author: GRUENDEL, J.

text:
    SIRI A. KORSGREN v. SAMUEL H. JONES
    (AC 28021)
    Graendel, Beach and Borden, Js.

      Argued April 14
    officially released June 17, 2008

      Samuel H. Jones, pro se, the appellant (defendant).

      Leslie I. Jennings-Lax, with whom was Elizabeth Jennings-Lax, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The pro se defendant, Samuel H. Jones, appeals from the judgment of the trial court setting his child support obligation. He claims that the court (1) failed to file its decision in a timely manner pursuant to General Statutes § 51-183b, (2) abused its discretion in denying his motion for reargument, (3) improperly applied Lefebvre v. Lefebvre, 75 Conn. App. 662, 817 A.2d 750, cert. denied, 263 Conn. 921, 822 A.2d 243 (2003), (4) incorrectly found that his expenses had not increased substantially as a result of the shared parenting plan agreed to by the parties and (5) incorrectly found that no extraordinary disparity existed between the parties’ respective incomes. We affirm the judgment of the trial court.

The relevant facts are as follows. The defendant and the plaintiff, Siri A. Korsgren, married in 1999. On August 5,2000, their son was bom. Following the subsequent breakdown of their marriage, the parties entered into a separation agreement (agreement) that, after an uncontested hearing, the court incorporated into its judgment of dissolution. Pertinent to this appeal is § 3.2 of the agreement, which provides: “Commencing on the [defendant’s] commencement of employment, and retroactive to the date of commencement of employment, the [defendant] shall pay child support to the [plaintiff]. The parties shall attempt to agree on a reasonable child support payment in accordance with the then existing [c]hild [s]upport [guidelines, if any. In the event the parties are unable to reach an agreement with respect to said child support payment, this issue shall be referred to the Superior Court at Stamford, Connecticut for a binding determination. The parties agree that a contingent wage withholding order shall issue to secure said obligation. Said obligation to support the child shall cease when the child attains age eighteen (18), or if the child is still attending high school when he attains age eighteen, support shall continue until the child has completed his high school education or attained age nineteen (19), dies or is emancipated, whichever event shall first occur.” The court rendered judgment of dissolution on January 8, 2004. Neither party appealed from that judgment.

Pursuant to § 3.2 of the agreement, the defendant on August 31, 2004, filed a “motion to set child support— postjudgment.” Following a series of continuances, the court held a hearing on the motion on April 20, 2006. In its May 10, 2006 memorandum of decision, the court found that the defendant became employed as a teacher in August, 2004. Although there had been a temporary lapse of employment, the court found that the lapse was voluntary and applied the earning capacity principle to that time period in calculating the defendant’s child support obligation. The court noted that the defendant claimed that because he shared physical custody of the child, he was entitled to a deviation from the presumptive support amount under the child support guidelines. The court found that the arrangement between the parties, “although not fifty-fifty, is clearly a shared custody.” The court further found that the defendant’s expenses had not substantially increased and that the plaintiffs expenses had not substantially declined. It therefore concluded that a deviation from the guidelines was inappropriate. The court fixed child support at $110 per week and ordered him to pay an additional $22 per week until a calculated arrearage of $10,150 was paid in full.

On May 17, 2006, the defendant filed a motion for reargument of the court’s child support order, which the court denied without comment. On June 30, 2006, the defendant filed a motion for clarification of the court’s ruling on the motion for reargument, which the court also denied. On December 6, 2006, the defendant filed a motion for articulation. In its brief reply to that motion, the court stated that in applying § 46b-215a-3 (b) (6) (B) of the Regulations of Connecticut State Agencies, “[t]he evidence did not indicate that there was an ‘extraordinary disparity’ between the [parties’] net incomes.” This appeal followed.

Before considering the defendant’s specific claims, we first note the standard of review applicable in domestic relations matters. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in. domestic relations cases. . . .

“With respect to the factual predicates for modification of an alimony award, our standard of review is clear. This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken. . . . This court, of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. ... 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.” (Citations omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 516-17, 914 A.2d 1058 (2007).

I

The defendant first contends that the court failed to file its decision in a timely manner pursuant to § 51-183b. That claim requires little discussion. Section 51-183b provides in relevant part that “[a]ny judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. . . .’’In the present case, the court rendered judgment on the defendant’s motion to set child support on May 10, 2006, less than one month after the April 20, 2006 hearing thereon. It therefore complied with the mandate of § 51-183b.

II

The defendant next claims that the court abused its discretion in denying his motion for reargument. “We review claims that the court improperly denied a motion for reargument under the abuse of discretion standard. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Citation omitted; internal quotation marks omitted.) Murray v. Murray, 65 Conn. App. 90, 102, 781 A.2d 511, cert. denied, 258 Conn. 931, 783 A.2d 1029 (2001).

The defendant claims that the court abused its discretion in denying his motion for reargument because the court failed to consider § 46b-215a-3 (b) (6) (B) of the regulations. That argument is undermined by the court’s express reference to § 46b-215a-3 (b) (6) (B) and its corresponding finding in its articulation that “[t]he evidence did not indicate that there was an ‘extraordinary disparity’ between the [parties’] net incomes.” The court did not abuse its discretion in denying reargument.

Ill

The defendant also claims that the court improperly applied Lefebvre v. Lefebvre, supra, 75 Conn. App. 662. Specifically, he maintains that because Lefebvre “is not at all analogous to the facts in this case,” the court should not have “cit[ed] this case as an authority.” Because it presents a question of law, our review of the defendant’s claim is plenary. Thus, “[w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).

In Lefebvre, this court discussed deviations from the child support guidelines in the context of a claim of shared physical custody by the defendant father. We explained: “[T]he defendant is required to prove more than shared physical custody. The defendant is required to demonstrate a visitation schedule that exceeds the typical visitation rights, and the defendant would be required to prove that a deviation from the guidelines would be warranted. Section 46b-215a-3 (b) (6) (A) of the [Regulations . . . provides that a deviation is warranted only when the arrangement substantially increases or decreases a parent’s financial obligation.” (Emphasis in original.) Lefebvre v. Lefebvre, supra, 75 Conn. App. 669. In its memorandum of decision, the court here found that “[t]he evidence presented did not convince the court that a substantial reduction occurred in the plaintiffs expenses for the child. It must also be determined if a substantial increase in the defendant’s expenses for the child resulted from the shared custody. The court cannot conclude that the [defendant’s] expenses have substantially increased. The court concludes that a deviation is not appropriate.” It then provided a citation to Lefebvre in support thereof.

We conclude that the court properly relied on that precedent in considering the defendant’s claim that his shared physical custody justified a deviation from the child support guidelines. Lefebvre is one of few appellate decisions addressing such a claim. Furthermore, the fact that Lefebvre may be factually distinguishable from a given case does not negate the precedential value of its analysis of § 46b-215a-3 (b) (6) (A). Accordingly, the defendant’s claim fails.

IV

The defendant next argues that the court incorrectly found that his expenses had not increased substantially as a result of the shared parenting plan agreed to by the parties. We review that claim under the clearly erroneous standard. See Doody v. Doody, supra, 99 Conn. App. 516-17.

As this court emphasized in Lefebvre, § 46b-215a-3 (b) (6) (A) of the regulations provides that a deviation is warranted only when the shared parenting arrangement substantially increases or decreases a parent’s financial obligation. Lefebvre v. Lefebvre, supra, 75 Conn. App. 669. In the present case, the court reviewed financial affidavits submitted by both parties. The defendant’s November 14, 2003 financial affidavit indicated weekly expenses of $690, his October 27,2004 financial affidavit indicated weekly expenses of $991, and his May 19, 2005 financial affidavit indicated weekly expenses of $886. At the April 20, 2006 hearing on the motion to set child support postjudgment, the defendant submitted a financial affidavit indicating $928 in weekly expenses. In light of that evidence, the court reasonably could have concluded that the defendant’s expenses had not substantially increased.

The court also had before it the plaintiffs August 23, 2004 and May 5, 2005 financial affidavits, which listed weekly expenses of $1219 and $1301, respectively. In addition, the plaintiff testified that her January 8, 2004 financial affidavit that was filed with the court at the time of the uncontested hearing indicated weekly expenses of $1179. On that evidence, the court reasonably could have found that the plaintiffs expenses had not substantially decreased. As a result, the court did not abuse its discretion in concluding that a deviation from the guidelines was unwarranted under § 46b-215a-3 (b) (6) (A) of the regulations.

V

The defendant’s final claim is that the court incorrectly found that no extraordinary disparity existed between the parties’ respective incomes. Like the previous claim, we review it under the clearly erroneous standard.

Section 46b-215a-3 (b) (6) (B) of the regulations permits the trial court, at its discretion, to deviate from the guidelines when it finds an “extraordinary disparity” between the parents’ net incomes. See footnote 2. The defendant did not allege an extraordinary disparity in parental income either in his motion to set child support or at the April 20, 2006 hearing. Rather, he raised that issue for the first time in his motion for reargument. During the April 20,2006 hearing, the defendant claimed a deviation solely based on the shared custody. Nevertheless, in its response to the defendant’s motion for articulation, the court, referencing § 46b-215a-3 (b) (6) (B), found that “[t]he evidence did not indicate that there was an ‘extraordinary disparity’ between the [parties’] net incomes.”

By the regulation’s plain language, application of the “special circumstances” delineated in § 46b-215a-3 (b) (6) is left to the sound discretion of the trial court. It provides that in certain circumstances, “deviation from presumptive support amounts may be warranted for reasons of equity. ...” Section 46b-215a-3 (b) (6) (B) similarly provides in relevant part that “[w]hen the custodial parent has high income, resulting in an extraordinary disparity between the parents’ net incomes, it may be appropriate to deviate from presumptive support amounts . . . .”

The question of whether a disparity in income is extraordinary is an infrequent one in our decisional law. In Lusa v. Grunberg, 101 Conn. App. 739, 923 A.2d 795 (2007), the trial court found that the defendant’s net weekly income was $2715 while the plaintiffs was $62, a difference of approximately 97 percent. The court found that that difference constituted an extraordinary disparity. Id., 748. Likewise, in Misthopoulos v. Misthopoulos, Superior Court, judicial district of Middlesex, Docket No. FA-04-4000976-S (July 25, 2006), the court found that, in the year preceding the dissolution, the defendant earned $753,014 while the plaintiff earned roughly $25,000 in that period, a difference of more than 96 percent. Because the plaintiff at the time of dissolution had virtually no weekly income while the defendant earned “well in excess of $5000 per week,” the court found an extraordinary disparity between the parties’ incomes. The court in Maturo v. Maturo, Superior Court, judicial district of Middlesex, Docket No. FA-04-0198618-S (June 12, 2006), reached the same result where the plaintiff was a stay at home mother and the defendant earned well in excess of $5000 per week. Although it did not discuss specific, net income figures, the court in Lavoie v. Lavoie, Superior Court, judicial district of Hartford, Docket No. FA-04-4004268-S (September 20, 2007), found an extraordinary disparity where the defendant was “able to support the parties’ two children on her income” while the plaintiff earned “considerably less and is just surviving on that.”

The financial affidavits before the court in the present case indicate the following. The plaintiffs net weekly income was $1115.93 as of August 23,2004, and $1191.33 as of March 5, 2005. The defendant’s net weekly income was $739 as of October 27, 2004. A handwritten stipulation agreed to by the parties and introduced into evidence at the April 20, 2006 hearing states that the defendant’s net weekly income at that time was $744. Thus, the difference between the respective net weekly incomes of the parties was approximately 38 percent. Although not insignificant, that disparity is far less than that deemed extraordinary in the aforementioned cases. Viewing the evidence before the court in light of those decisions, we cannot say that the court’s finding that the disparity between the parties’ incomes was not extraordinary is clearly erroneous. .Indulging every reasonable presumption in favor of the court’s ruling, we conclude that the court did not abuse its discretion in declining to deviate from the guidelines pursuant to § 46b-215a-3 (b) (6) (B).

The judgment is affirmed..

In this opinion the other judges concurred.

       The defendant also claims, for the first time on appeal, that the separation agreement entered into by the parties is unenforceable. Specifically, he contends that, in rendering the judgment of dissolution, the court failed to make explicit findings on the record in deviating from the child support guidelines. The defendant did not appeal from the January 8,2004 judgment of dissolution that incorporated the parties’ separation agreement. Moreover, he did not raise this claim before the trial court as part of his various motions concerning his child support obligation. “It is well established that claims that have not been properly raised at trial are not reviewable by [an appellate] court. . . . [I]t is the function of the trial court, not [an appellate] court, to find facts. . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citation omitted; internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 187-88, 942 A.2d 1028 (2008); see also Practice Book § 60-5. Accordingly, we decline to review that claim.
      We also are compelled to note that the defendant’s appellate brief raises the specter of gender bias. Although not separately briefed, the defendant does state that “this appeal would not be necessary if the defendant were female.” Our thorough review of the record indicates that his accusation is completely unfounded.

       Section 46b-215a-3 (b) (6) of the Regulations of Connecticut State Agencies provides in relevant part that “[i]n some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Such circumstances are limited to the following. . . . (B) . . . When the custodial parent has high income, resulting in an extraordinary disparity between the parents’ net incomes, it may be appropriate to deviate from presumptive support amounts . . . .”

       In his reply brief, the defendant suggests that we should apply the “explicit definition of ‘substantial’ ” allegedly contained in General Statutes § 46b-86 (a). That statute provides in relevant part that “the court may order either party to maintain life insurance for the other party or a minor child of the parties or any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support, guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. . . General Statutes § 46b-86 (a).
      The defendant misreads the statute, which addresses a 15 percent deviation from the child support guidelines, not a 15 percent change in income or expenses of a party. Section 46b-215a-3 (b) (6) of the regulations makes no reference to § 46b-86 (a), and the defendant has provided no analysis as to its applicability to that regulation. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) Collins v. Anthem Health

        Plans, Inc., 266 Conn. 12, 54, 836 A.2d 1124 (2003). In addition, “[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 816 n.25, 911 A.2d 1099 (2007). We decline to further address the defendant’s claim.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BRANDON GARCIA
    (AC 28453)
    McLachlan, Lavine and Mihalakos, Js.

      Argued December 3, 2007
    officially released June 24, 2008

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were John A. Connelly, state’s attorney, and, on the brief, Patrick J. Griffin, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Brandon Garcia, appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278, possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of marijuana with intent to sell in violation of General Statutes § 21a-277 and possession of marijuana with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court (1) abused its discretion when it denied his motion in limine to preclude evidence of the cash found in his car, (2) improperly denied his oral motion to suppress the cash found in his car and (3) lacked jurisdiction to determine that he should forfeit the money seized from his car. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 22, 2004, undercover members of the Waterbury police tactical narcotics team, Gary Angón, Eddie Apicella, John Healey and Danny Ferrucci, were surveilling the parking lot by the Shell gasoline station and convenience store at 79 Homer Street in Waterbury. The police had received numerous complaints about open drug dealing at this location and had made several narcotics arrests there previously. While Angón and Healey surveyed the area from an unmarked car parked at one of the gasoline pumps, Apicella and Ferrucci kept watch from an unmarked vehicle in a lot across the street. The officers communicated by portable radios.

Shortly after 9:30 p.m., the officers noticed Matthew Jenkins sitting in a Ford Explorer in an area of the lot that lies within 1500 feet of Sprague Elementary School. Minutes later, the defendant arrived in a black Lexus. When Jenkins sounded his vehicle’s horn, the defendant acknowledged him. The defendant parked, exited his vehicle and walked to the Explorer, carrying a white shopping bag. At 9:42 p.m., the officers observed the defendant get into the Explorer, remove a smaller bag from the shopping bag and place it next to Jenkins. They observed Jenkins hand the defendant a roll of cash. The defendant then exited the Explorer and headed toward the convenience store. Angón arrested and searched the defendant, finding marijuana on his person, $2650 in one of his pockets and $570 in another pocket.

Jenkins, meanwhile, attempted to escape in his Explorer. When Apicella and Healey blocked Jenkins’ exit with their vehicles, Jenkins fled on foot. From the Explorer, the officers recovered one bag containing 2.97 ounces of cocaine and another bag containing one half ounce of marijuana. Jenkins was apprehended subsequently. He testified at trial that when he telephoned the defendant to arrange his purchase of three ounces of cocaine for $2400 and one half ounce of marijuana for $250, the defendant suggested they meet at the Shell station parking lot. Jenkins also testified that he bought drugs from the defendant in the manner described by the undercover officers, exchanging cash for cocaine and marijuana.

At the arrest scene, Apicella assigned Angón to drive the defendant’s vehicle to the police station. Angón quickly examined the defendant’s vehicle to ensure that nothing in it would be disturbed or cause any danger during transit. On the rear seat, he discovered a shoe box containing cash. In the trunk of the car, he discovered another shoe box containing cash. Angón showed Apicella the two boxes but did not count the money. Angón then drove the car to the station, logged it in as evidence and conducted an inventory search of its contents. The inventory recovered included the boxes of cash from the rear seat and trunk, which contained $10,510 and $4000, respectively. The money was seized as drug sale proceeds.

The defendant was charged with possession of cocaine with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (a), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of § 21a-278a (b), possession of marijuana with intent to sell in violation of § 2 la-277 and possession of marijuana with intent to sell within 1500 feet of a school in violation of § 21a-278a (b). Following a jury trial, he was convicted on all four counts and sentenced to thirty-one years of incarceration. At his sentencing, he filed a motion for the return of the seized currency. The court denied the motion, ordering that the money seized be forfeited to the state. This appeal followed.

I

The defendant’s first claim is that the court abused its discretion when it denied his motion in limine to preclude evidence of the cash found in his car because the evidence was not relevant to the crimes charged. The defendant maintains that because the cash at issue did not change hands during the events that gave rise to the criminal charges, the admission of the cash into evidence at trial was more prejudicial than probative. We disagree.

Prior to trial, the defendant filed a motion in limine to prevent the state from admitting into evidence the cash seized from his vehicle. The court denied the motion, concluding that the cash was probative of the defendant’s participation in drug sales and therefore relevant to his intent to sell drags. The court additionally determined that the prejudicial effect of the evidence did not outweigh its probative value. Subsequently, the cash was admitted into evidence.

In denying the defendant’s motion, the court explained that the defendant’s alleged use of his vehicle to facilitate drag sales supplied a nexus between the cash recovered from the car and the defendant’s intent to sell drags: “The defendant was seen arriving in his car by the officers .... He is alleged to have parked the car a short distance away from where there was an apparent or alleged sale of narcotics. This is not a situation like the cases cited by the defendant in his motion where there is little or no factual nexus between the crime charged and the location from which the evidence in those cases was seized.” Discerning a plausible connection between the defendant’s intent to sell and the quantum of cash found in the car, the court deemed the evidence more probative than prejudicial.

“[T]he trial court has broad discretion in ruling on the admissibility of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Carty, 100 Conn. App. 40, 52, 916 A.2d 852, cert. denied, 282 Conn. 917, 925 A.2d 1100 (2007). “[E]vidence maybe excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . . . [Ajdverse evidence is . . . inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Bennett-Gibson, 84 Conn. App. 48, 66, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d 570 (2004). “The primary responsibility for conducting the balancing test to determine whether the evidence is more probative than prejudicial rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion. ” (Internal quotation marks omitted.) State v. Fernandez, 76 Conn. App. 183, 189, 818 A.2d 877, cert. denied, 264 Conn. 901, 823 A.2d 1220 (2003).

The admissibility of evidence is governed by the rules of relevance. See State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987). “The quantity of money seized from [a] defendant [is] relevant to the issue of intent to sell cocaine.” State v. Monar, 22 Conn. App. 567, 577, 579 A.2d 104, cert. denied, 216 Conn. 828, 582 A.2d 206 (1990). “[E]vidence from which the jury could reasonably infer intent to sell the . . . cocaine includes . . . the amount of . . . cash the defendant possessed . . . .” State v. Baldwin, 224 Conn. 347, 368-69, 618 A.2d 513 (1993). Accordingly, even if the proceeds from the sale to Jenkins were not included in the cash seized from the defendant’s car, the cash was relevant to the issue of the defendant’s alleged participation in narcotics trafficking. Such evidence is commonly admitted as circumstantial evidence of a defendant’s intent to sell drugs. See State v. Holeman, 18 Conn. App. 175, 179, 556 A.2d 1052 (1989). “Proof of a defendant’s intent generally takes the form of circumstantial evidence . . . .” (Internal quotation marks omitted.) State v. Uribe, 14 Conn. App. 388, 393, 540 A.2d 1081 (1988).

We find no abuse of discretion in the court’s determination that the cash found in the defendant’s car was relevant to the crimes charged. We also are not persuaded that this evidence was unduly prejudicial. Our Supreme Court has defined the situations in which the potential prejudicial effect of relevant evidence would suggest its exclusion as the following: “(1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Harris, 277 Conn. 378, 391, 890 A.2d 559 (2006).

None of these circumstances is present in this case. First, the defendant cites no authority to support his allegation that the cash at issue tended to arouse the jury’s emotion, hostility or sympathy. On the contrary, our courts regularly have regarded a criminal defendant’s quantum of cash as circumstantial evidence of his intent to sell drugs. See State v. Baldwin, supra, 224 Conn. 368-69 (“[t]he evidence from which the jury could reasonably infer intent to sell . . . cocaine includes . . . the amount of . . . cash the defendant possessed”); State v. Uribe, supra, 14 Conn. App. 394 (“[t]he defendant also possessed a quantity of cash in denominations which could reasonably lead a jury to conclude that the defendant intended to sell marihuana”). Second, the cash seized did not create a collateral issue during the trial but, rather, was germane to the charges. The defendant was free to explain the origin of the money as well as his theory that it was irrelevant to the crimes charged. Third, the evidence and counterproof did not consume an undue amount of time. Defense counsel’s counterargument was direct and brief. Finally, the defendant had reasonable grounds to anticipate the evidence. The fact that he filed a pretrial motion to preclude the evidence at issue proves that he was not surprised by it.

Because a quantum of cash may provide circumstantial evidence of the intent to sell narcotics and because such evidence was not unduly prejudicial in this case, we deem proper the court’s denial of the defendant’s motion to preclude the cash found in his car.

II

The defendant’s second claim is that the court improperly denied his motion to suppress the cash recovered from his car because the boxes containing the cash were found and opened at the arrest scene without a warrant in violation of his rights under the fourth amendment to the federal constitution and article first, § 7, of the constitution of Connecticut. In particular, the defendant claims that the court improperly denied his motion to suppress (1) the cash found on the rear seat of the passenger compartment because the search incident to arrest exception to the warrant requirement applies only when an arrestee is able to reach for weapons or destroy evidence and (2) the cash found in the trunk because the inventory search exception cannot be applied to evidence discovered at the arrest scene. We do not agree.

The defendant’s motion to suppress was not made before trial but after the state had rested. By the time the defendant had moved to suppress the evidence in question, the jury was fully aware of it. After hearing arguments on the motion over a period of two days, the court denied it, determining that (1) the cash on the rear seat was discovered legally pursuant to a search incident to arrest and (2) the cash in the trunk was discovered legally pursuant to an inventory search. The court suggested that defense counsel present his positions regarding the evidence at issue during his closing argument. In his closing argument, defense counsel characterized as inconsistent the officers’ testimony about when and where the evidence at issue was discovered.

1We first set forth our standard of review. “The Fourth Amendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers and effects against unreasonable search and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception.” (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 79-80, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Whether the trial court properly found that facts submitted were enough to support a finding of probable cause is a question of law. . . . Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e . . . give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Id., 79.

As the defendant’s claim challenges the court’s denial of the motion to suppress on separate grounds, we address them in turn.

A

Claiming that the court improperly denied his motion to suppress the cash discovered on the rear seat of the passenger compartment, the defendant challenges the court’s determination that Angon’s inspection of the passenger compartment at the scene of the arrest was a search incident to arrest. According to the defendant, the search incident to arrest exception applies only when the arrestee is able to reach for weapons or destroy evidence.

In its ruling regarding the motion to suppress the cash found on the rear seat of the passenger compartment, the court stated: “The law is clear that the scope of a search incident to a full custodial arrest of a motor vehicle operator, which was the case in this case, includes a search of the passenger compartment of the vehicle and the contents of any open or closed containers found in the passenger compartment. That includes the rear seat. That includes things like the glove compartment, even if that compartment is locked. This is true . . . even where the arrestee has been removed from the vehicle and [is] handcuffed and placed in a patrol car. Consequently, as I see it, the defendant has no claim with respect to the shoe box seized from the passenger compartment.” We agree with the court’s interpretation of the law.

“There are four recognized situations where a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or state constitutions. They are: (1) it was made incident to a lawful arrest; (2) it was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime; (3) it was based upon consent; or (4) it was conducted pursuant to an inventory of the car’s contents incident to impounding the car.” (Citation omitted; internal quotation marks omitted.) State v. Miller, 29 Conn. App. 207, 237-38 n.1, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993); see State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989).

“[W]hen police make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, police may contemporaneously search without a warrant the interior passenger compartment of the automobile.” State v. Delossantos, supra, 211 Conn. 266-67. “The search incident to an arrest exception . . . has traditionally been justified by the reasonableness of searching for weapons, instruments of escape and evidence of crime when a person is taken into custody and lawfully detained.” (Internal quotation marks omitted.) State v. Santiago, 17 Conn. App. 273, 276-77, 552 A.2d 438 (1989). “[W]e have recognized that the police may make a search without a warrant incidental to a lawful custodial arrest. . . . Custodial arrests not only serve to protect the police themselves, but also serve ... to assist in the investigation of crime.” (Citations omitted.) State v. Dukes, 209 Conn. 98, 121, 547 A.2d 10 (1988).

The defendant’s theory that the search incident to arrest exception requires that an arrestee be able to reach for weapons or destroy evidence is not supported by our case law. “In New York v. Belton, [453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)], the United States Supreme Court held that a lawful custodial arrest justifies a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had, control over the area. ” (Emphasis added.) State v. Santiago, supra, 17 Conn. App. 277. Indeed, our Supreme Court in State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), declared that it “ordinarily will refuse to evaluate whether or not an individual arrested while in an automobile actually had access to the passenger compartment at the time of the search,” citing several cases in which the searches were upheld even though the arrestee had no apparent opportunity to gain access to the passenger compartment of the automobile. (Internal quotation marks omitted.) State v. Lizotte, 11 Conn. App. 11, 22, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987), quoting State v. Badgett, supra, 427. Significantly, “a search incident to an arrest [need not] be limited to evidence of the crime for which a defendant is initially arrested.” State v. Santiago, supra, 277.

Because the scope of a search incident to the arrest of a motor vehicle operator includes the passenger compartment of the vehicle, regardless of whether the arrestee could gain access to it, the cash discovered on the rear seat of the defendant’s vehicle was admitted properly pursuant to Angon’s lawful arrest of the defendant. Consequently, the defendant’s claim that the court improperly denied his motion to suppress this cash must fail.

B

The defendant also claims that the court improperly determined that Angón recovered the money from the trunk of the defendant’s car pursuant to a valid inventory search. Specifically, the defendant argues that the court should not have credited Angon’s testimony that this evidence was the product of a valid inventory search in light of Apicella’s testimony that the money was discovered at the arrest scene prior to the inventory search at the police station.

Mindful that “[u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality”; (internal quotation marks omitted) State v. Orellana, supra, 89 Conn. App. 79; we recognize the inventory search as “a well-defined exception to the warrant requirement.” (Internal quotation marks omitted.) State v. Gasparro, 194 Conn. 96, 107, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct, 90, 88 L. Ed. 2d 74 (1985). “In the performance of their community caretaking functions, the police are frequently obliged to take automobiles into their custody. ... A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person.” (Citations omitted; internal quotation marks omitted.) Id., 107-108.

Angón testified that in keeping with Waterbury police policy, he cursorily searched the car at the arrest scene and later counted the cash during an inventory search at the police station. Healey testified that at the scene of the crime, Angón “did a search of the immediate area of the Lexus that [the defendant] had exited from. He took all the evidence he had, and he drove that vehicle back to headquarters.” Similarly, Apicella testified that at the arrest scene, Angón quickly examined the Lexus to ensure that nothing in it would cause a danger, or be disturbed, during transit. This testimony, which essentially corroborated the police report, suggests that Angon’s examination of the car at the arrest scene was motivated by the “three governmental interests supporting] inventory searches: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property and (3) protection of the owner’s property while it remains in police custody.” (Internal quotation marks omitted.) State v. Hicks, 53 Conn. App. 470, 475-76, 730 A.2d 649 (1999).

The defendant alleges that there is a significant contradiction between Angon’s testimony that the money in the trunk was discovered during the inventory search and Apicella’s testimony that Angón told him at the arrest scene and prior to the inventory search that “there [was] money in these boxes.” The defendant is not claiming that the court did not have sufficient evidence on which to base its decision. Rather, he argues that the evidence the court relied on was not sufficiently credible. This claim therefore distills to a credibility contest. See State v. Nowell, 262 Conn. 686, 695, 817 A.2d 76 (2003).

In ruling on the motion to suppress the cash recovered from the trunk, the court stated: “[T]he issue is whether that shoe box was discovered and opened pursuant to a valid inventory search. [Defense counsel] claimed that it was not [discovered pursuant to a valid inventory search] based upon Detective Apicella’s testimony in which he indicated that he returned to the gasoline station where he found Detective Angón and [the defendant] in custody. His testimony may, and I stress the word may, be somewhat contradictory with that of Detective Angón, who testified that he conducted an inventory search of the vehicle at the police station and [that] it was at that point that he discovered the shoe box containing the cash in the trunk.” (Emphasis added.)

The court made credibility determinations to conclude that Angón properly received and recorded the box of cash from the trunk of the car as part of an inventory search, as is apparent from the following statements: “[I]t appears that [Angón] may have opened the trunk briefly at the scene, but certainly the sense I got from the testimony, which I credit, is that he actually took the shoe box out of the motor vehicle at the police department, and that’s where he found one pile of cash .... [T]he court credits the testimony of Detective Angón that the second shoe box, the one taken from the trunk, was properly taken as part of a lawful inventory search.” (Emphasis added.)

“[W]e . . . give great deference to the findings of the trial court because of its function to weigh and inteipret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Orellana, supra, 89 Conn. App. 79. We note that “[t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn. App. 254, 263, 930 A.2d 693 (2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008); see State v. DaEria, 51 Conn. App. 149, 157, 721 A.2d 539 (1998).

In deference to the court’s decision, which was based on credibility determinations, that the cash at issue was recovered pursuant to the standardized procedures of an inventory search, we conclude that the court properly denied the motion to suppress the evidence gathered during the search of the trunk of the defendant’s vehicle.

Ill

The defendant last claims that the court improperly ordered the forfeiture of $14,510 seized from his vehicle. Specifically, he asserts that this cash could be forfeited only after an in rem hearing pursuant to General Statutes § 54-36h. Absent such a hearing, the defendant argues, the court lacked subject matter jurisdiction to make a forfeiture determination about money that did not change hands in the drug transaction under prosecution. The court, determining that the money seized from the defendant’s vehicle constituted drug proceeds, concluded that it was authorized to forfeit the money to the state pursuant to General Statutes § 54-36a (c). We agree with the court’s conclusion.

The defendant’s claim raises issues of statutory construction, over which our review is plenary. Whitaker v. Commissioner of Correction, 90 Conn. App. 460, 470, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005). “A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . The meaning of a statute shall, in the first instance, be ascertained from 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.” (Internal quotation marks omitted.) Id., citing General Statutes § l-2z.

“Where . . . more than one statute is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . and we construe the statutes, if possible, to avoid conflict between them.” (Citations omitted.) Berger v. Tonken, 192 Conn. 581, 589-90, 473 A.2d 782 (1984). “[I]t is an elementary rule of construction that all sections of an act relating to the same subject matter should be considered together .... Insofar as possible the separate effect of each individual part or section of an act is made consistent with the whole.” (Internal quotation marks omitted.) Ossen v. Wanat, 217 Conn. 313, 320, 585 A.2d 685, cert. denied, 502 U.S. 816, 112 S. Ct. 69, 116 L. Ed. 2d 43 (1991).

The subsection invoked by the court in this case, § 54-36a (c), which is contained in chapter 959 of the General Statutes, part III, titled, “Seized Property,” specifically authorizes the judicial disposition of contraband, defined as “any property, the possession of which is prohibited by any provision of the general statutes,” at the conclusion of criminal actions. “Unless such seized property is stolen property and is ordered returned pursuant to subsection (b) of this section or unless such seized property is adjudicated a nuisance in accordance with section 54-33g, or unless the court finds that such property shall be forfeited or is contraband, or finds that such property is a controlled drug, a controlled substance or drug paraphernalia as defined in subdivision (8), (9) or (20) of section 21a-240, it shall, at the final disposition of the criminal action or as soon thereafter as is practical, or, if there is no criminal action, at any time upon motion of the prosecuting official of such court, order the return of such property to its owner within six months upon proper claim therefor.” (Emphasis added.) General Statutes § 54-36a (c). “A person should not be allowed to vest himself with a possessory interest by crime or to invoke the law in order to disengage himself from the unlawfulness of his conduct.” State v. Morant, 242 Conn. 666, 671-72, 701 A.2d 1 (1997).

General Statutes § 54-36h, on which the defendant relies, is entitled, “Forfeiture of moneys and property related to illegal sale or exchange of controlled substances or money laundering. In rem proceeding. Disposition.” It outlines the procedures required for effectuating in rem forfeiture proceedings. On its face, the language of this statute could be applied to currency such as that at issue in this case. The legislative history of § 54-36h, as well as the words “related to” in its title, suggest, however, that this section addresses money and property not disposed of by the court at the disposition of a criminal trial pursuant to § 54-36a. In passing § 54-36h, legislators addressed the type of property at issue in the case at bar: “[I]f [the state] were to go after a dealer and he had $100,000 in the bank, the government could not claim the whole $100,000 as potentially illegal and not give him the use of that.” 32 H.R. Proc., Pt. 20, 1989 Sess., p. 6939, remarks of Representative Richard D. Tulisano. “A different result is mandated, however, where the property at issue is found alongside and seized contemporaneously with the drugs. In that instance, the connection between the property and the drugs is less speculative and, accordingly, that property is less worthy of an inference that it may be property that is not subject to [in rem) forfeiture [proceedings].” (Emphasis added.) State v. $28, 194.63 U.S. Currency, Superior Court, judicial district of Ansonia-Milford, geographical area number five, Docket No. CR5-6977 (April 17,2001) (29 Conn. L. Rptr. 672). “If the property that is confiscated in an automobile with drugs or in an apartment where you have half a million dollars in small bills as a part of an arrest, could this be used for a legal defense?” 32 H.R. Proc., supra, pp. 6938-39, remarks of Representative J. Peter Fusscas. “[I]n the situation you described, that would not be available. That would be confiscated funds.” Id., p. 6939, remarks of Representative Tulisano.

The distinction in Connecticut statutes delineating the disposition of property seized as evidence, pursuant to § 54-36a, from property subject to forfeiture proceedings, pursuant to § 54-36h, leads us to conclude that seized contraband does not require in rem forfeiture proceedings, as unseized property does. “[A] careful reading of all of the relevant provisions of [§ 54-36h], as well as a search of its legislative history, reveal [s] that [the statute] was only intended to protect from forfeiture that property that has not yet been seized by the state .... This exemption was not intended, however, to extend to property that has been seized simultaneously with drugs, incident to a drug sales arrest.” (Emphasis added.) State v. $28, 194.63 U.S. Currency, supra, 29 Conn. L. Rptr. 672.

The court in this case distinguished money that has exchanged hands in a drug transaction from the type of property at which § 54-36h is aimed. The court nonetheless made a finding that the money at issue constituted drug proceeds even though it had not exchanged hands during the transaction on which the charges against the defendant were based: “The defendant was not employed at the time and no plausible explanation was offered as to how the defendant could have lawfully possessed the large amount of cash [found in the vehicle].” Consequently, the court ordered the currency forfeited to the state pursuant to § 54-36a (c).

We agree with the court’s conclusion that “the legislative history makes clear that these two statutes are to operate in tandem, even in cases involving seized cash from drug transactions.” Id. We conclude that the court in this case properly exercised its authority to forfeit contraband to the state pursuant to § 54-36a (c). “The language of § 54-36h (b) is clear and unambiguous. It means what it says. The state ‘may petition the court in the nature of a proceeding in rem to order forfeiture,’ but if it chooses to do so, the petition must be filed l[n]ot later than ninety days after the seizure of moneys or property.’ ” (Emphasis in original.) State v. $1970, 43 Conn. Sup. 203, 206, 648 A.2d 917 (1994). The fact that the state must act within ninety days if it chooses to bring an in rem proceeding does not prohibit a court from making forfeiture determinations about contraband at issue in a criminal trial pursuant to § 54-36a (c).

Having reviewed the relevant statutes and case law, we hold that § 54-36a (c) empowers courts presiding over criminal actions to dispose of contraband, including currency linked to illegal drug transactions, provided that a nexus exists between the contraband and the crimes charged. In this case, the court specifically found that nexus to exist when it concluded that the currency “constitutes proceeds of an illegal drug transaction.” The defendant, who was unemployed at the time of his arrest, offered no plausible explanation as to how the cash was obtained. The cash was found in a vehicle being used in a drug transaction. Finally, the defendant was convicted. The defendant’s claim that the court lacked the authority to dispose of the seized money must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Citing State v. Hall, 82 Conn. App. 435, 438, 844 A.2d 939 (2004), the defendant argues that “[t]he cash was exactly the type of evidence that could excite the passions of the jury or implicate criminal propensity.” In Hall, however, the type of evidence claimed to be the type that could excite the passions of the jury was not a large quantity of cash but, rather, a large quantity of blanlcprescriptionpads. The defendant in that case was convicted of twenty-two counts of illegally prescribing a narcotic substance and fourteen counts of illegally prescribing a controlled substance. As to the admission of the pads, this court ruled that “the error, if any, was harmless . . . .” State v. Hall, supra, 439-40.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing fire place to be searched, and the persons or things to be seized.”

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      Although the defendant claims his rights were violated under both the United States constitution and the constitution of Connecticut, he has not provided a separate analysis for his state constitutional claim. Consequently, we deem it abandoned and will not afford it review. State v. Fauntleroy, 101 Conn. App. 144, 159 n.5, 921 A.2d 622 (2007).

       The defendant also claims that the court improperly denied his motion to suppress all the cash recovered from the vehicle on the ground that it was stored in closed containers, the opening of which required a search warrant. Because this claim is subsumed by the search incident to arrest and inventory search exceptions, we need not address it. See State v. Longo, 243 Conn. 732, 740, 708 A.2d 1354 (1998) (“the Appellate Court repeatedly has upheld . . . warrantless searches of closed containers located in automobiles where probable cause existed to search the vehicle”); see also State v. Billias, 17 Conn. App. 635, 642, 555 A.2d 448 (1989), citing United States v. Frank, 864 F.2d 992, 1001-1002 (3d Cir. 1988) (permissible for police to open closed containers in inventory searches if they follow standard police procedures), cert. denied, 490 U.S. 1095, 109 S. Ct. 2442, 104 L. Ed. 2d 998 (1989).

       The court stated, “At this point, I’m going to deny without prejudice your motion. I will permit you to develop facts as part of your case to further support your claim. We are going to do that in the presence of the jury. ... If you demonstrate facts which change my mind, I will then consider whether or not the toothpaste can be put back in the tube. . . . It may be that that is an argument for you . . . with the jury during closing argument, but again, we would address that if, and only if, I am persuaded that the evidence shows otherwise.”

       See State v. Badgett, supra, 200 Conn. 427, citing United States v. Cotton, 751 F.2d 1146, 1148-49 (10th Cir. 1985) (Belton applicable even though defendant outside car and handcuffed); Traylor v. State, 458 A.2d 1170, 1173 (Del. 1983) (defendant in handcuffs); State v. Valdes, 423 So. 2d 944, 944 (Fla. App. 1982) (defendant seated in police car); State v. Hopkins, 163 Ga. App. 141, 141, 293 S.E.2d 529 (1982) (defendant seated in police car).

       We note, furthermore, that the cash at issue would not have been suppressed had the court deemed its discovery inevitable. “[S]uppression of unconstitutionally obtained evidence [is required] only if the state fails to establish that the evidence would subsequently have been obtained pursuant to the inevitable discovery doctrine.” State v. Miller, 227 Conn. 363, 386, 630 A.2d 1315 (1993).

       General Statutes § 54-36h provides in relevant part: “(a) The following property shall be subject to forfeiture to the state pursuant to subsection (b) of this section: (1) All moneys used, or intended for use, in the procurement, manufacture, compounding, processing, delivery or distribution of any controlled substance, as defined in subdivision (9) of section 21a-240; (2) All property constituting the proceeds obtained, directly or indirectly, from any sale or exchange of any such controlled substance in violation of section 21a-277 or 21a-278; (3) All property derived from the proceeds obtained, directly or indirectly, from any sale or exchange for pecuniary gain of any such controlled substance in violation of section 21a-277 or 21a-278; (4) All property used or intended for use, in any manner or part, to commit or facilitate the commission of a violation for pecuniary gain of section 2la-277 or 2 la-278 ....
      “(b) Not later than ninety days after the seizure of moneys or property subject to forfeiture pursuant to subsection (a) of this section, in connection with a lawful criminal arrest or a lawful search, the Chief State’s Attorney or a deputy chief state’s attorney, state’s attorney or assistant or deputy assistant state’s attorney may petition the court in the nature of aproceeding in rem to order forfeiture of said moneys or property. Such proceeding shall be deemed a civil suit in equity, in which the state shall have the burden of proving all material facts by clear and convincing evidence. The court shall identify the owner of said moneys or property and any other person as appears to have an interest therein . . . .” (Emphasis added.)

       The court stated that “[General Statutes § 54-36h] is intended to permit the seizure and forfeiture of more than just the cash that may exchange hands in [a] drug transaction.”

       In the United States Court of Appeals for the Second Circuit, the weight of the authority indicates that the government in an in rem forfeiture hearing relating to narcotics trafficking charges must demonstrate a nexus between the seized property and illegal drug activity. See United States v. Daccarett, 6 F.3d 37, 56 (2d Cir. 1993).
      Although the disputed order before us was not an in rem forfeiture determination but, rather, a judicial order at the culmination of a criminal trial, this nexus principle serves to guide courts on the due process limitations that apply to in personam forfeiture determinations given the property interests involved.
      For example, in United States v. $31, 990 in U.S. Currency, 982 F.2d 851, 854-55 (2d Cir. 1993), the court held that the following factors favor forfeiture of currency: the currency is found in a vehicle containing drugs; the currency is found close to drug activity; in cases where drugs are present, the currency constitutes an unusually large amount of money and is bundled. In United States v. $103, 025.00 in U.S. Currency, 741 F. Sup. 903, 904 (M.D. Ga. 1990), the court noted that “Congress certainly had no intention to elevate naked possession into equitable ownership in circumstances pointing to the likelihood that the possessor was a courier of drug money.”

       In light of our conclusion that § 54-36a (c) provided a basis for the court’s action, we do not reach the issue of whether the court had the inherent or common-law authority to order the seized money forfeited. We also are not required to reach the issue of whether this section “codified” any prior, inherent common-law authority to order the proceeds forfeited.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. SULTAN WILLIAMS
    (AC 27085)
    Flyrm, C. J., and McLachlan and Robinson, Js.
    Argued February 7
    officially released June 24, 2008

      Robert M. Berke, with whom was Samantha A. Kretzmer, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Marc R. Durso, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Sultan Williams, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1). On appeal, the defendant claims that the trial court abused its discretion and deprived him of his right to an impartial jury when it (1) discharged a regular juror and replaced her with the alternate juror and (2) denied his motion for a continuance. Although we conclude that the court abused its discretion under the circumstances of this case, we nevertheless affirm the judgment because the record is inadequate to conclude that the defendant was prejudiced.

The charge against the defendant arose from an incident that occurred on the afternoon of November 22, 2003, in Stratford. Two police officers were dispatched to an accident involving the defendant’s vehicle and a parked, unoccupied vehicle. The defendant was not driving his vehicle at the time the officers arrived at the scene, and they could not recall whether he was inside or outside of the vehicle when they first approached him. A front tire of the defendant’s vehicle was flat, and there was damage to the front end area. The parked vehicle was damaged in the left rear area. Upon questioning the defendant, the officers detected the odor of alcohol on his breath and observed that he was unsteady on his feet. After failing certain field sobriety tests, the defendant was arrested and transported to the Stratford police station.

The defendant elected to be tried by a jury. During jury selection, the defendant exhausted his peremptory challenges after the selection of five jurors. At that point he requested two additional challenges, and that request was denied by the court. After the sixth juror was accepted, the court indicated that counsel were to select one alternate juror. At the conclusion of the voir dire of juror T, counsel for the defendant challenged him for cause. The court refused to excuse T for cause, and T became the alternate juror. The defendant did not seek any additional peremptory challenges at that time.

After jury selection had been completed, the court indicated that outstanding pretrial motions would be heard on Tuesday, May 31, 2005, at 10 a.m. and that the jury would be sworn immediately thereafter. When counsel arrived the morning of May 31, the court informed them that all of the jurors were not present because of “a miscommunication of some kind.” Although the court told the selected jurors that they were to report on May 31, one of the jurors, M, additionally was told to contact the jury administrator before coming that day in the event of a change in the schedule. Any caller who telephoned the number provided was connected to a recorded message and instructed not to report until contacted by the court. Most of the jurors had not telephoned the designated number and came to the courthouse as originally instructed. The clerk was trying to contact the jurors who had not appeared, and the court was hopeful that all would be reached and available by the time the arguments on the outstanding motions had concluded.

After the luncheon recess, the court informed counsel that six of the seven jurors were at the courthouse. The court reported that M, one of the six selected jurors, however, had “child care responsibilities” and was unable to make alternative arrangements. The alternate was available to replace her, and the court stated that counsel would proceed with the trial that afternoon. Counsel for the defendant objected to proceeding with the alternate as a regular member of the jury and requested that the court continue the trial until the following morning. The court overruled the objection. Counsel then concluded their arguments on the outstanding motions, and the trial commenced later that afternoon. The jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor or drugs. This appeal followed.

The defendant claims that the court abused its discretion in denying his motion for a continuance. The defendant argues that in denying that motion, thereby excusing M and replacing her with T, he was deprived of his right to an impartial jury. We agree that the court abused its discretion in denying the defendant’s motion for a continuance, but we cannot conclude, on the basis of the record before us, that the defendant was prejudiced by that denial.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . In addition, we consistently have acknowledged that [o]ur role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . .

“We have articulated a number of factors that appropriately may enter into an appellate court’s review of a trial court’s exercise of its discretion in denying a motion for a continuance. Although resistant to precise cataloguing, such factors revolve around the circumstances before the trial court at the time it rendered its decision, including: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request ....

“In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. ... In connection with this inquiry into harmless error, [w]e distinguish between two types of cases: those in which a constitutional right has been implicated by a denial of a continuance, and those of a nonconstitutional nature. . . . Although prejudice is presumed in instances in which a defendant has suffered a deprivation of a constitutional right, in order to establish reversible error in nonconstitutional claims, the defendant must prove both an abuse of discretion and harm . . . .” (Citations omitted; internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 801-802, 835 A.2d 977 (2003).

In the present case, through no fault of the defendant, a regular member of the jury, M, was not present on May 31, 2005. On the first day of jury selection, two jurors were accepted and were told that the trial would commence on May 31. No jurors were selected on the second day of jury selection. On the third day of jury selection, the remaining four regular jurors were accepted, and T, the alternate, was accepted by the state and challenged for cause by the defendant. When the court refused to excuse T for cause, he was added to the jury. The court informed the third and sixth jurors selected, as well as the alternate juror, that the trial would commence May 31 and asked them to provide emergency telephone numbers. With respect to the fourth juror and M, however, the court indicated that the trial would probably commence May 31 but that there was a possibility it would be delayed until the following day.

When M was selected, she particularly was concerned about the starting date of the trial. M taught at a middle school and had to make arrangements to procure a substitute teacher in her absence. The court told her to plan on being at the courthouse on May 31, but she also was told to telephone the jury administrator after 5 p.m. on Friday, May 27, or over the weekend for a recorded message in the event the schedule changed. The recorded message specifically instructed jurors for the case not to come in until further contacted by the court. Having heard the recorded message, M did not appear on May 31, and, when contacted by the clerk, stated that she was unable to make the necessary arrangements in order to be present that day in court.

Immediately after the luncheon recess, but before counsel had concluded their arguments on outstanding pretrial motions, the court informed counsel about M’s inability to be present that day and indicated that they would be proceeding with T, the alternate juror, as the sixth juror. Counsel for the defendant objected. She stated that she would not have selected T as a member of the jury if the defendant had not exhausted his peremptory challenges. She requested that the trial commence the following morning, when M would be available. The court denied that request without giving any reason for its decision other than that the alternate was selected in the same manner as the regular jurors were selected.

In determining whether the trial court abused its discretion in denying the defendant’s motion for a continuance, we look to the previously articulated factors. See State v. Coney, supra, 266 Conn. 801-802. The defendant timely made his request for a continuance. As soon as the court indicated that M could not be present that day and that the trial would proceed with T as the sixth juror, defense counsel objected and requested the continuance. The length of delay was a few hours at most. Counsel proceeded to conclude their arguments on outstanding motions that afternoon, and the trial commenced immediately thereafter. Although the transcript does not reflect the exact time that the jury was sworn, it does reflect that only one witness was called that afternoon and that her testimony had not concluded when court was adjourned.

The state did not object to the defendant’s request for a continuance. At oral argument before this court, the state conceded that “presumably” it would not have been inconvenienced by the delay because it had no expert witnesses scheduled to testify on May 31. Sarah Patrick, one of the arresting police officers, testified that afternoon. Patrick had testified earlier that day in connection with one of the defendant’s outstanding motions. Patrick’s testimony before the jury did not conclude that day; she returned the next day for continued cross-examination by defense counsel.

We next look to the legitimacy of the reasons proffered for the request for a continuance. The defendant wanted to be tried by the six regular members of the jury. He did not want to proceed with the alternate, T, in place of M. During jury selection, the defendant had challenged T for cause, and the court refused that request. The defendant could not exercise a peremptory challenge because they had been exhausted, and the court had refused to grant his request for additional challenges. M was not present because she had been told to telephone the jury administrator’s office and, by a recorded message, had been instructed not to come to court until contacted by the court. M was unable to make alternative arrangements for that day but was available for the remainder of the trial. When presented with these reasons, the court summarily stated that “we’re proceeding today and we’re proceeding with six,” and “[t]he alternate was selected just like everybody else.”

Even though we afford great deference to a court’s ruling on a motion for a continuance, we conclude that the court’s denial was unreasonable and arbitrary under the unique circumstances of this case.

Having concluded that the court abused its discretion in denying the defendant’s motion for a continuance, we must next determine whether he was prejudiced by that denial. “In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis.” (Internal quotation marks omitted.) State v. Coney, supra, 266 Conn. 802. The defendant claims that he was deprived of his sixth amendment right to an impartial jury. He provides no analysis or case law, however, in support of this contention. Because the defendant has failed to assert a plausible constitutional claim, he bears the burden of showing that he was harmed by the denial of his motion for a continuance.

Although the defendant challenged T for cause during jury selection, he did not request additional peremptory challenges after the court refused to excuse T for cause. See State v. Ross, 269 Conn. 213, 230, 849 A.2d 648 (2004); State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992). Whether the court improperly denied the defendant’s request to excuse T for cause is not an issue on appeal. T was added to the jury as an alternate juror and became a regular member when the court excused M. Alternate jurors, by statute, must have the same qualifications and be selected in the same manner as regular jurors. General Statutes 54-82h (a). The defendant has not demonstrated any specific harm resulting from the court’s replacement of M by T, the alternate juror. We cannot presume that T was not an impartial juror under these circumstances.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his brief on appeal, the defendant raised two additional issues concerning the denial of his motion for a judgment of acquittal with respect to the operation of the vehicle and the denial of his motion to preclude certain statements of one of the arresting officers. The defendant withdrew those two claims at the time of argument before this court, and we therefore do not address them.

       We refer to the jurors by initial to protect their legitimate privacy interests. State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).

       The colloquy between the court, and M was as follows:
      “The Court: All right. I’ve been telling everybody to come on Tuesday. It’s just possible we may start on Wednesday and just go Wednesday to Friday. So, double-check before you come on Tuesday. But I need to take an emergency phone number from you. Our clerk will take it from you and give you some instructions, and then you’re going to go back up to the seventh floor and hand in some stuff.
      “[M]: Okay.
      “The Court: So, if you can do that.
      “[Defense Counsel]: I’m sorry, Your Honor. Did you tell her it’s at the other courthouse?
      “The Court: I will.
      “The Clerk: I just need a phone number—
      “[M]: You mean like any time—
      “The Clerk: One that you can be reached at in case there’s an emergency in the last second. We need to tell you if there’s a change in the trial schedule.
      “[M]: Okay. [Provides telephone number.]
      “The Clerk: Your social security number and your phone number are on here. And once you’re done here, if you can just go up to the seventh floor and hand that to the jury administrator.
      “[M]: Okay.
      “The Court: Now, I’ll go first. On—when you do report, we’re going to be over on Golden Hill [Street].
      “[M]: Okay.
      “The Court: The other courthouse.
      “[M]: Okay.
      “The Court: So, when you come in, you’ll go in the other courthouse; keep your little jury button there.
      “[M]: Okay.
      “The Court: And you’ll go in the side door over at Golden Hill. Now, your turn.
      “[M]: Okay. When will I know if I—if court’s going to be [in] session, if I need to come on Tuesday?
      “The Court: You will—there’s a phone number.
      “[M]: So, should I just assume I’m going to be here on Tuesday, and then I call? Is that what I do?
      “The Court: Yeah.
      “[M]: Okay. And when would I know that I’m not needed? I’m just thinking about them getting a substitute for school, for my teaching job.
      “The Court: At this point, you should be planning on a substitute for Tuesday. [Unintelligible.]
      “[M]: No, that’s okay.
      “The Clerk: What you should do is Friday, after five or on the weekend, you can call this number here.
      “[M]: Okay.
      “The Clerk: And it will confirm or—
      “[M]: Okay.
      “The Clerk: [Unintelligible.]
      “[M]: All right. Today is Friday, so—
      “The Court: Plan on being here Tuesday.

        “[M]: Plan on being here Tuesday.
      “The Court: Unless you hear something at the last minute.
      “[M]: And then you’ll call—basically, you’ll call?
      “The Court: You’ve got it. Thanks very much.
      “[M]: All right. I’ll see you on Tuesday.”

       The colloquy between the court and defense counsel was as follows:
      “[Defense Counsel]: With all due respect, Your Honor, the defense objects to proceeding with the alternate as part of the jury. We have our six jurors who were chosen. The defendant was out of peremptory challenges. The defendant would not have chosen [T]. It’s not like [M is] saying, I can’t ever come. I mean, she was told—
      “The Court: She can’t come today, [counsel],
      “[Defense Counsel]: I know, but—
      “The Court: She can’t be here today, the trial starts today.
      “[Defense Counsel]: Yeah, but that was not the defendant’s fault that, you know—that was a miscommunication. I’m not saying it was someone’s fault, but I’m saying, that’s not part of our jury. I don’t see why we couldn’t proceed tomorrow with the jury, Your Honor. That’s the alternate. That’s not part of the jury.
      “The Court: No, we’re proceeding today and we’re proceeding with six. Your objection is noted.
      “[Defense Counsel]: Thank you, Your Honor. “The Court: The alternate was selected just like everybody else. We have a motion to suppress evidence. I’ll hear from the defendant.”

       Court resumed after the luncheon recess at page sixty-three of the transcript. Counsel concluded their arguments on the outstanding motions at page 114 of the transcript, and the jury was sworn. The witness began testifying at page 124 of the transcript, and court a<fjoumed at page 172 of the transcript.

       Defense counsel challenged T for cause because T’s vehicle had been struck from behind by an intoxicated driver. When T exited his vehicle, he spoke with the driver who “clearly smelled of alcohol and couldn’t talk right.” T indicated that he flagged down an officer who happened to be driving by and told him that “this guy’s going to kill somebody.” T also indicated that he had been a passenger in an automobile when his friend, the driver, was stopped and arrested for driving while intoxicated and that he had managed an employee who “was an alcoholic and . . . slammed into the back of a police car in the middle of the day.”

       General Statutes § 54-82h (a) provides in relevant part: “Such alternate jurors shall have the same qualifications and be selected and subject to examination and challenge in the same manner and to the same extent as the jurors constituting the regular panel . . . .”