author: DRANGINIS, J.

text:
    STEPHEN PIERSA v. PHOENIX INSURANCE COMPANY ET AL.
    (AC 24188)
    Dranginis, McLachlan and Stoughton, Js.
    Argued January 9 —
    officially released May 11, 2004

      Jon Berk, for the appellant (plaintiff).

      William J. Melley III, for the appellee (defendant city of Hartford).
   Opinion

DRANGINIS, J.

In this appeal, the plaintiff, Stephen Piersa, raises a question of law as to whether a self-insured municipal employer must create a writing giving notice of its intention to reduce its uninsured motorist coverage by the amount of workers’ compensation benefits (compensation benefits) paid to an employee. We conclude that a self-insured municipal employer may reduce the limits of its uninsured motorist coverage by the amount of compensation benefits paid without creating a writing. We, therefore, affirm the judgment of the trial court.

There is no dispute as to the following facts that are relevant to the plaintiffs appeal from the summary judgment rendered in favor of the defendant city of Hartford. On January 15, 1997, the plaintiff was employed by the defendant as a police officer. On that date, while responding to a call for assistance, the plaintiff sustained personal injuries when an uninsured motor vehicle collided with his police cruiser. As a result of the injuries he sustained, the plaintiff incurred medical expenses and lost time from his employment. The defendant paid him $42,261.69 in compensation benefits due to his injuries and financial loss. At the time of the accident, the defendant was a self-insured municipality with uninsured motorist coverage limits of $20,000 per person and $40,000 per occurrence.

The plaintiff commenced this action, seeking uninsured motorist benefits from his own insurance carrier, Phoenix Insurance Company, and the defendant. Only his claim against the defendant is at issue in this appeal. In his amended complaint, the plaintiff alleged the facts concerning his employment and the subject collision. He aiso.aileged that the police cruiser was a self-insured motor vehicle and that the defendant had breached its statutory duty to provide him with uninsured motorist benefits. In response, the defendant denied that it was in breach and alleged four special defenses, including one that “[t]he insurance coverage on the police vehicle is offset by [wjorkers’ [cjompensation benefits received by [the] plaintiff. ” After the plaintiff filed a single general denial of the defendant’s several special defenses, the defendant filed a motion for summary judgment.

In its motion for summary judgment, the defendant claimed that as a matter of law, it was not required to provide uninsured motorist coverage for the police cruiser because it was not a private passenger type of vehicle pursuant to General Statutes § 38a-363 (e) and that the defendant was entitled to reduce its uninsured motorist coverage by the amount of compensation benefits it had paid the plaintiff, citing Boynton v. New Haven, 63 Conn. App. 815, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001). The court disagreed that the police cruiser was not a private passenger type of vehicle. The court agreed, however, that the defendant was entitled to reduce its uninsured motorist coverage by the amount of compensation benefits it had paid the plaintiff and granted the motion for summary judgment.

In reaching its decision, the court relied on Boynton, noting that after a court determines that the statutory minimum of $20,000 is applicable, a claimant’s receipt of workers’ compensation benefits in excess of that amount forecloses his further reimbursement from the municipality. See Boynton v. New Haven, supra, 63 Conn. App. 827-28. Because the plaintiff here had received compensation benefits in excess of the statutory minimum, he was foreclosed from seeking further reimbursement from the defendant.

The plaintiff appealed, claiming, as he had argued in his objection to the motion for summary judgment, that the defendant may not reduce its uninsured motorist coverage by the amount of compensation benefits paid because it failed to exercise its permissive right to do so by means of a writing. In granting the defendant’s motion for summary judgment, however, the court did not address the plaintiffs argument that the defendant was required to create a writing, but limited its decision to the bases asserted in the defendant’s second, third and fourth special defenses. The plaintiff failed to seek an articulation. See Practice Book § 66-5.

Our scope of review of the court’s decision to grant a motion for summary judgment is plenary. H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. “A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings.” (Citation omitted; internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).

Our plenary review of the pleadings discloses that the plaintiff never made the need for a writing a question of material fact or a legal issue in the case because he failed to plead it in response to the defendant’s special defense regarding the deduction of compensation benefits from the available uninsured motorist’s coverage. In addition to taking note of the absence of a pleading regarding the need for a writing, we also note that the plaintiff failed to provide sufficient evidence to the court that a writing did not exist or to create a genuine issue as to whether one existed.

Even though we do not have the benefit of the court’s reasoning as to whether the defendant was required to create a writing to reduce its uninsured motorist coverage by the amount of workers’ compensation benefits paid or a determination as to whether a writing existed, the defendant has conceded that the facts underlying the appeal are not in dispute. The only issue on appeal, therefore, is a pure question of law. The absence of the court’s reasoning on the issue does not bar appellate review de novo. See Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 745-46, 826 A.2d 170 (2003).

The plaintiff claims that the defendant is in breach of its statutory duty, pursuant to General Statutes §§ 14-129, 38a-371 and 38a-336, to provide uninsured motorist benefits because it may not reduce uninsured motorist coverage by the amount of benefits paid without first creating a writing. To support his argument, the plaintiff relies on the state insurance regulations.

Section 38a-334-6 (d) of the Regulations of Connecticut State Agencies provides in relevant part: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the General Statutes, except that the policy may provide for the reduction of limits to the extent that damages have been . . . (B) paid or are payable under any workers’ compensation law . . . .” (Emphasis added.) The plaintiff claims that because the regulation permits, not mandates, a reduction of uninsured motorist benefits for compensation benefits paid, the defendant was required to adopt it explicitly by means of a writing. We are not persuaded.

We first look at Boynton v. New Haven, supra, 63 Conn. App. 815, on which the court relied, because the plaintiff claims that the language cited by the court is merely dicta. Id., 827-28 (once it is determined that statutory minimum is applicable, plaintiffs receipt of $25,000 from tortfeasor foreclosed his access to further reimbursement from defendant city). We agree that the cited language is dicta. Furthermore, the statutes and questions in Boynton are not on point with respect to the question before us now. Boynton, however, discusses the distinction between a commercial insurer and a self-insurer, and why a self-insurer need not provide written notice to itself. Id., 828-29.

The plaintiff in Boynton also was a police officer injured in the line of duty. Id., 818. He claimed that the defendant city, which was self-insured, was required to provide underinsured motorist coverage in parity with its liability coverage and that “the city could not invoke the statutory minimum without having executed a written waiver or notice.” Id., 826. Here, we are only interested in the second part of the issue. Boynton concerned § 38a-336 (a) (2), which, in 1993, when the incident at issue in that case occurred, permitted “commercial insurers to limit their liability, and thereby to reduce insurance premiums, upon the written request of the insured.” (Emphasis in original.) Id., 828.

The court disagreed with the plaintiff because, under the circumstances of that case, it would make no sense to apply the written request requirement of the statute literally. “[U]pon electing to become a self-insurer, [the city] not only became an insurer . . . but also, the functional equivalent of a named insured .... A literal reading of the statute would have required the city, wearing its hat as insured, to file a written request with itself, wearing its hat as insurer. That reading is untenable.

“As the city notes, self-insurer status with respect to its fleet of passenger motor vehicles bears a closer resemblance to fleet insurance generally. [F]leet insurance gives rise to a significantly different set of expectations and considerations than does personal automobile insurance. . . .

“[T]he primary legislative purpose in requiring a written request for a reduction in uninsured motorist coverage is to ensure that one named insured not be bound, to his or her detriment, by the unilateral decision of another named insured to seek such a reduction. . . . Such a concern has little or no applicability in the context of a commercial fleet policy. . . .

“In light of this legislative purpose, we are persuaded that it would be an exercise in futility to require the city to file a written request to itself. We presume that the legislature did not intend such an outcome.” (Citations omitted; internal quotation marks omitted.) Id., 828-29.

We agree with the legal reasoning and commonsense approach of Boynton that a self-insurer is the functional equivalent of both an insurer and an insured, and that it is untenable to expect that a self-insurer explicitly must tell itself by means of a writing that it intends to adopt the permissive reduction of the insurance regulations in order to do so. Our construction of § 38a-334-6 of the Regulations of Connecticut State Agencies and review of the relevant statutes and case law give further support to our conclusion. We begin with the regulation.

“Agency regulations, appropriately issued, have the force and effect of a statute. . . . We therefore construe agency regulations in accordance with accepted rules of statutory construction. . . . Just as it is accepted that the legislature does not enact superfluous statutes . . . the same is true of administrative regulations.” (Citations omitted.) Gianetti v. Norwalk Hospital, 211 Conn. 51, 60, 557 A.2d 1249 (1989).

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it'was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Boynton v. New Haven, supra, 63 Conn. App. 822.

“[T]he legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. ... In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Secretary of the Office of Policy & Management v. Employees’ Review Board, 267 Conn. 255, 278, 837 A.2d 770 (2004) (Zarella, J., concurring).

The basis of the plaintiffs claim lies in the wording of the insurance regulations governing uninsured motorist coverage, specifically that “[t]he limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability . . . except that the policy may provide for the reduction of limits to the extent that damages have been . . . (B) paid or are payable under any workers’ compensation law . . . .” (Emphasis added.) Regs., Conn. State Agencies § 38a-334-6 (d). “In the absence of express statutory guidance, we normally construe words used in statutes and regulations according to their commonly approved usage.” (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 264, 788 A.2d 60 (2002). In this case, we have the benefit of a statutory definition of the word policy to guide us.

“ ‘Policy’ means any document, including attached endorsements and riders, purporting to be an enforceable contract, which memorializes in writing some or all of the terms of an insurance contract.” (Emphasis added.) General Statutes § 38a-l (15). “ ‘Insurance’ means any agreement to pay a sum of money, provide services or any other thing of value on the happening of a particular event or contingency orto provide indemnity for loss in respect to a specified subject by specified perils in return for a consideration. In any contract of insurance, an insured shall have an interest which is subject to a risk of loss through destruction or impairment of that interest, which risk is assumed by the insurer and such assumption shall be part of a general scheme to distribute losses among a large group of persons bearing similar risks in return for a ratable contribution or other consideration.” (Emphasis added.) General Statutes § 38a-l (10).

In the context of uninsured motor vehicle coverage, a self-insured municipality is the functional equivalent of an insurer and an insured. See Conzo v. Aetna Ins. Co., 243 Conn. 677, 683, 705 A.2d 1020 (1998). There is no question that the functional statutory requirements related to uninsured motorist coverage apply to self-insurers as well as to commercial insurers. Id. The statutory definition of policy, the word used in the regulation, however, refers to an insurance contract. Our statutes define a contract of insurance, in part, as the interest an insured has in a risk that is assumed by an insurer as “part of a general scheme to distribute losses among a large group of persons bearing similar risks in return for a ratable contribution or other consideration.” General Statutes § 38a-l (10).

When determining that a self-insurer under our workers’ compensation statutes is not an insurer for purposes of the Connecticut Insurance Guaranty Association Act, General Statutes § 38a-836 et seq., our Supreme Court found that there is “substantial authority for the position that self-insurance is not insurance at all.” Doucette v. Pomes, 247 Conn. 442, 459, 724 A.2d 481 (1999) (certificate of self-insurance cannot be equated with insurance contract or policy). “Scholars have discussed self-insurance as follows: Risk transference or risk distribution may be accomplished without using insurance. . . . For example, entities that provide goods or services to many individuals . . . could choose to handle the risk of personal injury claims by setting aside assets — either by accounting entries or by actually establishing a special fund — from which it will pay such claims, rather than by purchasing insurance. . . . Although an entity that handles the risk of tort claims in this manner is sometimes referred to as a self-insurer, this approach involves no insurance as the term is ordinarily used in regulatory statutes or in other legal contexts. . . . Self-insurance as a technique for treating risk has long been surrounded with confusion and controversy. . . . For those who believe that transfer of risk is a requisite for insurance, the term self-insurance is a misnomer since it permits no transfer. . . . Even the language of [General Statutes § 31-284 (b)] supports this view of self-insurance. It provides that unless an employer can prove its solvency and financial ability to pay [compensation] directly to injured employees, it must insure [its] full liability under the Workers’ Compensation Act. . . . Thus, the section distinguishes between insurance and an employer’s retention of its own risk to pay compensation.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 458-59.

Our Supreme Court then reasoned: “In the appeal before us, [the intervening plaintiff] did not purchase insurance to cover its risk. Rather, it complied with the Workers’ Compensation Act by retaining its own risk. It did not thereby become transformed into an insurer. Rather, it retained its character as an employer that simply elected to pay the expenses associated with its employees’ work-related accidents. Although this is commonly referred to as self-insuring, there was no transfer of risk, which is generally considered to be an essential element of an insurance relationship.” Id., 459.

The reasoning of Doucette further supports the rationale of Boynton v. New Haven, supra, 63 Conn. App. 828. Doucette acknowledged that self-insurance is a misnomer because it involves no transfer of risk, and an entity that chooses to retain its own risk is not thereby transformed into an “insurer” for purposes of our insurance statutes. Doucette v. Pomes, supra, 247 Conn. 457. Because self-insurance is, nonetheless, the functional equivalent of commercial insurance; see Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 378 n.4, 713 A.2d 820 (1998); when an entity is self-insured, it functions as both insurer and insured. The writing requirement of § 38a-334-6 (d) (1) (B) of the Regulations of Connecticut State Agencies provides that an insurer must give notice to its insured that any liability payments will be reduced by workers’ compensation benefits by incorporating such notice into a policy. A self-insurer, as a single entity, however, does not enter into a policy with itself. To require the defendant, “wearing its hat as insure[r]” to create a writing “with itself, wearing its hat as insure[d],” with respect to § 38a-334-6 (d) (1) (B) of the Regulations of Connecticut State Agencies is untenable. Boynton v. New Haven, supra, 828. We, therefore, conclude that the writing requirement of § 38a-334-6 (d) (1) (B) of the Regulations of Connecticut State Agencies does not apply to self-insurers.

We now look to our General Statutes to determine whether they require a self-insured municipality to provide a writing to reduce the limits of its uninsured motorist coverage by the amount of compensation benefits paid. In doing so, we are mindful of the rule that “[i]t is not the function of courts to read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citation omitted.) International Business Machines Corp. v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974).

Section 38a-371 (a) (1) of our General Statutes requires the owner of a private passenger motor vehicle registered in this state to provide security pursuant to a statutory scheme, which includes uninsured motorist coverage. See footnote 7. There are two ways in which the owner of a passenger motor vehicle may provide the required security. An owner may acquire “a policy of insurance . . . issued by or on behalf of an insurer . . . .” (Emphasis added.) General Statutes § 38a-371 (b); see footnote 7. The required security also “may be provided by self-insurance . . . .” (Emphasis added.) General Statutes § 38a-371 (c); see footnote 7.

Any person who registers “more than twenty-five motor vehicles . ; . may qualify as a self-insurer by obtaining a certificate of self-insurance” from the insurance commissioner. General Statutes § 14-129; see footnote 6. “The [insurance] commissioner may, in his discretion, upon the application of such person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person.” General Statutes § 14-129 (b). “A municipality may provide the security required under this section by filing with the commissioner a notice that it is a self-insurer.” General Statutes § 38a-371 (c).

A close examination of the words of the statutes by which a municipality may self-insure its fleet of passenger vehicles demonstrates that the statutes do not require such a municipality to create a writing to reduce the amount of its uninsured motorist coverage by the amount of compensation benefits paid to an employee. We, therefore, will not impose such a requirement on a self-insured municipality.

Last, we are aware that in the not too distant past, the exclusivity provision of the Workers’ Compensation Act; General Statutes § 31-284 (a); was deemed to preclude an employee from seeking uninsured or underin-sured motorist benefits from his or her employer. See Bouley v. Norwich, 222 Conn. 744, 755, 610 A.2d 1245 (1992); CNA Ins. Co. v. Colman, 222 Conn. 769, 773, 610 A.2d 1257 (1992). In legislatively overturning those cases, the General Assembly enacted § 38a-336 (f), which provides: “Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured’s otherwise applicable uninsured and underinsured motorist coverage.”

Conzo v. Aetna Ins. Co., supra, 243 Conn. 677, held that the provisions of § 38a-336 (f) apply to self-insured employers as well as to employers whose compensation coverage was secured by means of commercial insurance. In doing so, our Supreme Court cited the statute’s legislative history, quoting Representative Richard D. Tulisano: “I just note that we have always understood that the workers’ compensation] carriers had a hen on any proceeds . . . .” (Internal quotation marks omitted.) Id., 685. Although the intent of the legislature is to permit self-insured employers to provide uninsured motorist coverage, they are entitled to recover the compensation benefits paid an employee injured by an uninsured motorist.

For all of the foregoing reasons, we conclude that the defendant was not required to create a writing to reduce its uninsured motorist coverage by the amount of the compensation benefits that were paid to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       In this opinion, we refer to the city of Hartford as the defendant. The defendant Phoenix Insurance Company is not a party to the appeal.

       The plaintiffs reply to the defendant’s special defenses alleged: “The [p]lainü£f in the captioned matter hereby denies each and every allegation set forth in the [defendant's . . . [s]pecial [djefenses.”

       Practice Book § 10-57 provides: “Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. Such a reply may contain two or more distinct avoidances of the same defense or counterclaim, but they must be separately stated.” See also Practice Book § 10-1.

       On appeal, the plaintiff appears cognizant of his failure in the trial court. The appendix attached to his brief contains the defendant’s answers to interrogatories and a document the plaintiff asserts supports his contention that the defendant failed to state in writing that it intended to set off its uninsured motorist benefits by the amount of workers’ compensation benefits paid. Although we note that neither of these documents prove the plaintiff’s point, they are not properly before this court on appeal, as they are not part of the record and were not before the trial court for its consideration. See State v. Evans, 9 Conn. App. 349, 354, 519 A.2d 73 (1986) (“[i]n deciding a case, this court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record”).

       The court may have limited its decision to the grounds asserted in the defendant’s special defense because the plaintiff failed to plead his claim regarding the need for a writing in a reply to the defendant’s special defense. Practice Book § 10-57 provides in relevant part that matters in avoidance of affirmative allegations “shall be specifically pleaded in the reply . . . .” In light of that rule, a court may refuse to address a claim in the absence of such a pleading. See Schilberg v. Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273-75, 819 A.2d 773 (2003) (court did not abuse its discretion by failing to consider claim not pleaded in avoidance of special defense). Here, it is not clear whether the court refused to address the matter due to the failure to plead it or whether it considered the claim, as raised in the plaintiffs objection to the motion for summary judgment, and rejected it without comment. Although we do not approve of the plaintiffs failure to plead in accordance with our rules of practice, this failure does not preclude appellate review of an issue of law.

       General Statutes § 14-129 provides: “(a) Any person in whose name more than twenty-five motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the commissioner as provided in subsection (b) of this section.
      “(b) The commissioner may, in his discretion, upon the application of such person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person.”

       General Statutes § 38a-371 provides in relevant part: “(a) (1) The owner of a private passenger motor vehicle required to be registered in this state shall provide and continuously maintain throughout the registration period security in accordance with sections 38a-334 to 38a-343, inclusive. . . .
      “(b) The security required by this section, may be provided by a policy of insurance complying with this section issued by or on behalf of an insurer licensed to transact business in this state ....
      “(c) Subject to approval of the Insurance Commissioner the security required by this section, may be provided by self-insurance by filing with the commissioner in satisfactory form: (1) A continuing undertaking by the owner or other appropriate person to perform all obligations imposed by this section; (2) evidence that appropriate provision exists for the prompt and efficient administration of all claims, benefits, and obligations provided by this section; and (3) evidence that reliable financial arrangements, deposits or commitments exist providing assurance for payment of all obligations imposed by this section substantially equivalent to those afforded by a policy of insurance that would comply with this section. A person who provides security under this subsection is a self-insurer. A municipality may provide the security required under this section by filing with the commissioner a notice that it is a self-insurer.”

       General Statutes § 38a-336 provides in relevant part: “(a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . . because of bodily injury, including death resulting therefrom. . . .
      “(b) An insurance company shall be obligated to make payment to its insured’up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. . . .”

       Section 38a-334-6 of the Regulations of Connecticut State Agencies provides: “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured or underinsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.
      “(b) Arbitration. The insurance may provide but not require that the issues of liability as between the insured and the uninsured or underinsured motorist, and the amount of damages, be arbitrated. The insurer may provide against being bound by any judgment against the uninsured or underin-sured motorist.
      “(c) Exclusions. The insurer’s obligations to pay may be made inapplicable:
      “(1) To any claim which has been settled with the uninsured motorist without the consent of the insurer;
      “(2) if the uninsured or underinsured motor vehicle is owned by
      “(A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing,
      “(B) a self insurer under any motor vehicle law, or
      “(C) any government or agency thereof;
      “(3) to pay or reimburse for workers’ compensation or disability benefits.
      “(d) Limits of liability.
      “(1) The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the General Statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(A) paid by or on behalf of any person responsible for the injury,
      “(B) paid or are payable under any workers’ compensation law, or
      “(C) paid under the policy in settlement of a liability claim.
      “(2) The policy may also provide that any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured may recover under this coverage.
      “(3) Any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment. . . .
      “(e) Recovery over. With respect to the uninsured motorist coverage, the insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or judgment, its insured’s right of action to recover for bodily injury from any third party.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    EILEEN N. GRECO v. GEORGE GRECO ET AL.
    (AC 22797)
    Lavery, C. J., and DiPentima and Stoughton, Js.
    Argued November 18, 2003 —
    officially released May 11, 2004

      James R. Greenfield, with whom was Kelly P. Lutz Mai, for the appellant (named defendant).

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant George Greco appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Eileen Greco. On appeal, the defendant claims that the court, in fashioning its financial orders, (1) overvalued the defendant’s stock in Greco’s Auto Parts, Inc., (2) improperly awarded the plaintiff 98 percent of the parties’ marital assets, (3) improperly relied on gross income, rather than net income, in determining the defendant’s alimony obligation, (4) improperly ordered the defendant to pay alimony and other expenses that exceed his available income, and (5) abused its discretion in awarding the plaintiff $100,000 in attorney’s fees. We agree with the defendant’s third and fourth claims, which are interrelated, and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims. The plaintiff and the defendant were married on September 28, 1974. It was the second marriage for both parties. At the time of the marriage, the defendant had custody of his five children from his prior marriage and the plaintiff had custody of a child bom during her prior marriage. In 1997, DNA testing revealed that the defendant is that child’s biological father. The parties also had a child together bom during their marriage.

Before the parties were married, the defendant owned and operated a gasoline service station. After they were married, the defendant sold the service station and opened an auto parts business. The defendant’s five children from his prior marriage were all involved in operating the auto parts business, Greco’s Auto Parts, Inc., as was the parties’ first child. The defendant also formed and controlled a partnership called LDGG Limited Partnership. Throughout the marriage, the plaintiff was a full-time homemaker, caring for the children and managing the household.

In February, 2000, the plaintiff brought this dissolution action by a one count complaint, claiming an irretrievable breakdown in the marital relationship. She sought the dissolution of the parties’ marriage, an equitable distribution of the parties’ property, alimony and attorney’s fees. On September 25, 2001, the plaintiff filed a three count third amended complaint. The first count was directed against the defendant and was identical to the one count in the original complaint. The second count was directed against the defendant, the defendant’s five adult children from his prior marriage, two “spray trusts” established for the parties’ two children and the LDGG Limited Partnership. That count alleged that the defendant’s transfers of certain assets were fraudulent in violation of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq., and, therefore, they should be set aside and the assets returned to the marital estate. The third count essentially was identical to the second count.

On October 11, 2001, the defendant filed an answer and a counterclaim for dissolution of marriage. On October 30, 2001, the defendant’s five children from his prior marriage filed an answer, special defenses and a four count counterclaim. They also filed a claim for a jury trial. On that same date, the LDGG Limited Partnership and the trustee of the two trusts filed their answers and special defenses. On November 8,2001, the plaintiff filed an answer and special defenses to the counterclaims of the defendant’s five children from his prior marriage.

After a lengthy trial, the court dissolved the parties’ marriage on January 11, 2002, on the basis of irretrievable breakdown. The court also determined that the plaintiff failed to prove her “fraudulent transfer claims by the requisite clear and convincing evidence.” The court, however, stated that although it would not set aside the transfers or include the assets involved in the marital estate, it would consider the defendant’s removal of those assets from the marital estate in fashioning its financial orders.

In its orders, the court ordered the defendant to pay to the plaintiff $710 per week in alimony until the death of either party, the plaintiffs remarriage or her cohabitation. It also ordered the defendant to maintain his life insurance for the plaintiffs benefit and to provide health insurance for her for three years. The court further ordered the defendant to transfer to the plaintiff his interest in the marital residence at 24 Sunbrook Road in Woodbridge. In addition, the court ordered the defendant to transfer to the plaintiff his stock in Greco’s Auto Parts, Inc., or, alternatively, the value of that stock, which the court found to be $250,000. Finally, the court ordered the defendant to transfer to the plaintiff his individual retirement account, which was valued at approximately $9900, and to pay to the plaintiff $100,000 in attorney’s fees. The defendant now appeals from those orders.

We address the defendant’s third and fourth claims together because they are interrelated. The defendant claims that the court improperly relied on gross income, rather than net income, in determining the defendant’s alimony obligation. The defendant also claims that the court improperly ordered him to pay alimony and other expenses that far exceeded his available net income. We agree with both claims.

Initially, we set forth our standard of review. “We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Evans v. Taylor, 67 Conn. App. 108, 111, 786 A.2d 525 (2001). “In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 130, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). Mindful of those principles, we now turn to the issue of whether the court incorrectly applied the law by basing its financial orders on the parties’ gross incomes.

“It is well settled that a court must base . . . alimony orders on the available net income of the parties, not gross income.” Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); see also Ludgin v. McGowan, 64 Conn. App. 355, 358, 780 A.2d 198 (2001).

In the present case, although the court, in its memorandum of decision, did not “affirmatively and expressly” state that it relied on the parties’ gross incomes in determining its alimony order; see Morris v. Morris, supra, 262 Conn. 306; it did find that the defendant had “a $73,840 annual income from the auto parts business . . . .” That amount is equal to the defendant’s gross income as stated in his financial affidavit. In addition, in its financial orders, the court ordered the defendant to pay to the plaintiff $710 per week in alimony, which is precisely 50 percent of the defendant’s gross income. Both parties submitted financial affidavits in which they stated their net income. The court, therefore, had before it evidence of the parties’ net incomes, but failed to mention such income and, instead, focused on the defendant’s gross income.

The court’s reliance on the gross incomes of the parties in fashioning its financial orders is further evinced by the fact that the court ordered the defendant to pay alimony and other expenses that far exceeded his available net income. The court ordered the defendant to pay alimony in the amount of $36,920 per year, life insurance premiums for the plaintiff in the amount of $12,480 per year and health insurance premiums for the plaintiff in the amount of $5972.16 per year. Those payments, when deducted from the defendant’s gross income, as found by the court, leave the defendant with $18,467.84. The court also required the defendant to pay $20,000 per year toward the plaintiffs attorney’s fees, which leaves the defendant with a yearly gross income deficit. Moreover, because the court awarded the plaintiff $720,936.56 out of the parties’ $731,870.21 total marital assets, the defendant has virtually no assets that can be used to meet his annual deficit or to provide for his ordinary living expenses.

In addition, in light of the court’s findings with respect to the defendant’s age, health and ability to work, it is clear that the defendant’s ability to earn income is entirely dependent on his control of Greco’s Auto Parts, Inc., and the source of that control is his sixty-five shares of stock in the corporation, which represent 53.3 percent of the total shares having voting power. In its orders, however, the court ordered the defendant to transfer to the plaintiff his stock in Greco’s Auto Parts, Inc., or, alternatively, to pay to the plaintiff the value of that stock, which the court found to be $250,000. If the defendant retains the stock, the court gave him two payment options (1) a lump sum of $250,000 paid within ninety days or (2) a “promissory note in the amount of $250,000, providing for interest of 7 percent per annum, payable monthly over a ten year period, with adequate security.” Thus, the court’s order transfers control of Greco’s Auto Parts, Inc., to the plaintiff or, alternatively, requires the defendant to pay funds to the plaintiff, which, in light of the court’s other orders and findings, he does not appear to have.

The court’s order, therefore, in effect, requires the defendant to transfer control of the closely held corporation to the plaintiff, which gives her control over the defendant’s employment and his only significant source of income. Accordingly, the court’s taking the corporation into account in both the property division and in the award of alimony and other payments is, in essence, “double dipping” and inequitable because the corporation provides the only significant stream of income by which the defendant can meet his alimony and other court ordered payment obligations. See Dunleavy v. Dunleavy, Superior Court, judicial district of Danbury, Docket No. 334546 (September 11, 2000); Cardillo v. Cardillo, Superior Court, judicial district of Stamford Norwalk, Docket No. 114248 (June 10, 1992); see also Krafick v. Krafick, 234 Conn. 783, 804-805 n.26, 663 A.2d 365 (1995).

We conclude that the court incorrectly applied the law by basing its financial orders on the parties’ gross incomes and that it abused its discretion by ordering the defendant to pay alimony and other expenses that far exceed his available net income. We further con-elude that the court’s award, in practical effect, equates to “double dipping” and, therefore, is inequitable. Accordingly, we reverse the judgment with respect to all the financial orders. See Morris v. Morris, supra, 262 Conn. 307; Ludgin v. McGowan, supra, 64 Conn. App. 359.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues in accordance with law.

       Also named as defendants were George Greco’s five children from a previous marriage, two trusts George Greco established for two children he lathered with the plaintiff and the LDGG Limited Partnership in which he has an ownership interest. Because only George Greco has appealed, we refer to him as the defendant.

       On the basis of our disposition of the defendant’s third and fourth claims, we need not address the defendant’s other claims on appeal.

       Between 1998 and 1999, the defendant transferred to his children, either directly or via trust, the majority of his stock in Greco’s Auto Parts, Inc., and title to various parcels of real estate related to that business. Those assets were worth more than $1 million.

       One of the defendant’s children, George Greco, Jr., subsequently passed away and the administratrix of his estate was substituted as a party. On November 27, 2001, the administratrix filed an answer to the plaintiffs third amended complaint.

       On May 14, 2001, the court ordered that “the issues of the dissolution of marriage, property and alimony and other claims together with the counts on fraudulent conveyances and the special defenses of the defendant children will be tried to the court. After the court decides these issues and enters judgment, the court will address the issues relative to the defendant children’s counterclaims.”

       We note that the court’s finding that the transfers were not fraudulent is not an issue in this appeal.

       The court found that “[djespite testimony about some income from [the plaintiffs] porcelain doll hobby or business, no income capacity is assigned to the [plaintiff] . . . .”

       We note that our jurisprudence requires the court to consider the statutory criteria set forth in General Statutes § 46b-82 in determining whether alimony shall be awarded, and the duration and amount of the award. Those criteria are “the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes §] 46b-81 . . . .” General Statutes § 46b-82.

       Because the court did not make any finding with respect to the defendant’s net income, there is no evidence as to what the defendant’s after tax net income would be after making the alimony, life insurance and health insurance payments; however, it certainly would not be more than and likely would be less than his gross amount. In his financial affidavit, the defendant stated that his net income is $53,872 per year. If that figure is used, the defendant already is left with a deficit after making only those payments to the plaintiff.

       Specifically, the court ordered the defendant to pay to the plaintiff $100,000 in attorney’s fees at a rate of $20,000 per year.

       We note that although the court made no specific findings with respect to the defendant’s unpaid attorney’s fees, if factored in, that expense would certainly increase the defendant’s deficit. Also, although the court found that the defendant gambles extensively, it did not find that the defendant’s winnings exceeded his losses, thereby, serving as an additional source of income for the defendant.

       In it memorandum of decision, the court stated in relevant part: “[The defendant] is sixty-four years of age, completed the eighth grade . . . and has been engaged in the auto repair and parts business throughout his life. His health is very poor. He suffers from angina and other related health problems which commenced in 1988. After numerous surgical procedures, he remains under the care of various physicians, takes nine different medications and is depressed. It would appear that his ability to work has been seriously compromised.”

       Although the court found that the defendant “receives regular cash gifts of up to $500 from at least one of his children,” it is doubtful that those contributions will continue if the defendant no longer controls Greco’s Auto Parts, Inc. Indeed, in its articulation, the court stated: “The inescapable conclusion in the instant, case is that reserving voting control [in Greco’s Auto Parts, Inc.] was the [defendant’s] way of preserving control over his children in the event they did not do things his way.” Furthermore, in his closing argument, the plaintiffs counsel stated in relevant part: “[The defendant’s] income dramatically increased. . . . Your Honor, that doesn’t happen because you’re doing nothing, it happens because you have control, and it happens because you can impose your will on those around you to pay you those moneys.
      “[W]hen [the defendant] transferred his interest in the corporation [to his children], he didn’t give them a controlling interest, he didn’t give them all of it. I asked him why. He doesn’t know. . . . But, I think I can draw a reasonable inference why he didn’t, Your Honor. I think the reason he didn’t was because he had to have that control. You don’t get a $20,000 raise over two years when you’re doing nothing because your children are being generous to you.” (Emphasis added.)

       In its articulation, the court stated in relevant part: “It became abundantly clear to the court that while the [defendant] transferred virtually the entire equity in the business, he cunningly retained voting control. In the court’s estimation, voting control of a small corporation is often more important than equity interest — such is the case in Greco’s Auto Parts, Inc. Voting control has the ultimate power to elect directors, in effect elect officers, determine policy, set compensation, hire and fire employees, and in numerous other ways dictate the direction of the company. The inescapable conclusion in the instant case is that reserving voting control was the [defendant’s] way of preserving control over his children in the event they did not do things his way.”

       The terms of the promissory note would require the defendant to pay to the plaintiff approximately an additional $34,832.52 per year for ten years.

       The plaintiff contends that the court’s “award of alimony and insurance was reasonable in light of the [defendant’s] underreported income” and that the court could have based its award on the defendant’s earning capacity rather than on his actual net income. Although the court stated that the defendant’s testimony frequently lacked credibility and his financial affidavit had to be amended several times during the trial to conform to the testimony, its memorandum of decision is devoid of any specific finding with respect to the defendant’s alleged unreported income or his earning capacity. “This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did.” (Internal quotation marks omitted.) Parkview Paving Co. v. New Haven, 13 Conn. App. 574, 575, 537 A.2d 1049, cert. denied, 207 Conn. 810, 541 A.2d 1240 (1988). Accordingly, the plaintiff’s contention is without merit.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. JOHNNY J. JOHNSON
    (AC 23967)
    Foti, West and Hennessy, Js.

      Argued December 3, 2003 —
    officially released May 11, 2004

      Avery S. Chapman, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Johnny J. Johnson,

appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a), and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8 (a). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence testimony regarding his alleged gang membership, (2) denied his motion to suppress a victim’s pretrial photographic identification, (3) violated his constitutional right to confrontation and (4) denied his motion for a mistrial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a member of a New Haven street gang known as the Island Brothers. On December 14, 1996, at approximately 2 a.m., the defendant and three other gang members emerged from a tunnel firing bullets into the courtyard of a New Haven housing project. One victim, Jason Smith, died as a result of the gunfire. Two other victims, Marvin Ogman and Andre Clark, suffered serious injuries. Additional facts will be set forth as they become relevant to resolving the defendant’s claims.

I

The defendant claims that the court improperly admitted into evidence testimony regarding his gang membership. He specifically argues (1) that the testimony was not relevant to prove whether he committed the crimes at issue and, furthermore, that the prejudicial effect of such testimony outweighed its probative value because none of the witnesses could establish that he was a known member of the Island Brothers or that he was acting in concert with the Island Brothers on the evening in question, and (2) the testimony amounted to what was essentially uncharged misconduct evidence that did not satisfy any exception to the prohibition against the introduction of uncharged prior misconduct evidence. We disagree with the defendant.

The following additional facts are necessary for our resolution of the defendant’s claim. During the presentation of the state’s case-in-chief, three witnesses testified that the defendant was a member of the Island Brothers gang. On the night in question, several Island Brothers attended a function at the Melebus Club in New Haven. At trial, the state introduced photographs that were taken at the Melebus Club by a professional photographer. Sean Adams, Darcus Henry and Carlos Ashe, who have been convicted of various crimes as a result of the incident at issue; see footnote 1; appear in those photographs; the defendant, however, does not. There was no indication that the defendant was at the Melebus Club that evening. The defendant’s girlfriend testified that the defendant was in her company from approximately 11:15 p.m. on the evening in question until sometime the next morning. Ogman, however, testified that he clearly saw the defendant in the courtyard during the shooting.

The testimony at trial also revealed a strained relationship between the Island Brothers and another New Haven gang, the Ghetto Boys. The victims in the present case, Ogman, Clark and Smith, were all associated with the Ghetto Boys. Clark testified that an ongoing dispute between the rival groups “just got deeper” in December, 1996. Detective Richard Pelletier, a member of the state police gang task force, who was familiar with the defendant as a result of working on the task force, also testified as to the ongoing dispute. He testified that the events of December 4, 1996, may have been retaliation by the Island Brothers for the recent killing of one of its members, sixteen year old Tyrese Jenkins. Pelletier testified that the Island Brothers had decided to kill one Ghetto Boy for every year of Jenkins’ life. In light of that information, the state proffered testimony regarding the defendant’s gang membership, the Island Brothers’ vow to avenge the death of Jenkins and Ogman’s testimony placing the defendant in the housing project, as necessary to show conspiracy and motive.

A

It is well settled that absent a clear abuse of discretion, a trial court’s determination of relevancy will not be disturbed. State v. Perry, 48 Conn. App. 193, 201, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

1

The defendant first claims that the testimony regarding gang affiliation was not relevant because “there was no established membership of the defendant to a gang.” That argument is baseless given that three witnesses testified that the defendant was a member of the Island Brothers gang. We therefore find it unnecessary to review that claim.

2

The defendant next claims that the testimony of Pel-letier relating to the ongoing dispute between the Island Brothers and the Ghetto Boys did not directly implicate the defendant and was therefore irrelevant to material issues and was prejudicial. We disagree with the defendant’s claim and conclude that the court properly found that the evidence of gang affiliation was relevant to prove motive and conspiracy.

The evidence presented showed that the Island Brothers and the Ghetto Boys were feuding, and that the Island Brothers intended to harm members of the Ghetto Boys. In addition, the defendant was shown to be a member of the Island Brothers. In determining the relevancy of the gang evidence, the court aptly stated that “the fact that there are two rival gangs may tend to be evidence bearing on motive, identification and with respect to conspiracy and agreement and the parties knowing each other in one group, and the evidence with respect to gang affiliation is relevant to the issues in this case.” Accordingly, we conclude that it was not a clear abuse of discretion for the court to allow the testimony regarding gang affiliation.

B

The defendant next claims that the evidence showing that he was not in the company of Henry, Adams and Ashe hours before the shooting, coupled with his alibi witness who accounted for his whereabouts during and after the events, effectively demonstrated that he was not present when the shooting occurred. He then argues that because Pelletier’s testimony describing the ongoing dispute between the gangs did not directly implicate him, the testimony served to prejudice the jury unduly against him. In other words, the defendant argues that because the state did not show that he was directly involved in Jenkins’ murder, any testimony about the murder and the Island Brothers gang’s decision to kill Ghetto Boys as retribution was prejudicial in that it would lead to the inference that the defendant had a motive to participate in the events of December 14, 1996. We disagree.

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it 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. . . . The trial court . . . must determine whether the adverse impact of the chai-lenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where iryustice appears to have been done.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 659, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

We conclude that the evidence was not unduly prejudicial to the defendant. Although the testimony that the defendant was a member of a gang that had vowed to kill members of a rival gang and that he was seen participating in the courtyard shooting by one of the victims of that shooting may have been contrary to his defense, we cannot say that the evidence was unduly prejudicial. We agree with the court’s statement that “[t]he jury could reasonably be told that the fact that somebody is a member of a gang is not evidence that they are guilty of anything. He’s not on trial for being a member of a gang, he’s on trial for these specific charges, and if defense counsel . . . can persuade the jury that the defendant was not a member of a gang or that this was not a gang event or that [the] whole business about gang affiliation is totally irrelevant, that may prevail then, but as [it is] for the jury to decide, this is information that should be made available to them.” Accordingly, we conclude that the court did not abuse its discretion in admitting the testimony.

C

The defendant also claims that it was improper for the court to admit evidence of his gang affiliation because it amounted to uncharged misconduct evidence that did not satisfy any exception to the prohibition against evidence of uncharged prior misconduct. We disagree.

“As a general rule, evidence of a defendant's prior crimes or misconduct is not admissible.” (Emphasis in original; internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 191, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997). “It is well settled that evidence of prior misconduct is admissible for the limited purposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design.” State v. Taylor, 239 Conn. 481, 501, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). “The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. . . . Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where an abuse of discretion is manifest or where an injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Adorno, supra, 192.

We conclude that the testimony regarding the defendant’s gang affiliation did not constitute evidence of the defendant’s prior misconduct because it did not show any bad act or criminal conduct on his part. See State v. Brown, 41 Conn. App. 317, 324, 675 A.2d 1369 (1996), rev’d on other grounds, 242 Conn. 445, 700 A.2d 1089 (1997). Moreover, insofar as the testimony associated the defendant with the Island Brothers, such association, by itself, does not demonstrate any bad act or criminal conduct on the part of the defendant. See State v. Taylor, supra, 239 Conn. 502.

II

The defendant next argues that the court improperly denied his motion to suppress Ogman’s pretrial photographic identification. The defendant claims that the photographic identification procedure was unnecessarily suggestive because the photographic array from which he was identified included other members of a gang disliked by Ogman and, therefore, under the totality of the circumstances, the identification was unreliable. We disagree.

The court reasonably could have found the following facts during the hearing on the motion to suppress. During a conversation with Edwin Rodriguez, a detective with the New Haven police department, and John Dalton, an officer with the New Haven police department, Ogman identified Henry, Ashe, Adams and the defendant as the perpetrators of the December 14,1996 shootings. Ogman also stated that he saw a fifth person shooting a weapon from farther away, but he could not make out his face. Thomas Trocchio, a detective with the New Haven police department, then compiled a photographic array that included one photograph of each named suspect placed randomly within a sequence of seven look-alike photographs. Thus, Ogman was to choose the four named suspects from a stack of thirty-two photographs. At the hearing, the state stipulated that at least three of the look-alikes were members of the Island Brothers gang.

The identification procedure took place at a hospital soon after Ogman received medical attention there for gunshot wounds to his right arm and left leg. Trocchio, Rodriquez and Richard Foti, a detective with the New Haven police department, were present. Ogman was handed the stack of thirty-two photographs and asked if he recognized anyone from the shooting. He was not informed as to whether photographs of any of the suspects were contained in the array. Ogman successfully picked out the photographs of the four suspects that he originally named and wrote his name in the margin of each photograph. Ogman also testified that his familiarity with the three additional Island Brothers and nine other faces contained in the array had no bearing on his selection of the four suspects. He stated that he chose only the photographs of the individuals he saw that night. The court found that the identification procedure was not unnecessarily suggestive and denied the defendant’s motion to suppress in a brief oral decision.

We note that “[b]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) Id., 498. The defendant bears the burden of proving that the identification procedures that resulted in his identification violated his due process rights. State v. Sanchez, 69 Conn. App. 576, 580-81, 795 A.2d 597 (2002). To succeed, the defendant must show “first [that] the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) Id., 580. “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. ... If the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable.” (Citation omitted; internal quotation marks omitted.) State v. Taylor, supra, 239 Conn. 499.

On the basis of our review of the record, we conclude that the photographic array presented to Ogman did not constitute an impermissibly suggestive pretrial identification procedure. Taking into account the array and Ogman’s familiarity with the defendant, we agree with the court that there was not a very substantial likelihood of irreparable misidentification because of unnecessary suggestiveness. In this case, the witness named all four shooters prior to the compilation of the array and he picked all four suspects from thirty-two photographs. Furthermore, he testified that although he was familiar with other faces included in the array, and that he saw five people involved in the shooting, he picked out only the four people whose faces he clearly saw. Moreover, we agree with the state that the fact that Ogman may have believed that a particular photograph depicted an Island Brother was not suggestive of anything. The fact that the array included several photographs of Island Brothers not named by Ogman as shooters also was not suggestive of anything. Ogman still had to select the photographs of the four people who were the shooters. As such, because Ogman already knew that he had been shot by Island Brothers, the inclusion of Island Brothers in the array did not suggest which photographs he should select. Accordingly, we need not address the defendant’s claim that the photographic identification was inherently unreliable.

Ill

The defendant’s next claim is that the court denied him his constitutional right to confront witnesses by unduly restricting his cross-examinations of Ogman and Rodriguez. Because the defendant has failed to brief those claims adequately, they are deemed to be abandoned. “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” (Internal quotation marks omitted.) State v. Portee, 55 Conn. App. 544, 557 n.10, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000). In his brief, the defendant cites no law and provides no analysis of his claim. “[Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Id. We therefore will not review those claims.

IV

The defendant’s final claim is that the court improperly denied his motion for a mistrial, in which he alleged (1) prosecutorial misconduct during closing arguments and (2) juror misconduct. We disagree.

At the outset, we set forth our standard of review with respect to the decision to grant or to deny a motion for a mistrial. “The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Taft, 258 Conn. 412, 418, 781 A.2d 302 (2001).

A

The defendant claims that the prosecutor committed misconduct by way of certain statements that he made to the jury during the trial.

“Claims of prosecutorial misconduct trigger a two-pronged inquiry. First, we must examine the allegedly improper conduct to determine if it was, in fact, improper and rose to the level of prosecutorial misconduct. If it did, we will analyze the effect of the misconduct to determine if it deprived the defendant of a fair trial. . . . Generally, [i]n evaluating a prosecutorial misconduct claim, we review whether the record discloses a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. McKiernan, 78 Conn. App. 182, 195-96, 826 A.2d 1210, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003).

The defendant claims that the prosecutor mischaracterized the nature of the weapons used in the shootings by calling them “virtual machine guns.” “In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. ... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) Id., 196.

Our review of the record reveals that the evidence produced at trial showed that one of the weapons involved in this case was an automatic weapon. Edward McPhillips, a firearms examiner in the department of public safety’s forensic laboratory, testified that “[w]ith a full automatic [weapon], when you pull the trigger, the cartridge will continue firing until you release the trigger.” As such, the characteristics of an automatic weapon are similar to that of a machine gun, which is broadly defined by the Merriam-Webster’s New Collegiate Dictionary (10th Ed. 1993) to be “an automatic weapon.” “It is well settled that a prosecutor must not comment on evidence that is not part of the record, nor is he to comment unfairly on the evidence adduced at trial so as to mislead the jury.” State v. McKiernan, supra, 78 Conn. App. 201. Although the actual weapon at issue was an automatic weapon, we cannot conclude that the prosecutor’s isolated statement characterizing that weapon as an “essential machine gun” misled the jury or deprived the defendant of a fair trial.

B

The defendant next argues that the court should have granted his motion for a mistrial because, during a court break, one juror spoke with a person attending the trial. He claims that this action constituted a “breach of the juror’s oath.” He further contends that although the court held a hearing to determine the circumstances of the alleged misconduct, he was entitled to a “fuller hearing” and a canvass of the jurors. We disagree.

The following facts are relevant to our resolution of the defendant’s claim. The verdict was announced on July 8, 2001. On that same afternoon, prior to the announcement of the verdict, the jury took a break from its deliberations. A few of the jurors congregating outside of the courthouse were approached by Lakeya Youins, a friend of the defendant. Youins began to speak to one of the jurors. At that point, the other jurors went inside the courthouse. The defendant learned of that conduct after the verdict was announced and thereafter made an oral motion for a mistrial on the basis of that occurrence. The defendant then filed a motion for reconsideration of the court’s denial of his motion for a mistrial. The motion for reconsideration was granted, and an evidentiary hearing regarding the claimed juror misconduct was held by the court on August 7 and 8, 2001.

Several witnesses testified at the evidentiary hearing, including Youins; the juror at issue; the victim, Clark; Inspector John Kosko; Pelletier; a judicial marshal; and the defendant’s mother. The court questioned all of the witnesses, and allowed input from the state and the defendant. During her testimony, Youins alleged that within the course of her conversation with the juror, the juror revealed that he was familiar with some of the parties involved in the case, a detail he did not reveal dining voir dire, and that he had spoken with Clark in the presence of other jurors at some stage of the proceedings. She further testified that she bears a tattoo depicting a palm tree, grass and water on her right shoulder. Pelletier explained that the tattoo, sometimes accompanied by the words Island Brothers, is a symbol of the Island Brothers gang. Pelletier further testified that from the level of involvement he had observed Youins to have with the Island Brothers, she seemed to be, at the very least, an informal member of the gang. He also revealed that the fathers of her two children are Island Brothers, thus indicating an additional level of attachment to the gang.

The juror explained that when Youins began to speak to him, he ended the conversation because he was prohibited from discussing the case. He further testified that he did not speak with Clark at any time throughout the proceedings. Clark himself testified that he did not speak with any of the jurors during the course of the trial and that he was not at the courthouse on the day the verdict was announced.

On the basis of the testimony presented, the court found that “[the juror] did not speak with Clark at any time between the time the juror was selected and the verdict was rendered. The court also finds that the juror did not speak with Youins, except to tell her that he could not speak to her. The court also finds that the juror . . . knew Tyrese Jenkins, and Tyrese Jenkins was the victim of a shooting and during the trial evidence was introduced as to that incident. The court finds that this knowledge by the juror is extrinsic evidence and, although this is presumptively prejudicial, the court finds in this case that the juror was in fact not prejudiced. This defendant has failed to prove actual bias against the defendant resulted from that knowledge by the juror.”

1

“It has long been the law of this state that jurors shall not converse with any person [who is] not a member of the jury, regarding the cause under consideration .... [These] rules are of vital importance to assure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment.” (Citations omitted; internal quotation marks omitted.) State v. Rhodes, 248 Conn. 39, 46-7, 726 A.2d 513 (1999).

“It is well established . . . that not every incident of juror misconduct requires a new trial. . . . [D]ue process seeks to assure a defendant a fair trial, not a perfect one. . . . [T]he constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. . . . The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . The defendant has been prejudiced if the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror. . . . We have previously held that . . . [w]here . . . the trial court was in no way responsible for the juror misconduct ... a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Citations omitted; internal quotation marks omitted.) Id., 47.

In this case, the court reasonably concluded that the juror’s conversation with Youins was not prejudicial to the defendant. Indeed, the court found that the juror spoke with Youins for the sole purpose of explaining that he could not talk to her. That limited conversation can hardly be described as a “breach of the juror’s oath” because no substantial discussion of the trial or of the jury’s secret deliberations took place. The defendant’s reliance on Hamilton v. Pease, 38 Conn. 115 (1871), is misplaced because that case does not, as the defendant contends it does, stand for the proposition that any conversation between a juror and a third party is a breach of the juror’s oath. Rather, Hamilton evinces the same doctrinal principle followed today, namely, that in a circumstance in which a juror has “ ‘conversed freely about the case with a person not of the jury’ id., 117; a verdict may be set aside, but only where harm from such conduct is shown. Id., 118. This is not such a case and, therefore, we are satisfied that the court did not abuse its discretion in concluding that the defendant had suffered no prejudice from the alleged misconduct. Accordingly, we reject the defendant’s claim that he is entitled to a new trial on the ground of juror misconduct.

2

We now turn our attention to the defendant’s argument that he was entitled to a “fuller hearing” on the issue of juror misconduct. As an initial matter, we note that when a trial court is confronted with an allegation of juror misconduct, it “must conduct a preliminary inquiry, on the record . . . regardless of whether an inquiry is requested by counsel.” State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc). “Although the form and scope of such an inquiry lie within a trial court’s discretion . . . [t]hat form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” Id.

Applying those principles, we conclude that the defendant has failed to demonstrate that the inquiry conducted by the court was inadequate to safeguard his right to a trial before an impartial jury. Quite logically, the court began its investigation into the alleged misconduct by questioning the two parties involved in the allegedly improper conversation. As a result of that questioning, the court found that there was no improper conversation between the juror and Youins, and that none of the other jurors overheard their conversation. Consequently, the court appropriately determined that any inquiry of the other jurors was unnecessary. As such, we conclude that the court did not abuse its discretion by denying the motion for a mistrial on the ground that a “fuller hearing” was required.

The judgment is affirmed.

In this opinion the other judges concurred.

       Sean Adams, Darcus Henry and Carlos Ashe each have been convicted of the crimes of murder, conspiracy to commit murder and assault in the first degree as a result of the incident. See State v. Ashe, 74 Conn. App. 511, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003); State v. Adams, 72 Conn. App. 734, 806 A.2d 111, cert. denied, 262 Conn. 916, 811 A.2d 1292 (2002); State v. Henry, 72 Conn. App. 640, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

       The following colloquy occurred during the state’s direct examination of Clark:
      “[The Prosecutor]: Now, again, according to your testimony about who you saw running by and who had guns in their hands, there’s three people you’re sure of and then a pair of people that you’re not sure of between, correct?
      “[The Witness]: Correct.
      “[The Prosecutor]: Darcus Henry, Sean Adams, Carlito Ashe and then either [the defendant] or Gaylord Salters?
      “[The Witness]: Right.
      “[The Prosecutor]: Were all five of those people members of the Island [Brothers] at that time?
      “[The Witness]: Yeah.”
      During the state’s direct examination of Ogman, he identified Darcus Henry, Sean Adams, Carlos Ashe and the defendant as his assailants. Shortly thereafter, the following colloquy, in relevant part, occurred:

        “ [The Prosecutor]: Now, you’ve named four people here. Did you associate those four people in any way with a particular group?
      “[The Witness]: Yes, I do.
      “[The Prosecutor]: And what was that group?
      “[The Witness]: The Island Brothers.
      “[The Prosecutor]: What’s the Island Brothers?
      “[The Witness]: It’s a gang.
      “[The Prosecutor]: All right, and centered where?
      “[The Witness]: [I]n New Haven.”
      As part of its case-in-chief, the state introduced the testimony of Detective Richard Pelletier. Pelletier was a member of the state police gang task force from approximately 1995 until 1999. Pelletier testified that he became familiar with the Island Brothers gang and the defendant during his work on the task force. The following colloquy occurred:
      “[The Prosecutor]: Was [the defendant] a member of the Island Brothers in December of 1996?
      “[The Witness]: Yes.
      * ** *
      “[The Prosecutor]: Now, when you say that [the defendant] was a member of the Island Brothers, is that based upon only the fact that he lived out there?
      “[The Witness]: No ... .
      “ [The Prosecutor]: Are there other reasons other than his association with this group of people that caused you to say that he’s an Island Brother?
      “[The Witness]: Yes.
      “[The Prosecutor]: And what are those reasons?
      “[The Witness]: My conversations with him ....
      “[The Prosecutor]: What was the nature of those conversations that lead you to this conclusion that he was among those who were full members of the Island Brothers?
      “[The Witness]: They, the members, including [the defendant], told us they are the Island Brothers.
      “[The Prosecutor]: Okay. So, directly out of his own mouth?
      “[The Witness]: Yes, sir.”

       “Charles Green and Duane Clark, who were members of . . . the Ghetto [Boys], had been arrested In connection with Jenkins’ death.” State v. Ashe, 74 Conn. App. 511, 515 & n.7, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003). “Green subsequently was convicted of Jenkins’ murder. See State v. Green, 62 Conn. App. 217, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002). Duane Clark was convicted of criminal possession of apistol or revolver. State v. Clark, 62 Conn. App. 182, 774 A.2d 183 (2001), aff'd, 260 Conn. 813, 801 A.2d 718 (2002).” State v. Ashe, supra, 515 n.7.

       For clarity’s sake, we note that although the defendant’s objection to the statement, on hearsay grounds, was overruled at trial, he does not squarely claim on appeal that the court improperly admitted the statement. He does, however, allude to it in his brief, and we therefore address the issue to the extent that it will aid in our analysis. As such, we conclude that Pelletier’s testimony was not inadmissible hearsay because it supported the opinion he previously had expressed as to the gangs’ hostile relationship. “Police officers must rely on communications with gang members to gather intelligence and for opinions about gang activity because most gangs do not have bylaws, organizational minutes or any other normal means of identification.” State v. Henry, 72 Conn. App. 640, 658, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002); see also State v. Singh, 59 Conn. App. 638, 650-54, 757 A.2d 1175 (2000), rev'd on other grounds, 259 Conn. 693, 793 A.2d 226 (2002).

       See footnote 2.

       In its charge to the jury, the court stated in relevant part: “During the trial, you have heard evidence of alleged gang membership or affiliation on the part of the defendant and evidence of a dispute between two gangs. The defendant is not on trial for gang membership, which standing alone is not a crime. You cannot consider gang membership, if you find it exists, as evidence of bad character or of a tendency to commit criminal acts. . . . It is entirely up to you to decide whether or not the defendant and others were members of a gang and, if so, what relevance, if any, that evidence

        has to conspiracy, motive or identify and what weight to give that evidence, if any.”
      “It is well settled law that jurors are presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Vasquez, 79 Conn. App. 219, 242, 830 A.2d 261, cert. denied, 266 Conn. 918, 833 A.2d 468 (2003).

       It is unclear from the record whether the other nine people were members of the Island Brothers or if Ogman knew them in some other capacity.

       The court stated in relevant part: “The fact that the Island Brothers— several pictures were pictures of members of the Island Brothers — the court finds to be totally irrelevant The identification was made by the witness without any suggestions by the police either prior to the showing of the array or during the showing of the array, and he was given thirty-two pictures, which he went through one by one, and when he recognized the picture of one of the shooters, he handed it over to the police officer present and he signed it . . . and positively identified this defendant as one of the shooters.”

       We further note that we agree with the state regarding the factual basis of the defendant’s claim concerning Detective Rodriquez. The defendant’s claim is that during cross-examination, the detective displayed a lack of recall as to the certainty of Ogman’s identification of the defendant and that the defendant was denied the opportunity to refresh Rodriguez’ recollection, thus inhibiting the right to confrontation. That claim is baseless and fails. Our review of the record shows that Rodriguez answered the defendant’s question twice before the defendant sought to refresh his recollection. As there was no need to refresh Rodriguez’ recollection, we could not conclude that the evidentiary ruling was an abuse of the court’s discretion.

       The defendant claims that the prosecutor mischaracterized the extent of the injuries to the victims and interjected improper comments regarding the defendant’s sexual practices with more than one partner. The defendant offers no citation or discussion of any authority to support those claims or to show how the statements denied him a fair trial. We decline, therefore, to review those claims, as they have been briefed inadequately. See Ham v. Greene, 248 Conn. 508, 528-29 n.11, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254 (1999); Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 465 n.11, 704 A.2d 222 (1997); State v. James, 237 Conn. 390, 396 n.10, 678 A.2d 1338 (1996).

       Our review of the transcript reveals that the prosecutor actually used the phrase “essential machine gun,” rather than “virtual machine guns,” as the defendant contends. That difference in terminology does not affect our analysis of the claim.

       To the extent that the defendant alleges that an alternate juror engaged in misconduct, we decline to review the claim. We agree with the state that any claim regarding that juror was abandoned or implicitly withdrawn because the defendant had ample opportunity to develop it at the evidentiary hearing and failed to do so. See State v. Jackson, 73 Conn. App. 338, 357-58, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002).

       The defendant appears to raise an evidentiary claim regarding the admission of a statement that was signed by Youins. We decline to review the claim, as it has been briefed inadequately. “It has long been our strong policy that if evidentiary rulings claimed to be improper are to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice. ... A party’s mere assertion in [its] brief that the evidence was improperly excluded . . . will not be sufficient. . . .” (Internal quotation marks omitted.) State v. Duteau, 68 Conn. App. 248, 261, 791 A2d 591, cert. denied, 260 Conn. 939, 835 A.2d 58 (2002).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. BRISTOUT BOURGUIGNON
    (AC 22430)
    Foti, Bishop and West, Js.
    Argued December 9, 2003 —
    officially released May 11, 2004

      Bristout Bourguignon, pro se, the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

In this appeal from his conviction of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21 and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1), the defendant, Bristout Bour-guignon, raises claims of (1) ineffective assistance of counsel, (2) prosecutorial misconduct and (3) improper jury instructions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was employed by an electrical contractor. On July 1, 2000, the defendant broke into his employer’s home and destroyed many of the items contained therein. The employer’s minor children were home at the time of the incident and hid in the basement after hearing the sound of breaking glass. The police arrived shortly thereafter and confronted the defendant exiting the house while he was armed with a rifle. The defendant appeals from his conviction.

I

The defendant first claims that his court-appointed counsel rendered ineffective assistance because he was biased, racist, prejudiced and corrupt. We decline to review the claim.

“Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for writ of habeas corpus or a petition for a new trial, not a direct appeal. . . . Absent the. evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.” (Citation omitted; internal quotation marks omitted.) State v. Charles, 56 Conn. App. 722, 729-30, 745 A.2d 842, cert. denied, 252 Conn. 954, 749 A.2d 1203 (2000). Accordingly, we decline to review the claim.

II

The defendant next claims that three instances of prosecutorial misconduct deprived him of a fair trial. Specifically, he claims that the prosecutor (1) failed to disclose favorable evidence to the defense, (2) failed to provide the defendant with a copy of a videotape that was admitted into evidence and (3) failed to provide him with copies of photographs that were admitted into evidence. We decline to review that claim as well.

The defendant did not object on those grounds at trial, nor did he adequately brief his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine; Practice Book § 60-5; on appeal. He made only one passing reference to Golding and plain error review in his reply brief and only with respect to the claim of prosecutorial misconduct. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being abandoned. . . . [B]ecause the defendant has neglected to analyze the claim of plain error, he has failed to demonstrate a manifest injustice. ... In his brief, the defendant makes only passing references to Golding and has provided us with no analysis of its four prongs. We will not engage in Golding or plain error review on the basis of such an inadequate brief.” (Citation omitted; internal quotation marks omitted.) State v. Ankerman, 81 Conn. App. 503, 508, 840 A.2d 1182 (2004).

Moreover, even if a claim of plain error had been briefed adequately, this case is not one of those “truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Nichols, 81 Conn. App. 478, 484, 840 A.2d 54 (2004). On the basis of the defendant’s argument, it appears that he had knowledge of the alleged police report and its contents at the time of his trial. In addition, the state filed a disclosure on July 18,2001, making the videotape available for review and copying. Defense counsel also was provided with copies of the photographs on that same date.

Ill

Finally, we also decline to review the defendant’s claim of improper jury instructions because he made no objection to them at trial, did not file requests to charge and does not seek Golding or plain error review on appeal.

The judgment is affirmed.

       The defendant contends that the state had evidence, specifically, apolice report, showing that he was coerced by his employer to “assassinate” his employer’s wife. That incident allegedly occurred prior to the defendant’s visit to his employer’s home on July 1, 2000. We note that the defendant has appealed pro se and that we understand him to argue, on the basis of a careful examination of his briefs, that he, his trial counsel, the prosecutor and the court all knew of that alleged incident at trial. He argues that the prosecutor failed to disclose thepolice report to him because the prosecutor, like everyone else, including the court, considered the alleged event to be irrelevant.

       “Evidence known to the defendant or his counsel ... is not considered suppressed as that term is used in [Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)].” (Internal quotation marks omitted.) State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).