed.


source: Caselaw Access Project

author: LAV1NE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PRISCILLA C. DICKMAN
    (AC 29995)
    Lavine, Alvord and West, Js.

      Argued November 10, 2009
    officially released March 2, 2010

      Norman A. Pattis, with whom, on the brief, were Stephen H. Solomson and Jessica M. Santos, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and Michael J. Sullivan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAV1NE, J.

This appeal concerns the alteration of Probate Court documents that were submitted to an insurance carrier with respect to a claim filed on behalf of a person for whom a conservator had been appointed. The defendant, Priscilla C. Dickman, appeals from the judgment of conviction, rendered after a jury trial, of forgery in the third degree in violation of General Statutes § 53a-140. On appeal, the defendant claims that the court erred by (1) denying her motion for a judgment of acquittal because there was insufficient evidence pursuant to which the jury could have found her guilty, (2) failing to provide a definition for the terms used in § 53a-140 and (3) imposing her sentence in an illegal manner. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1999, the Probate Court for the district of Manchester appointed the defendant’s husband, William B. Dickman, conservator of the estate and person of his brother, Donald Dickman. William Dickman sought the appointment to enable him to apply for social security disability benefits for Donald Dickman. Donald Dickman had opposed the appointment of a conservator, and, approximately one year after the appointment had been made, left Connecticut to reside in California.

On or about November 6, 2003, Donald Dickman, as a pedestrian, was injured when a motor vehicle struck him. He was treated at a hospital in California and incurred medical expenses. On June 25, 2004, either Donald Dickman or William Dickman filed a claim with Allstate Insurance Company (Allstate), the insurer of the motorist who struck Donald Dickman. The defendant contacted Allstate with respect to the claim on June 28, 2004. Pursuant to its policy, Allstate required the defendant to provide authorization to speak with her on behalf of Donald Dickman. Allstate accepts Probate Court documents as proof of such authorization.

On July 8, 2004, the defendant spoke with an Allstate representative and became frustrated when she was not able to obtain information about Donald Dickman’s claim. She threatened to get an attorney to intervene on her behalf. Later that day, the defendant sent Allstate a facsimile of a probate form, which she later admitted she had altered by adding her name in addition to that of William Dickman in the box entitled “fiduciary” and also altered the box indicating position of trust from conservator to conservators. An Allstate representative responded to the defendant that the altered Probate Court document was insufficient to authorize the representative to speak to her about Donald Dickman’s claim and told her that she would have to secure a letter of designation. On July 27, 2004, the defendant sent such a letter to Allstate via facsimile. The letter, purporting to have been signed by Donald Dickman, authorized the defendant and William Dickman to handle Donald Dickman’s claim with Allstate. According to the defendant, she had been able to contact Donald Dickman in California because she knew he was staying with a person known only as Michelle and informed him of her immediate need of the designation letter. Although the designation letter was dated July 25,2004, the defendant claimed that she had received it prior to that date. Given the Probate Court document and the designation letter, an Allstate representative spoke with the defendant about Donald Dickman’s claim.

On August 4,2004, the defendant informed an Allstate representative that she had obtained Donald Dickman’s medical bills, which totaled $4500, excluding the cost of an ambulance. The defendant also informed Allstate that Donald Dickman continued to experience pain as a result of the accident and that he had to fly back to Connecticut to obtain treatment. The defendant wanted Allstate to consider all of this information in settling Donald Dickman’s claim.

Allstate received a copy of Donald Dickman’s medical bill from South Coast Medical Center in Laguna Beach, California, on August 11, 2004. The numeral 1 had been added in front of two of the medical charges thereon, which had the effect of increasing the amount of the bill by $2000. The claims adjuster became suspicious of the alteration and referred the case to Allstate’s special investigations unit. As a matter of course, any time Allstate believes that it has been presented with a fraudulent claim, it enters a report with the National Insurance Crime Bureau. During the course of another insurance investigation, inspectors from the office of the chief state’s attorney discovered Allstate’s report regarding Donald Dickman’s claim and commenced an investigation. The defendant subsequently was arrested.

Inspector Keith I. McCurdy of the office of the chief state’s attorney testified at trial. According to McCurdy, after the defendant was arrested and had waived her rights pursuant to Miranda, she said that she was innocent of all charges, she was the conservator for Donald Dickman and that she was not worried about the matter because her attorney had handled it for her and had sent the documents to Allstate via facsimile. During closing argument, defense counsel conceded that the defendant had altered the Probate Court document but argued that the defendant did not intend to defraud Allstate.

The jury found the defendant guilty of one count of forgery in the third degree, and not guilty of a second count of forgery in the third degree and attempt to commit larceny in the third degree. Following her sentencing, the defendant filed this appeal.

I

The defendant first claims that the court improperly denied her motion for a judgment of acquittal. We do not agree.

The defendant was tried on a three count amended long form information. The state alleged, in count one, that on July 8, 2004, the defendant sent Allstate an altered Probate Court document in violation of § 53a-140; in count two, that on August 11,2004, the defendant sent Allstate an altered bill for medical services provided to Donald Dickman in violation of § 53a-140; and in count three, that on August 11, 2004, the defendant sent Allstate an altered bill for medical services provided to Donald Dickman in violation of General Statutes §§ 53a-49 (a) (2) and 53a-124 (a) (2), attempt to commit larceny in the third degree. At the conclusion of the state’s case-in-chief, the defendant asked the court to render a judgment of acquittal as to all counts. The defendant claimed as to the first count that there was no evidence of intent to defraud, injure or deceive Allstate and that as to the second and third counts there was evidence that Donald Dickman sent the medical bill to Allstate. The court denied the motion for a judgment of acquittal, and the defendant thereafter presented her case.

A

On appeal, we are concerned only with the defendant’s conviction of forgery in the third degree as alleged in count one the long form information. General Statutes § 53a-140 (a) provides: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.” To be found guilty of forgery in the third degree, the accused must have intended to do one of three things: defraud, deceive or injure.

During oral argument, the defendant conceded that she altered the Probate Court document she sent to Allstate but argued that she did not intend to defraud Allstate. For purposes of this opinion, we assume that the defendant did not intend to defraud Allstate. The question, then, is whether there was sufficient evidence by which the jury reasonably could have found that the defendant intended to deceive or injure Allstate. As there is no evidence that Allstate was injured by the defendant’s actions, we are left to decide whether there was sufficient evidence by which the jury reasonably could have found beyond a reasonable doubt that the defendant intended to deceive Allstate.* ***

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Bivrell, 116 Conn. App. 556, 559, 976 A.2d 60 (2009).

Moreover, “we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005).

“It is well settled . . . that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13, 35-36, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). “Intent may be inferred from circumstantial evidence such as the events leading to and immediately following the incident, and the jury may infer that the defendant intended the natural consequences of his actions.” State v. McRae, 118 Conn. App. 315, 320, 983 A.2d 286 (2009).

The evidence before the jury demonstrates that the defendant sought to speak to an Allstate representative about a claim made on behalf of Donald Dickman. The defendant learned that, pursuant to an Allstate policy, an Allstate representative would not discuss the claim with a third party who was not authorized to speak for Donald Dickman. The defendant was frustrated by the policy and threatened the claims adjuster with having to deal with an attorney. Thereafter, the defendant sent Allstate a probate form that she had altered by adding her name as a conservator for Donald Dickman. The jury reasonably could have concluded that the defendant sent the altered probate form to Allstate to circumvent its policy of speaking only to third parties authorized to speak on behalf of claimants. The jury reasonably could have inferred that the defendant intended Allstate to believe that she was Donald Dick-man’s conservator, and, thus, an Allstate representative could discuss his claim with her. Because the defendant was not Donald Dickman’s conservator, the jury could have concluded, on the basis of the circumstantial evidence, that the defendant intended to deceive Allstate by causing it to believe that she was Donald Dick-man’s conservator.

The defendant contends that Allstate did not rely on the forged Probate Court form, as it told the defendant to provide a designation letter. The defendant reasons that because Allstate did not rely on the forged Probate Court document, it was not deceived. Section 53a-140 does not address the behavior of a victim of forgery in the third degree. The statute sets forth the elements of the crime, including the intent of the accused. Whether an accused, in this case the defendant, was successful in an attempt to deceive is not the issue. The defendant further contends that her intent only was to help Donald Dickman. Again, her argument misses the mark. Even if she sought to help Donald Dickman, the jury found that she attempted to help him by deceiving Allstate as to her status as conservator.

B

The defendant also claims that her conviction of the charge alleged in count one of the amended long form information is inconsistent with the jury’s finding her not guilty of the charge alleged in count two of the long form information, which also alleged forgery in the third degree. We note first that the construction of pleadings is a question of law, for which we engage the plenary standard of review. Miller v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003).

On the basis of our review of the long form information, we conclude that the jury’s verdicts with regard to counts one and two are not inconsistent. The allegations in counts one and two concern the defendant’s behavior on two different, days as it relates to two different documents. The defendant admitted that she altered the Probate Court document before sending it to Allstate. As to the medical bill, the defendant testified that Donald Dickman, not she, altered it. On the basis of the evidence and its credibility determinations, the jury reasonably could have concluded that the defendant was not culpable of the charges in the second count. The verdicts, therefore, were not inconsistent, and the court did not improperly deny the defendant’s motion for a judgment of acquittal.

n

The defendant’s second claim is that the court improperly charged the jury by failing to give, sua sponte, an instruction on the “legal definition” of the words deceive, defraud and injure. The defendant cannot prevail.

The following facts are relevant to the defendant’s claim. As previously stated, the defendant was charged with forgery in the third degree in violation of § 53a-140. Section 53a-140 (a) provides: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.” When giving the relevant portion of its charge, the court read the statute and then stated that for the jury “to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. ... All right, the second element that the state must prove is that the defendant had the specific intent to deceive, defraud or injure another person. A person acts intentionally with respect to a result, when her conscious objective is to cause such result. Intent relates to the condition of mind of the person who commits the act, his or her purpose in doing it. What the defendant intended is a question of fact for you to determine.” Neither the state nor the defendant took an exception to the charge as given. The defendant also did not ask the court to define the words deceive, defraud or injure.

During its deliberations, the jury asked for a dictionary. The court informed the jury that it could not have a dictionary but that if the jury had a specific question, needed a reinstruction or the definition of a specific word, the court would do its best to answer the question. A member of the jury responded: “In particular, the question we’re having is on the first count, the third sentence down of the charges, start with the word injure, so if I read them from the beginning, ‘[I]t charges that on or about July [8], 2004, in the town of Coventry, state of Connecticut, is said [defendant] with intent to defraud, deceive and injure Allstate . . . .’ We are questioning the word injure ... if that can be clarified.” The court then excused the jury and conferred with counsel. The court stated that its inclination was to instruct the jury that injure covers a wide variety of possibilities, including economic injury, physical injury or any type of injury to a party. Counsel agreed to the supplemental instruction.

When the jury returned to the courtroom, the court stated: “All right, in response to your question as to the definition of injury, injury with respect to the complainant or victim, here, of Allstate . . . would include economic injury, physical injury or any other kind of injury to the company. I just want to bring to your attention that even though the amended, long form information says with intent to defraud, deceive and injure, if you look at my instructions to you, I do not use the conjunctive in defraud, deceive and injure. Rather, you need only find that with intent to defraud, deceive or injure Allstate . . . Company, she committed several acts. So, the long form information is written in the conjunctive; I have charged you in the disjunctive, and you should follow my charge rather than the long form information.” Neither counsel took an exception to the supplemental charge.

On appeal, the defendant claims that the court failed to provide the jury sua sponte with the “legal definition” of the words defraud, deceive and injure. The defendant failed to preserve this claim at trial and seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. “[T]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Wright, 114 Conn. App. 448, 458, 969 A.2d 827 (2009).

The claim meets the first prong, as the record is adequate for our review. Whether the defendant’s claim meets the second Golding prong requires analysis. The defendant claims that the court failed to give the “legal definition” of defraud, deceive or injure. Our research has not revealed the use of the term “legal definition” in our decisional law. Nonetheless, “the failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant’s due process rights implicating the fairness of [the] trial.” (Internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989). The question is what is an essential element of a crime. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Under § 53a-140, the accused may be convicted only upon proof beyond a reasonable doubt of an intent to deceive, defraud or injure. “[T]he failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotation marks omitted.) State v. Anderson, supra, 37. The defendant’s claim therefore is of constitutional magnitude, and we will afford it review.

“It is well settled that jury instructions are to be reviewed in their entirety. . . . When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement .... Individual instructions also are not to be judged in artificial isolation .... Instead [t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Makee R, 117 Conn. App. 191, 198, 978 A.2d 549, cert. granted on other grounds, 294 Conn. 912, 983 A.2d 275 (2009).

The term “statutory definition” is used when the legislature has seen fit to define the elements of a criminal offense. See State v. Brown, 259 Conn. 799, 808, 792 A.2d 86 (2002) (General Statutes § 53a-3 definition of firearm). Our General Statutes, however, do not define the words defraud, deceive and injure with regard to § 53a-140. Although it is true that an improper instruction on an element of a crime is of constitutional magnitude; id., 806; “[i]t is well established that, when detennining the meaning of a word, it is appropriate to look to the common understanding of the term as expressed in a dictionary. . . . This precept, however, pertains primarily to the situation where no statutory definition is available.” (Citations omitted.) State v. Spillane, 255 Conn. 746, 755, 770 A.2d 898 (2001).

The defendant relies on State v. Brown, supra, 259 Conn. 799, to support her claim. Brown, however, explains why it is not reasonably possible that the court’s charge misled the jury. Brown concerns a sentence enhancement statute, General Statutes § 53-202k, which provides in relevant part that “[a]ny person who commits any class A, B or C felony and in the commission of such felony uses . . . any firearm, as defined in section 53a-3 . . . shall be imprisoned . . . .” (Emphasis added.) When it instructed the jury, the court in Brown failed to provide the statutory definition of a firearm. Our Supreme Court concluded, however, that a clear constitutional violation that deprived the defendant of a fair trial clearly did not exist, reasoning that “[s]pecific words in a statute need not be defined if they are being used and understood in their ordinary meaning. . . . [T]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess.” (Citations omitted; internal quotation marks omitted.) State v. Brown, supra, 808. “[T]he dictionary definition [of firearm] that we presume was applied by the jury and the definition found in § 53a-3 (19) are essentially the same. Under the circumstances, no constitutional violation could have resulted from the trial court’s failure to give the statutory definition to the jury.” Id., 809.

When charging the jury, the court adhered to the precept that “[t]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess.” (Internal quotation marks omitted.) Id., 808; see also State v. Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977) (“[t]he court did not err in failing to define ‘maintain,’ ‘assist,’ and ‘custodian,’ all terms which were used and might be understood in their ordinary meaning”). Moreover, when the jury had a question regarding the meaning of the word injure, the court provided a supplemental instruction, a procedure well within our rules of practice. The jury did not seek any additional explanation concerning the meanings of defraud or deceive.

In her brief, the defendant cites State v. Yurch, 37 Conn. App. 72, 80-81, 654 A.2d 1246, appeal dismissed, 235 Conn. 469, 667 A.2d 797 (1995), among other authorities, for the definition of deceive, as well as the Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/deceive (last visited February 2, 2010), for the definitions of defraud, deceive and injure. The defendant argues that Yurch and the dictionary demonstrate that there necessarily is not one commonly used meaning for the terms at issue in this case. The defendant’s position is unpersuasive. Many words have varying shades of meaning, depending on the context in which they are used, but, the question presented is whether it was reasonably possible that the jury, using its common sense and life experience, was misled by the court’s instruction. We are unwilling to conclude that the jury lacked understanding of words so frequently used in common parlance.

Moreover, the defendant fails to explain how the jury was misled by the court’s instruction. The jury knew how to ask for assistance if it did not know the definition of one of the words in the statute. The defendant, therefore, clearly was not denied a constitutional right or a fair trial due to the court’s failure to define defraud, deceive or injure in its charge.

Ill

The defendant’s third claim is that the court imposed her sentence in an illegal manner by considering criminal charges then pending against the defendant in another geographical area court and the charges of which she was found not guilty in this case. We do not agree.

The court sentenced the defendant to six months in the custody of the commissioner of correction, execution suspended after ninety days, and two years of probation. At the time of sentencing, the court asked the prosecutor about charges pending against the defendant in geographical area number fourteen. The prosecutor responded that those charges involved forgery of a physician’s return to work slips in a workers’ compensation matter. The defendant then made a lengthy statement to the court. Thereafter the court made the following statement.

“Although the jury acquitted you of the other two charges, the court does believe that you faxed the . . . medical bill ... to Allstate, despite your testimony to the contrary, and, I think, that [the prosecutor’s] argument that you were tripped up by the timing is very indicative of the fact that you did the faxing and not your brother-in-law. I also don’t believe your claim that you faxed defendant’s exhibit one to Allstate, and that’s the two page bill. The transmission line on defendant’s exhibit one shows that it was faxed to your home phone or fax number, not to Allstate. And there is no creditable evidence in this case that shows that you faxed it to Allstate. . . .

“The court further believes that the conduct that you engaged in, in count one, was part of a larger scheme on your part to defraud Allstate of $2000. Again, of course, the jury did not convict you of those counts, but I think that from the court’s point of view, the great balance of your testimony here, with respect to the material facts, is not creditable. Based upon what the court heard, as far as the evidence is concerned, I do believe that a period of incarceration is appropriate here. I don’t know anything about the workers’ comp[ensation] case in Hartford or the forgery case in Hartford, whether you will prevail or won’t prevail. I am not including that as part of my consideration here, but I do believe that a period of incarceration is warranted for the activity that occurred in this matter in Tolland alone.” (Emphasis added.) The court then sentenced the defendant.

Practice Book § 43-22 provides in relevant part: “The judicial authority may at any time correct ... a sentence imposed in an illegal manner . . . .” “Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates defendant’s right ... to be sentenced by a judge relying on accurate information or considerations solely in the record . . . .” (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

“[A] sentence imposed . . . within statutory limits, is generally not subject to review. ... It has long been the practice in this state to permit the sentencing court to exercise a wide discretion as to the sources and types of information used to assist it in determining the sentence to be imposed within the limits fixed by law. . . . Such practice facilitates the penal philosophy that sentences ought to be individualized to fit not only the crime but also the criminal. . . . [BJefore making a [sentencing] determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” (Citations omitted; internal quotation marks omitted.) Id., 445.

A

The defendant claims that the court improperly considered charges that were pending against her in Hartford. The court, however, specifically stated that it had not taken those charges into consideration in sentencing the defendant. We have no reason to doubt the court’s representation, and the defendant has provided none. The term of the defendant’s sentence is within the statutory limits of the offense for which the defendant was convicted. We, therefore, cannot conclude that the court imposed the defendant’s sentence in an improper manner.

B

The defendant also claims that the manner in which the court imposed her sentence was illegal because the court considered the charges for which the jury found the defendant not guilty. The defendant’s claim lacks merit.

“Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information.” (Internal quotation marks omitted.) State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). “To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt . . . evidence of crimes for which the defendant was indicted but neither tried nor convicted . . . .” (Citations omitted.) Id., 126. “A sentencing court may legitimately consider the evidence heard at trial . . . .” State v. McNellis, supra, 15 Conn. App. 450. In this matter, when sentencing the defendant, the court considered evidence that was presented at trial. We, therefore, conclude that the court did not impose the defendant’s sentence in an illegal manner.

The judgment is affirmed.

In this opinion the other judges concurred.

      The defendant altered a copy of form PC-441 Rev. 6/01, Fiduciary’s Periodic or Final Account, on which William Dickman had submitted an accounting for the year May, 2002, to May, 2003.

       William Dickman testified, however, that his brother, Donald Dickman, did not fly in airplanes.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The documents sent to Allstate via facsimile bore the defendant’s home facsimile number.

       Defense counsel stated to the jury, in part: “So, [the defendant] had this old probate certificate, and she added her name because Donald [Dickman] had always authorized her to act on his behalf, as had William [Dickman]. But certainly there was no intent to defraud Allstate, and the judge will instruct you shortly that a key element in this offense of forgery is an intent to defraud the other party or person, in this case Allstate.”

       Within her first claim, the defendant makes reference to her second claim, which is that the court improperly charged the jury. See part H of this opinion. The defendant asserts that the jury was confused as to the meaning of injure. Because we conclude that there was sufficient evidence by which the jury reasonably could have found that the defendant intended to deceive Allstate, we do not address this aspect of the defendant’s argument in her first claim.

       “Because the waiver rule has been deemed constitutional; State v. Perkins, 271 Conn. 218, 228-45, 856 A.2d 917 (2004); we review [a] defendant’s insufficiency of the evidence claim by examining all of the evidence before the jury. It is the propriety of the jury’s verdict of guilty, not the propriety of the court’s denial of a motion for a judgment of acquittal after the state’s case-in-chief has been concluded, that we review.” (Internal quotation marks omitted.) State v. Bereis, 114 Conn. App. 554, 558 n.4, 970 A.2d 768, cert. denied, 293 Conn. 902, 975 A.2d 1278 (2009).

       Allstate determined that Donald Dickman was responsible for the pedestrian-motor vehicle accident and made no payment to him.

       After oral argument in this court, we sua sponte ordered the parties to submit supplemental briefs to address the following issues: (1) Whether the issue of logical or legal inconsistency of verdicts was raised in the defendant’s brief filed on November 24, 2008; and (2) if so, what effect, if any does the Supreme Court decision in State v. Arroyo, 292 Conn. 558, 973 A.2d 1254 (2009), have on the present case. We have assumed, without deciding, that the defendant raised the issue of inconsistent verdicts in her initial brief and that the state responded to the argument in its brief. Because we conclude that the verdicts were not inconsistent, we need not address the impact of Arroyo.

       The jury had a copy of the court’s instructions while it was deliberating.

       The court asked counsel whether there were any exceptions to its charge. Defense counsel stated, “no exceptions, Your Honor.” On appeal, the state claims that the defendant waived her right to challenge on appeal the court’s charge to the jury. Although we decline to resolve the defendant’s claim on the basis of waiver, we take this opportunity to remind both trial and appellate counsel that the defense cannot claim error on appeal because trial strategy failed. See State v. Beaulieu, 118 Conn. App. 1, 9, 982 A.2d 245, cert. denied, 294 Conn. 921, 984 A.2d 69 (2009).


author: ALVORD, J.

text:
    PILOT’S POINT MARINA, INC. v. TOWN OF WESTBROOK
    (AC 30679)
    Flynn, C. J., and Alvord and Foil, Js.
    Argued December 1, 2009
    officially released March 2, 2010

      John S. Bennet, for the appellant (defendant).

      David L. Weiss, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, the town of Westbrook, appeals from the judgment of the trial court reducing the property tax assessment levied against the plaintiff, Pilot’s Point Marina, Inc. The defendant claims that the court improperly determined the fair market value of the property. We agree in part.

The subject property, one of New England’s largest marinas, is located at 63 Pilot’s Point Drive in West-brook. All parties agree that the property is being used for its highest and best use. It derives income from slip rentals, summer and winter boat storage, and the rental of industrial, commercial and residential building space. On October 1, 2006, the assessor for the town of West-brook valued the property at $19 million. The property value and corresponding assessment were affirmed by the Westbrook board of assessment appeals, and the plaintiff applied to the Superior Court for a reduction pursuant to General Statutes § 12-117a. As required, the court reviewed the plaintiffs claim de novo. See Aetna Life Ins. Co. v. Middletown, 77 Conn. App. 21, 26, 822 A.2d 330, cert. denied, 265 Conn. 901, 829 A.2d 419 (2003). It heard testimony and received documentary evidence from both parties’ appraisers and rendered judgment in favor of the plaintiff. Using the income capitalization method outlined in General Statutes § 12-63b (a), the court found the fair market value of the property to be $17,127,452. On appeal, the defendant claims that the effective gross income (EGI) of the property was calculated improperly, and, as a result, its fair market value should be increased.

Our review of the court’s determination in a tax appeal is limited. “[W]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine [if] it is legally correct and factually supported.” (Internal quotation marks omitted.) Ress v. Suffield, 80 Conn. App. 630, 632, 836 A.2d 475 (2003), cert. denied, 267 Conn. 920, 841 A.2d 1191 (2004). We will reverse the decision only if it is clearly erroneous. Id. “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.” (Internal quotation marks omitted.) Id.

The defendant first claims that the court improperly failed to include the income generated by the property through summer boat storage in its EGI calculation. We agree. A careful review of the court’s decision indicates that although it determined that the property generated $1,611,042 through winter and summer boat storage, it failed to include $102,192 of summer storage income in its final EGI calculation. The court articulated its omission by explaining that it was aware of the income generated through summer storage but chose to disregard it because most marinas do not offer summer storage, and, therefore, the summer storage income realized by the plaintiff was not representative of the market.

Pursuant to § 12-63b (b), the court is required to consider both market rent and actual rent when determining fair market value using the income capitalization method. See also First Bethel Associates v. Bethel, 231 Conn. 731, 740, 651 A.2d 1279 (1995) (“the statute requires that, in determining a property’s ‘market rent,’ the assessor and, therefore, the court, in determining the fair market value of the property, must consider both [1] net rent for comparable properties, and [2] the net rent derived from any existing leases on the property” [emphasis in original]). Moreover, “if the property is devoted to the use for which it is best adapted and is in a condition to produce or is producing its maximum income, the actual rental is a very important element in ascertaining its value.” Federated Dept. Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 83, 291 A.2d 715 (1971). Consequently, in light of the actual income generated by the property through summer boat storage, the court’s failure to include any summer storage income in its final EGI calculation was improper.

The defendant next claims that the court improperly accepted the plaintiffs appraisal methodology and failed to consider nearly 9000 square feet of rentable building space when it calculated landside EGI. We disagree. “The process of valuation at best is a matter of approximation.” (Internal quotation marks omitted.) First Bethel Associates v. Bethel, supra, 231 Conn. 738. To ascertain the true and actual value of the taxpayer’s property, the court must weigh “the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and [its] own general knowledge of the elements going to establish value . . . .” (Internal quotation marks omitted.) Aetna Life Ins. Co. v. Middletown, supra, 77 Conn. App. 26. In doing so, it has “the right to accept so much of the expert testimony and the recognized appraisal methods which are employed as it finds applicable.” (Internal quotation marks omitted.) First Bethel Associates v. Bethel, supra, 741.

A review of the record indicates that the court found credible and chose to accept the calculation of landside EGI put forward by the plaintiffs appraiser. Although the plaintiffs appraiser did testify that his report omitted some square footage, the defendant did not submit any evidence to prove that the omitted square footage had any effect on the overall value of the property. Moreover, the defendant’s appraiser testified that the actual square footage used by both parties to determine landside EGI was “pretty much identical.” Neither party attributed income to 106,000 square feet of building space as now urged by the defendant. Accordingly, the record contains support for the court’s finding.

Although we conclude that the trial court properly accepted the plaintiffs calculation of landside EGI, we conclude that the trial court’s failure to include summer storage income in its final EGI calculation was improper and that the matter must be remanded for a redetermi-nation of the fair market value of the property.

The judgment is reversed and the case is remanded for a redetermination of the true and actual value of the property for assessment purposes consistent with this opinion.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 12-62a (b), the assessment represents 70 percent of the fair market value of the property.

         General Statutes § 12-117a provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application . . . with respect to the assessment list ... to the superior court for the judicial district in which such town or city is situated .... The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . .”

       General Statutes § 12-63b (a) provides in relevant part: “The assessor or board of assessors in any town, at any time, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income . . . shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property. . . .”

       To determine the fair market value using the income capitalization method, the court calculated the effective gross income of the property, subtracted the associated operating expenses and divided the result by the capitalization rate.
      Both parties agreed that the income capitalization method was the only viable approach for calculating the property’s value. They also agreed to operating expenses of $3,490,363 and a capitalization rate of 11.5 percent. Consequently, the only point of contention was the effective gross income generated by the property.

       General Statutes § 12-63b (b) provides in relevant part: “For purposes oí [the income capitalization method] and, generally, in its use as a factor in any appraisal with respect to real property used primarily for the purpose of producing rental income, the term ‘market rent’ means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.”

       The plaintiffs counter argument that § 12-63b only applies to assessors and is not binding on the court is without merit.

       The court calculated total EGI of the property by determining how much income it produced from “waterside” and “landside” operations. To determine waterside EGI, the court considered income generated from slip rentals and summer and winter storage. To determine landside EGI, it considered income generated though rentable building space.

       The defendant’s appraiser attributed income to a total of 95,102 square feet of building space, and the plaintiffs appraiser attributed income to a total of 91,053 square feet of building space. To the extent that the defendant claims for the first time on appeal that 106,000 square feet of building space generates income for the property, its claim is unreviewable. See Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 797-98, 967 A.2d 1 (2009).


author: DiPENTIMA, J.

text:
    ALBERT LOPEZ v. COMMISSIONER OF CORRECTION
    (AC 30201)
    DiPentima, Robinson and Sullivan, Js.
    Argued December 2, 2009
    officially released March 2, 2010

      Rosemarie T. Weber, special public defender, for the appellant (petitioner).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, Albert Lopez, appeals from the judgment of the habeas court following its denial of his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied certification to appeal and improperly rejected his claim that his trial counsel had rendered ineffective assistance. Specifically, the petitioner asserts that his trial counsel rendered ineffective assistance by (1) failing to inform the trial court of the petitioner’s hearing impairment and failing to take steps to allow the petitioner to hear fully the testimony and assist in his defense and (2) failing to introduce the petitioner’s coat as evidence of misidentification. We dismiss the appeal.

A jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a), and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b. On October 6, 2004, the court imposed a total effective sentence of eleven years incarceration followed by a period of probation. The petitioner appealed his judgment of conviction to this court, and we affirmed the judgment of the trial court. State v. Lopez, 93 Conn. App. 257, 889 A.2d 254 (2006), aff'd, 281 Conn. 797, 917 A.2d 949 (2007).

The facts and procedural history surrounding the underlying conviction were set forth in the decision of this court disposing of the criminal appeal. “At approximately 10 p.m. on December 9, 2003, the victim, Cecile Lawrence, a University of Bridgeport security officer, was walking to her place of employment via Park Avenue. The weather was cold, and the victim wore a winter coat over her uniform. As she crossed Atlantic Street, she heard someone approaching from behind. She turned and saw two men, whom she subsequently identified as [Clifton E.] Kennedy and [the petitioner]. Kennedy ordered the victim to give him her money or he would ‘do [her].’ The victim described Kennedy as being very upset. He repeatedly threatened her by stating, ‘[G]ive me your money or I’ll do you right here.’ The victim told Kennedy that she had no money, but he persisted, stating that he knew that she had money. The victim was afraid that she would be shot. She perceived an odor of alcohol on Kennedy and [the petitioner] and believed that both men had been drinking.

“The victim was wearing a backpack. Kennedy pulled on the backpack forcing the shoulder straps to draw the victim’s arms behind her. This permitted [the petitioner] to unzip the victim’s coat, rummage through her outer and inner coat pockets and the pocket of her shirt. [The petitioner] removed the victim’s keys, reading glasses and identification. Kennedy continued to threaten the victim by stating that he would ‘do [her]’ then if she did not give them her money. [The petitioner] informed him, however, that the victim did not have any money and told Kennedy not to ‘do her.’ Kennedy and [the petitioner] took the victim’s backpack with its contents and told the victim to walk away and not to look back. As the victim walked away, Kennedy again threatened her, stating, ‘Do not turn around or I’ll do you.’

“The victim walked to the campus security office, which was about one and one-half blocks away. She met her supervisor, Jermaine Alston, who was operating a campus security vehicle, and informed him that she had been mugged. Alston told the victim to get into the vehicle, and they drove around the area looking for the perpetrators of the robbery. The victim described the perpetrators as a black man and a Hispanic man. Alston and the victim saw two men going through a backpack on Atlantic Street. The victim recognized them as the men who had robbed her. Alston stopped the vehicle and got out. Kennedy ran away. [The petitioner] began to walk away, refusing to answer Alston’s question about where he had gotten the backpack. Alston scuffled with [the petitioner] and subdued him until the police arrived and took [the petitioner] into custody. Kennedy was apprehended by the police a few blocks from the scene.

“Most of the victim’s belongings were recovered, except her cellular telephone, which was valued at approximately $200. After Kennedy and [the petitioner] were taken into custody, the victim identified them as the men who had robbed her. She also identified them in court. Alston identified [the petitioner] in court, as well, but he could not identify Kennedy.

“Both [Kennedy and the petitioner] were charged with robbery in the first degree, unlawful restraint in the second degree and larceny in the sixth degree. Their cases were consolidated for trial on June 16, 2004. The jury returned verdicts of guilty on October 6, 2004. [Kennedy and the petitioner each] received a total effective sentence of eleven years in the custody of the commissioner of correction and three years of probation.” Id., 260-61.

On April 18, 2008, the petitioner filed an amended petition for a writ of habeas corpus, claiming, inter alia, that his counsel was ineffective in failing to introduce the petitioner’s coat into evidence, failing to inform the court that he was hearing impaired and preventing him from assisting in his defense. On April 18, 2008, at the habeas trial, the court heard testimony from the petitioner and Lawrence. The petitioner submitted five exhibits, including the transcript of the underlying trial, and the respondent, the commissioner of correction, submitted two exhibits.

On July 2, 2008, the court denied the petition for a writ of habeas corpus and issued a memorandum of decision. Subsequently, on July 21, 2008, the court denied the petitioner’s petition for certification to appeal. This appeal followed.

We consider the petitioner’s claim that the habeas court improperly denied his petition for certification to appeal. The standard of review is well settled. When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “[I]f the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 674, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id. “We examine the petitioner’s underlying claim ... to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” Coney v. Commissioner of Correction, 117 Conn. App. 860, 865, 982 A.2d 220, cert. denied, 294 Conn. 924, 985 A.2d 1061 (2009).

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. ... A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Citation omitted; internal quotation marks omitted.) Id.

To demonstrate prejudice, a petitioner must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006).

With this standard in mind, we conclude that the habeas court correctly determined that the petitioner failed to demonstrate that his defense was prejudiced by his trial counsel’s failure to inform the trial court of the petitioner’s hearing impairment and to introduce the coat into evidence. We further conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

I

First, the petitioner asserts that his counsel provided ineffective assistance by failing to inform the trial court of the petitioner’s hearing impairment and failing to take steps to allow him to hear fully the testimony in order to assist in his defense. We conclude that the record is inadequate to review the petitioner’s claim on this issue.

The respondent claims that the record is inadequate to show that the petitioner was deprived of a fair trial because no factual finding was made that the petitioner was hearing impaired at the time of his criminal trial. “We cannot render a decision without first having specific findings of fact to determine the basis of the court’s ruling.” (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn. App. 300, 307, 950 A.2d 619 (2008). The habeas court did not address the specific factual findings underlying its conclusion in the memorandum of decision, and the petitioner failed to file a motion for articulation. See Practice Book § 66-5. Because the court’s memorandum of decision addresses the issue of prejudice without first making any factual findings or analysis on the factual issue presented, and the petitioner did not file a motion for articulation, the record is inadequate. See Bowden v. Commissioner of Correction, 93 Conn. App. 333, 342, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). “[I]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Wright v. Commissioner of Correction, 106 Conn. App. 342, 345, 942 A.2d 438, cert. denied, 289 Conn. 901, 957 A.2d 875 (2008). Accordingly, we cannot review the petitioner’s claim.

II

Next, the petitioner alleges that his counsel provided ineffective assistance by failing to introduce the coat that the petitioner claimed he was wearing at the time of the crimes as evidence of misidentification. In its memorandum of decision, the habeas court found that the petitioner had offered no evidence other than his testimony that the coat presented at the habeas trial was actually the coat that he was wearing on the night of the robbery. The court determined that “the petitioner has failed to demonstrate prejudice because the jury would not likely have been swayed by the introduction of his coat into evidence. [Trial counsel] did elicit the discrepancies in the description of the petitioner’s coat in his examination of [Sergeant] Alston and Officers Christopher Stepniewski and Michael Fiumidinisi, to no avail. Kennedy . . . had also pursued this tack and sought to discredit witnesses by highlighting differences in the description of his coat among them. Kennedy also introduced his coat into evidence. This apparently was not enough to dissuade the jury from convicting Kennedy of the same charges as the petitioner, and Kennedy even had a marginally stronger claim of misidentification because he was apprehended somewhat farther away when Sergeant Alston was busy with the petitioner. Therefore, it is highly unlikely the jury would have found the petitioner’s coat persuasive enough to reach a different verdict.” Our review of the record supports the conclusion of the habeas court that the petitioner did not present any credible evidence demonstrating that his trial counsel’s failure to introduce the coat into evidence prejudiced the petitioner.

Therefore, upon our examination of the record, as well as the court’s resolution of the issues presented in the habeas petition, we are not persuaded that the court abused its discretion in denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       Attorney David Abbamonte, the public defender who represented the petitioner at the criminal trial, was deceased at the time of the habeas trial.

       The court determined that “[wjithout considering whether this amounts to deficient performance, the petitioner has failed to establish prejudice resulting from his attorney’s conduct. . . . [H]e did not identify at the habeas trial any specific input or assistance he would have been able to provide had he been able to hear all the testimony at trial.”