author: ALVORD, J.

text:
    RICHARD LAPOINTE v. COMMISSIONER OF CORRECTION
    (AC 33452)
    Alvord, Bear and Pellegrino, Js.

      Argued May 18
    officially released October 9, 2012

      Paul Casteleiro, pro hac vice, with whom was W. James Cousins, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, Michael O’Hare, senior assistant state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

ALVORD, J.

The petitioner, Richard Lapointe, appeals from the judgment of the habeas court denying his second amended petition for a second writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his actual innocence and ineffective assistance of counsel claims. We conclude that the court properly determined that the petitioner failed to prove his actual innocence claim, but we agree with the petitioner that the state’s suppression of certain material evidence deprived him of a fair trial and that he was prejudiced by his prior habeas counsel’s failure to pursue that issue at the first habeas proceeding. Accordingly, we reverse in part the judgment of the habeas court and order a new trial.

The record reveals the following facts and procedural history. On March 8, 1987, the petitioner, his wife and their son visited the victim, Bernice Martin, who was his wife’s eighty-eight year old grandmother, from approximately 2 p.m. to 4 p.m. at her apartment in Manchester. It was an approximate ten to fifteen minute walk from where the petitioner and his family lived to the victim’s apartment. At approximately 5:45 p.m. that afternoon, Nathalie M. Howard, the victim’s daughter, was driving through the neighborhood. She saw the victim walking from her apartment toward a garbage can. Later that evening, Howard telephoned the victim twice, but there was no response. She first called at approximately 7:55 p.m. and tried again shortly after 8 p.m. Being concerned, Howard telephoned the petitioner’s residence, and the petitioner offered to walk over to the victim’s apartment to check on her well-being.

At 8:27 p.m. that evening, the petitioner dialed 911 to report a fire at the victim’s apartment. Manchester firefighters responded almost immediately and removed the victim from the smoke-filled apartment. When brought outside, the victim’s body was partially clothed. Strips of fabric had been knotted together and tied tightly around her neck. She also had other fabric tied loosely about her wrists and her abdomen. Paramedics were unable to resuscitate the victim at the scene. She was transported to Manchester Hospital and was pronounced dead shortly after her arrival.

The associate medical examiner, Arkady Katsnelson, performed an autopsy on the victim and determined that she had suffered a three inch deep stab wound to her abdomen and ten less severe stab wounds to her back. He also determined that she had been asphyxiated by pressure to the right side of her neck with a blunt object; she was not manually strangled. Katsnelson observed lacerations and contusions to the victim’s vaginal area as well as premortem first and second degree bums on various parts of her body. His conclusion as to the cause of death was a combination of asphyxia by strangulation and smoke inhalation.

The police investigation of the victim’s homicide remained open and unresolved for more than two years. In March, 1989, the case was reassigned to Detective Paul Lombardo. Lombardo decided to reinterview individuals who previously had given statements and asked the petitioner to come to the police station for further questioning on July 4, 1989. The petitioner arrived at the station shortly before 4 p.m. While the petitioner was being interrogated by Lombardo, Detective Michael Morrissey went to the petitioner’s home and interviewed his wife, Karen Lapointe, now Karen Martin. Unbeknownst to Karen Martin, Morrissey was wearing a hidden microphone, and their conversation was being monitored and recorded. When Morrissey’s two hour interview with Karen Martin concluded, he returned to the police station. By that point in time, the petitioner had given two written statements to Lombardo. The statements, however, lacked detail, and Lombardo asked Morrissey to continue the petitioner’s interrogation. Morrissey obtained a third written statement from the petitioner. After more than nine and one-half hours at the police station, the petitioner was told to return to his home. An arrest warrant was issued, and the petitioner was taken into custody on July 5, 1989.

The petitioner was convicted by a jury of capital felony, arson murder, felony murder, murder, arson in the first degree, assault in the first degree, sexual assault in the first degree, sexual assault in the third degree and kidnapping in the first degree. The petitioner was sentenced to life in prison without the possibility of release. On direct appeal, the petitioner claimed that the trial court improperly (1) failed to suppress the oral and written statements he gave to the Manchester police officers, (2) concluded that the police were not required to record electronically all confessions of detained suspects when feasible and (3) found that a state’s witness was unavailable at trial and admitted an audio recording of that witness’ testimony from a prior hearing. Our Supreme Court affirmed the judgment of conviction. State v. Lapointe, 237 Conn. 694, 695-96, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).

Following his unsuccessful appeal, the petitioner’s first habeas counsel, Henry Theodore Vogt, filed a petition for a writ of habeas corpus. Vogt filed several amendments to the petition, and the matter came to trial on February 23,2000. The petitioner’s claims before the first habeas court were as follows: (1) actual innocence premised on the inability of the petitioner physically and intellectually to carry out and to conceal the crimes for which he had been convicted; (2) prosecu-torial impropriety in suppressing a notebook that contained Lombardo’s notes from the homicide investigation; (3) discrimination by the state on the basis of the petitioner’s physical and mental disabilities; (4) ineffective assistance of trial counsel, Attorneys Patrick Culligan and Christopher Cosgrove, for their failure, inter alia, to procure the Lombardo notebook, to retain appropriate experts for the defense at trial and to argue that men’s gloves and certain hairs of unknown origin that had been found at the crime scene demonstrated that the petitioner was innocent of the charged crimes; and (5) ineffective assistance of appellate counsel.

After Vogt filed his posttrial brief, Attorney W. James Cousins attempted to file an appearance on behalf of the petitioner in lieu of Vogt’s appearance. Vogt objected pursuant to Practice Book § 3-8. Before the court ruled on Vogt’s objection, Cousins filed several motions. Cousins moved to open the evidentiary portion of the trial, moved to admit Paul Casteleiro, an attorney licensed to practice law in New Jersey, as counsel pro hac vice and moved to strike Vogt’s posttrial brief. Lapointe v. Commissioner of Correction, 67 Conn. App. 674, 677, 789 A.2d 491, cert. denied, 259 Conn. 932, 793 A.2d 1084 (2002). Ultimately, the first habeas court ruled that Vogt would remain in the case to file a reply to the respondent’s posttrial brief, if he chose to do so, but that his services as counsel to the petitioner would be concluded upon the filing of that reply. Id., 677-78. Further, the court allowed the pleadings that had been filed prematurely by Cousins to remain as part of the court file, granted the motion to admit Casteleiro pro hac vice and denied the request to present additional evidence. Id., 678.

After concluding that the petitioner “failed to prove by the appropriate standards” any of the five claims in his petition, the first habeas court, Freed, J., dismissed his first petition for a writ of habeas corpus. The petitioner appealed from the judgment of the first habeas court. Then represented by Cousins and Casteleiro, the petitioner did not contend that the first habeas court improperly dismissed the petition on the basis of the evidence that had been presented to that court. Rather, the petitioner claimed that the first habeas court improperly denied his multiple motions to open the evidentiary portion of the first habeas hearing and failed to grant him a new trial because Vogt had rendered ineffective assistance during that first habeas trial. Lapointe v. Commissioner of Correction, supra, 67 Conn. App. 678. This court concluded that the first habeas court did not abuse its discretion in refusing to allow additional evidence after the hearing had concluded; id., 679; and further determined that a claim of ineffective assistance of habeas counsel was not properly before the court because an appellate tribunal cannot find facts. Accordingly, the judgment of the first habeas court was affirmed. Id., 679-81.

In August, 2002, the petitioner filed his second petition for a writ of habeas corpus. He alleged that his previous habeas counsel, Vogt, failed to address issues concerning (1) the suppression of exculpatory evidence, (2) the ineffective assistance of his trial counsel and (3) the effect of newly discovered evidence relating to Dandy-Walker Syndrome. Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 387, 404, 966 A.2d 780 (2009). After the close of the petitioner’s case, the respondent commissioner of correction moved for a judgment of dismissal for failure to establish the prima facie elements of the petitioner’s claims pursuant to Practice Book § 15-8. The court, Fuger, J., granted the motion as to all three counts, and the petitioner appealed from that judgment to this court. Id. We affirmed in part and reversed in part the judgment of dismissal. Specifically, we reversed the judgment on count one as it related to a potentially exculpatoiy expert opinion contained in a note written by Detective Michael Ludlow (Ludlow note) regarding the bum time of the fire set at the victim’s apartment; id., 396-97, 404; and we further reversed the court’s judgment on those portions of count two concerning trial counsel’s failure to utilize evidence to prove the factual unreliability of the petitioner’s inculpatory statements to the police. The case was remanded to the habeas court for further proceedings. Id., 404.

On remand, Judge Fuger declared a mistrial as to the issues remanded by this court and disqualified himself from any farther proceedings in the petitioner’s matter. The case then was assigned to the present habeas court (second habeas court), Nazzaro, J., to adjudicate the remanded claims. With permission of the second habeas court, the petitioner was allowed to amend his second petition for a writ of habeas corpus to include a claim of actual innocence based on newly discovered DNA evidence. The operative three count complaint set forth the following three claims: (1) Vogt provided ineffective assistance as first habeas counsel by failing to raise as an issue the state’s suppression of its arson expert’s opinion that the bum time of the fire set in the victim’s apartment was between “30-40 mins. Poss.”; (2) Vogt provided ineffective assistance as habeas counsel by failing to prove that Culligan and Cosgrove, the petitioner’s trial counsel, provided ineffective assistance as trial counsel by failing to utilize available evidence to demonstrate the factual unreliability of the petitioner’s incul-patory statements to the police; and (3) the petitioner was actually innocent of the crimes for which he was convicted as evidenced by DNA testing on gloves and a pubic hair collected at the crime scene.

During the nine day trial, the second habeas court heard testimony from eighteen witnesses, including Vogt, Culligan, Cosgrove, Morrissey and Ludlow. Stephen Igoe, the state’s fire expert who had testified at the criminal trial, also testified at the second habeas proceeding. The petitioner claimed that the information in the Ludlow note regarding the bum time came from Igoe. Other witnesses at the second habeas proceeding included fire investigators and arson experts, who specialized in the reconstruction of fires and explosions, a criminalist, various experts in DNA analysis and Karen Martin. More than 200 exhibits were admitted as full exhibits, including transcripts from the trial and first habeas proceeding, poliee reports, and statements from witnesses obtained during the homicide investigation. The parties filed simultaneous posttrial and reply briefs.

The second habeas court issued its memorandum of decision on April 15, 2011. After summarizing the testimony of the witnesses for the petitioner and the respondent, the court rejected the petitioner’s actual innocence claim. Although the court found that the petitioner had presented newly discovered evidence with respect to DNA analysis, it concluded that the results were unreliable, particularly as to the pair of gloves, because of contaminated or potentially contaminated DNA samples. With respect to the pubic hair, the court stated that it could not be determined with any degree of certainty how the hair came to rest on the blue sweater. Although the DNA analysis excluded the petitioner as a donor, the court reasoned that the hair could have come from the perpetrator or it could have been transferred to the crime scene in a manner unassociated with the attack on the victim.

The second habeas court also rejected the petitioner’s claims of ineffective assistance of habeas and trial counsel. The court, bound by the conclusion of this court in Lapointe v. Commissioner of Correction, supra, 113 Conn. App. 390-92, treated the Ludlow note as potentially exculpatory and assumed that Vogt’s performance was defective for failing to pursue that issue as a claim in the first habeas proceeding. The court determined, however, after evaluating the testimony of the forensic scientists on bum time, that the respondent’s expert was “more persuasive” in this “contest among experts.” The court also noted that the experts were unable to determine the precise time that the fire had been set. Accordingly, the court concluded that the evidence regarding bum time was not material and that the petitioner failed to prove that he was prejudiced by Vogt’s deficient performance with respect to the suppressed Ludlow note.

Finally, the second habeas court found that the petitioner failed to prove that habeas and trial counsel were ineffective for failing to utilize the evidence admitted at trial to demonstrate the unreliability of the petitioner’s inculpatory statements to the police. The court agreed with the respondent’s argument that the gravamen of the petitioner’s claim was that trial counsel should have done more to emphasize or to highlight the state’s evidence that was inconsistent with the petitioner’s statements. It was the court’s conclusion that the evidence itself made the discrepancies readily discemable: “The discrepancies between the petitioner’s statements and evidence in the victim’s apartment necessitated little additional emphasis from trial counsel, and the court is very hard pressed to somehow fault Attorney Vogt’s decision not to dwell on such a claim.” Accordingly, the second habeas court denied the petitioner’s second petition for a writ of habeas corpus. This appeal followed.

I

We first address the petitioner s claim that the second habeas court improperly rejected his actual innocence claim. In the third count of his second amended petition for a writ of habeas corpus, the petitioner alleged actual innocence due to new DNA testing conducted on a pair of men’s gloves and a pubic hair recovered from the crime scene. He claims that the testing results excluded him as the perpetrator of the crimes for which he was convicted. Specifically, the petitioner argues that because mitochondrial DNA evidence established that the pubic hair found on the victim’s blue sweater was neither the victim’s nor the petitioner’s pubic hair, it “defies logic” that a pubic hair of unknown origin could have been deposited innocently at the crime scene. With respect to the DNA testing on the gloves, the petitioner argues that the court improperly concluded that the method of testing was not widely accepted in the forensic community and not accepted in postconviction criminal matters.

The following additional facts are relevant to the petitioner’s claim. The pubic hair retrieved from the victim’s blue sweater, which was located on the floor near the bed at the crime scene, was subjected to mitochondrial DNA testing. The DNA analysis of the pubic hair excluded the victim and the petitioner as the donor. The second habeas court credited the testimony of the experts with respect to that conclusion.

With respect to the testing of the gloves, Jody Hynds, a forensic DNA consultant, testified how she collected the samples. She stated that she tinned each glove inside out and used a scalpel blade to scrape material for DNA analysis. Using a postamplification cleanup procedure, with the low quantity of available DNA, Hynds concluded that the petitioner was not a contributor to the DNA retrieved from either the right or left glove. The testing of the sample from each glove revealed a partial mixed DNA profile, which indicated that more than one individual contributed to the extracted scrapings. Hynds testified that contamination is an important concern when utilizing such a procedure and that the results from the testing would not indicate how old the DNA was or when it had been deposited on the gloves. She also testified that it is possible for an individual to transfer his or her DNA to a glove simply by putting the glove on one’s hand.

One of the respondent’s witnesses, a court officer for criminal matters at the Superior Court for the judicial district of Hartford, testified that members of the public are permitted to handle evidence that has been admitted at a criminal trial, after the clerk’s office first segregates any evidence sealed by statute or court order. Plastic or latex gloves are available for anyone handling the evidence who chooses to use them. She testified that evidence from the petitioner’s criminal case had been stored at the courthouse and had been available for examination by the public. Another witness for the respondent, a reporter for a local Manchester newspaper, testified that in 1994, he viewed the evidence from the petitioner’s criminal case at the clerk’s office and slipped the evidence gloves on his own hands without using latex gloves.

Carll Ladd, the supervisor of the DNA section of the state forensic laboratory, testified that he did not consider the use of post-amplification cleanup procedures to be suitable for forensic applications because of concerns relating to the relevance and reliability of such methods. Ladd also stated that such procedures increase the risk of contamination. He particularly was concerned about the results from the gloves in the present case because they had been handled without precautions such as latex gloves and particle masks. According to Ladd, placing one’s hands in the gloves could add to the DNA profile or mask whatever had been there in the first place, thereby making the findings invalid.

Given this background, we now set forth the standard for review in determining whether this habeas petitioner has met the standard of proof with respect to his actual innocence claim. “In consideration of a proper balance of the interests at stake in the evaluation of a freestanding claim of actual innocence, of the well established jurisprudence regarding the functions of an appropriate burden of proof for a particular category of case, and of the remedy that would follow from a determination in a habeas proceeding of actual innocence, we conclude that the most appropriate standard of proof is as follows. First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.” Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997). “Our use of the term ‘actual innocence’ is of paramount significance. Actual innocence, also referred to as factual innocence . . . is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt. . . . Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.” (Citations omitted.) Gould v. Commissioner of Correction, 301 Conn. 544, 560-61, 22 A.3d 1196 (2011).

In the present case, the second habeas court concluded that the petitioner failed to meet his burden of proof because none of the DNA evidence rose to the level of being clear and convincing evidence of factual innocence. Although the pubic hair was on the victim’s sweater and the DNA analysis excluded the petitioner as its donor, the evidence did not clearly and convincingly demonstrate that its donor was the perpetrator. As stated by the court, it is possible that the transfer of the pubic hair occurred in some manner unassociated with the attack on the victim. With respect to the gloves, the court heard testimony as to the unreliability of the results of postamplification cleanup procedures. The DNA testing did not exonerate the petitioner, particularly given the fact of contamination or potential contamination by at least one individual who put the gloves on his own hands without the protection of latex gloves. The court summarized its reasoning as follows: “[T]he fact that no direct link via DNA can be established between the petitioner and the gloves does not prove that the petitioner did not commit the assault and murder.”

We agree that the absence of DNA or other evidence connecting the petitioner to the pubic hair and gloves does not amount to proof of actual or factual innocence under the circumstances of this case. The petitioner’s claim on appeal that the second habeas court improperly rejected his actual innocence claim fails under the standard set forth in Gould v. Commissioner of Correction, supra, 301 Conn. 559-61.

n

We next address the petitioner’s claim that the second habeas court improperly determined that prior habeas counsel did not provide ineffective assistance by failing to pursue the claim that the state’s suppression of exculpatory material, the Ludlow note, deprived him of a fair trial. The court rejected that claim, concluding that the bum time referenced in the Ludlow note was not material and that the petitioner was not prejudiced by Vogt’s deficient performance because none of the experts could determine the precise time that the fire was set.

The following additional facts are necessary for the proper resolution of this claim. At the time of the victim’s homicide, Ludlow was a detective with the Manchester police department and was assigned as the evidence officer for the crime scene. He subsequently assumed the position of case officer, which meant that he was responsible for the entire criminal investigation. A few days after the homicide, Ludlow had conversations with two state fire marshals who were assisting with the investigation. Ludlow took notes and wrote “CSP,” which stood for Connecticut State Police, and “Steve Igoe” and “Joe Roy,” the names of the state fire marshals. Underneath those notations on the Ludlow note, the words: “30-40 mins. Poss.” were written. The numbers “30” and “40” were underscored twice. Ludlow testified that the notation “[p]oss.” meant “possible” and that the times represented the minimum amount of time that the fire could have been burning before the first responding firefighters arrived at the victim’s apartment. At the time of the second habeas trial, Lud-low stated that he could not remember who gave him the bum time information. He admitted, however, that he was not an expert on fires and that he would not have made that estimate on his own. He testified that he would have asked one of the experts for the bum time if he was trying to determine a window of time within which the fire could have been started. Ludlow also acknowledged that at the time of the first habeas proceeding, he testified that he had obtained the information as to a possible bum time from either Igoe or Roy.

The Ludlow note was first disclosed to defense counsel in 1999, after the petition for habeas corpus had been filed in the first habeas action. Culligan and Cos-grove both testified that they had not seen the Ludlow note prior to the petitioner’s criminal trial in 1992. Vogt, after receiving the Ludlow note and other materials, amended the petition to allege the state’s failure to disclose or to produce the Ludlow note as Brady material, as required by the constitutions of the United States and Connecticut. He did not, however, pursue that issue during the first habeas trial. The first habeas court, in its memorandum of decision, did not address the claim regarding the Ludlow note because it deemed that claim to have been abandoned.

Vogt’s failure to pursue the claim that the state suppressed the Ludlow note was alleged to be ineffective assistance of counsel in the second habeas proceeding. During the second habeas trial, Vogt testified that he had not pursued that claim because he did not believe the notation as to bum time in the Ludlow note to be exculpatory. Culligan and Cosgrove, in their testimony before the second habeas court, opined that the Ludlow note was exculpatory and that the information could have been used by defense counsel at the criminal trial to buttress the petitioner’s alibi defense. Culligan and Cosgrove farther testified that if the Ludlow note had been disclosed to defense counsel prior to the jury trial, their strategy would have changed.

Karen Martin was not called as a witness in the petitioner’s criminal trial. Culligan stated that Karen Martin and the petitioner were divorced by that time and that the working relationship between her and the defense was no longer a good one. Although he discovered prior to trial that Morrissey had interviewed her on July 4, 1989, and that she had expressed her support for the petitioner at that time, and although he knew that she had testified at the suppression hearing that the only time the petitioner was out of her sight on the night of the homicide was when she bathed their son between 6:15 p.m. and 7 p.m., Culligan decided not to compel her testimony. He testified that he was concerned about her attitude toward the petitioner. Further, he was unaware of the existence of the Ludlow note and the importance of the start time of the fire to support the petitioner’s alibi defense. Culligan testified that if he had known that Igoe, the state’s fire expert, gave a bum time of thirty to forty minutes, he would have called Karen Martin as a witness because her testimony would have established that the petitioner was home when the fire was set. He also acknowledged that he would have hired an arson expert had he known of the information in the Ludlow note.

Similarly, Cosgrove testified that the defense did not call Karen Martin as a witness because they considered her to be a hostile witness by the time of trial. He, too, testified that he would have changed his assessment of the necessity of her testimony if he had known of the bum time referenced in the Ludlow note: “[I]t would have supported the alibi that [her] initial story had given.” Cosgrove stated that he believed the Ludlow note was exculpatory because a time frame for the commission of the crimes would have been established by the bum time, and the petitioner was not temporally available during that window of time.

The second habeas court, although ruling that the Ludlow note potentially was exculpatory and assuming that it had been “inadvertently ‘suppressed’ ” by the state, concluded that the information with respect to bum time was not material and that the petitioner was not prejudiced by Vogt’s failure to pursue the claim at the first habeas proceeding. The court came to that conclusion after weighing the “[considerable and extensive testimony by arson experts/investigators” that had been presented by the petitioner and the respondent with respect to brum time. The court summarized the testimony of five witnesses, including Igoe and Roy. The petitioner’s arson experts were Gerald Kelder, Jr., and John DeHaan. The respondent’s arson expert was Robert Corry.

The court’s summary included the following descriptions. Kelder, “a highly experienced fire investigator,” opined that the fire burned from forty-five minutes up to one hour. His estimated bum time placed the start of the fire at approximately 7:30 p.m., which, as the second habeas court noted, would have supported the petitioner’s alibi defense. DeHaan, a criminalist and forensic scientist specializing in fire and explosion reconstruction, “presented extremely thorough testimony about the numerous variables that impact a fire, even in an apartment as small and contained as the victim’s.” According to DeHaan, approximately twenty-five to sixty minutes elapsed from the time of ignition to the time that the fire was discovered or extinguished. Again, as noted by the court, DeHaan’s opinion would have supported the petitioner’s alibi defense. Corry, the respondent’s expert, was “a highly experienced fire and explosion investigator, [and] also presented extremely detailed testimony about the fire and its dynamics.” In Corry’s opinion, the fire could have been set any time between 5:45 p.m. and 7:55 p.m. His estimate did not support the petitioner’s alibi defense.

The second habeas court, in reaching its determination on materiality and prejudice, stated: “The evidence presented to this court in the form of expert testimony amounts to a contest among experts conducted many years after fact witnesses testified, and were subject to rigorous cross-examination, before the jury. The court, as the finder of fact in this proceeding, assigns far more credit or weight to the testimony of Robert Corry rather than Gerard Kelder or [John] DeHaan regarding estimation of the bum time. The petitioner, thusly, has failed to establish prejudice with respect to any claim vis-a-vis Brady.” The court further stated that because the precise time that the fire was set could not be determined, and Corry’s estimate placed the ignition time in a range between 5:45 p.m. and 7:55 p.m., Karen Martin’s testimony that the petitioner was out of her sight between 6:15 p.m. and 7 p.m. would not have been helpful to establish his whereabouts at the time the crimes had been committed.

With those additional facts in mind, we set forth the applicable standard of review for analyzing an ineffective assistance of habeas counsel claim for failure to pursue the state’s suppression of Brady material. We begin with the familiar two part test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn. App. 393-94.

“[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .” (Internal quotation marks omitted.) Id., 394.

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable. . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 126 Conn. App. 453, 457-58, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011).

Because the petitioner’s claim of ineffective assistance involves the failure to pursue the state’s suppression of Brady material, we also look to the standard required to establish & Brady violation. “[A] trial court’s determination as to materiality under Brady presents a mixed question of law and fact subject to plenary review, with the underlying historical facts subject to review for clear error.” State v. Ortiz, 280 Conn. 686, 720, 911 A.2d 1055 (2006). “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Citation omitted; internal quotation marks omitted.) Id., 718. To satisfy the third prong of Brady, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Gibson v. Commissioner of Correction, 135 Conn. App. 139, 149, 41 A.3d 700, cert. denied, 305 Conn. 922, 47 A.3d 881 (2012).

We conclude that the state’s suppression of the Lud-low note, and Vogt’s failure to pursue that claim, warrants a new trial for the petitioner. We reach that conclusion for the following reasons. Culligan and Cos-grove testified that had the bum time information in the Ludlow note been disclosed prior to the petitioner’s criminal trial, their trial strategy would have changed. They stated that they would have used the thirty to forty minute estimate to buttress the petitioner’s alibi defense, particularly because the estimate came from one of the state’s fire marshals assigned to the investigation. As Culligan testified, the defense would have retained the services of an arson expert. At the second habeas trial, the two experts called by the petitioner testified that the fire could not have been set any earlier than 7:30 p.m. If that testimony had been presented at the crimmal trial, and credited by the jury, the petitioner’s whereabouts at and after 7:30 p.m. would have been critical to his defense.

For that reason, as both trial counsel testified, they would have called Karen Martin as a witness at the criminal trial. She consistently had maintained that the petitioner was in their home with her and their son the entire evening of the victim’s homicide. During her testimony at the suppression hearing, she stated that the only time that the petitioner was not in her sight was between 6:15 p.m. and 7 p.m., when she was bathing their son. If the jury credited Karen Martin’s testimony, it could have concluded that the petitioner was at home watching television with her and their son when the fire had been set.

Further, if Karen Martin had testified and the jury believed her testimony, the jury could have concluded that the petitioner had, at most, a forty-five minute window of time within which to commit the crimes. This would mean that between 6:15 p.m. and 7 p.m., on the night of the homicide, the petitioner: (1) walked the distance between his home and the victim’s apartment; (2) had a cup of coffee with the victim while they were chatting on the couch; (3) used the victim’s bathroom, located close to the victim’s bedroom; (4) emerged from the bathroom, saw the victim combing her hair and decided to sexually assault her; (5) undressed himself, then tore the clothes off the victim; (6) sexually assaulted the victim; (7) retrieved a knife from the kitchen; (8) stabbed the victim ten times in the back and once in the abdomen; (9) used strips of cloth to tie them as a ligature so tightly around the victim’s neck that the responding firefighters had difficulty removing the cloth; (10) loosely tied bindings around the victim’s wrists and stomach area; (11) removed the victim from the bed and placed her on or near the couch; (12) washed any blood from his body and dressed himself; (13) set fires in three separate locations in the victim’s apartment; and (14) walked the distance from the victim’s apartment back to his home. According to Karen Martin’s recorded statements to Morrissey on July 4, 1989, and her testimony at the suppression hearing, which the jury did not hear, the petitioner was sitting in the living room when she came downstairs from bathing their son, and there were no signs of exertion or excitement. She noticed nothing out of the ordinary in his behavior that evening.

We cannot say that the petitioner is factually innocent and did not commit the crimes for which he was convicted. However, we do conclude that there is a reasonable probability that the result of his criminal trial would have been different had the Ludlow note been disclosed to Culligan and Cosgrove prior to trial. Nondisclosure prior to trial of the portion of the Ludlow note describing the possible bum time affected the overall fairness of the trial and was so unfair as to undermine our confidence in the jury's verdict. With the bum time estimate provided by one of the state’s fire marshals, trial counsel testified that they would have retained the services of an arson expert and that Karen Martin would have testified as to the petitioner’s whereabouts during the critical times of that evening. That evidence, if believed by the jury, could have resulted in the jury’s finding that it was temporally impossible for the petitioner to have committed the crimes for which he was convicted. The Ludlow note was exculpatory and material in these circumstances. Vogt’s performance was deficient when he failed to pursue that issue at the first habeas proceeding, and the petitioner was prejudiced by his failure to do so. The petitioner has demonstrated that had there been effective representation by Vogt, there is a reasonable probability that the first habeas court would have found that the petitioner was entitled to reversal of the conviction and a new trial. See Gibson v. Commissioner of Correction, supra, 135 Conn. App. 156.

The judgment denying the second amended habeas petition is reversed with respect to count one of the petition alleging ineffective assistance of counsel pertaining to the Brady violation claim and the case is remanded to the habeas court with direction to render judgment granting the writ of habeas corpus as to that count and to order a new trial for the petitioner. The judgment is affirmed with respect to count three of the petition alleging actual innocence. The appeal is dismissed with respect to count two of the petition alleging ineffective assistance of counsel pertaining to the petitioner’s inculpatory statements as this court declined to address that claim.

In this opinion the other judges concurred.

       The marriage of Karen Martin and the petitioner was dissolved on June 18, 1991, which was prior to his criminal trial in 1992.

       “The [petitioner’s] convictions of arson murder, felony murder, murder, sexual assault in the first degree and sexual assault in the third degree were combined with his conviction on the capital felony count for purposes of sentencing in order to comport with constitutional double jeopardy protections.” State v. Lapointe, 237 Conn. 694, 695 n.1, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).

       Practice Book § 3-8 provides in relevant part: “Unless a written objection is filed within ten days after the filing of an in-lieu-of appearance, the appearance or appearances to be replaced by the new appearance shall be deemed to have been withdrawn and the clerk shall make appropriate entries for such purpose on the file and docket. . . .”

       The petitioner has been diagnosed with Dandy-Walker Syndrome.

       The second habeas court also permitted the petitioner to amend his petition further to incorporate additional evidence in support of his actual innocence claim. The second amended petition filed on March 5, 2010, is the operative complaint.

       At the criminal trial, Igoe testified as an expert in the field of fire investigation and the determination of the cause and origin of fires.

       He remained the lead investigator until he was replaced in March, 1989, by Lombardo.

       Roy testified that he was Igoe’s assistant in the investigation. He further testified that he had not offered an estimate with respect to the bum time of the fire.

       Culligan stated that the first time he saw the Ludlow note was at the first habeas trial, which took place over several days in February, March and April, 2000.

       See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material.” State v. Esposito, 235 Conn. 802, 813, 670 A.2d 301 (1996).

       Vogt testified that he had never tried a habeas case prior to representing the petitioner in the first habeas proceeding involving a capital felony conviction. He also acknowledged that he had no jury trial experience in criminal cases as a trial attorney. Prior to his representation of the petitioner, Vogt testified that his experience consisted of participation in commercial litigation in a supporting capacity.

       Culligan testified at the second habeas proceeding that he is a career public defender employed by the state. He stated that he has been assigned to the unit that represents the accused in capital felony death penalty prosecutions since August, 1988. Culligan was lead counsel and Cosgrove assisted him at the petitioner’s criminal trial.

       “Exculpatory has been defined to mean [c]learing or tending to clear from alleged fault or guilt; excusing.” (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn. App. 390. “Evidence that tends to prove [the petitioner’s] temporal inabilityto have committed the crime satisfies the definition of exculpatory . . . .” Id., 392.

       Culligan’s testimony was as follows: “I mean at that point it wouldn’t have made any difference whatever her allegiance to [the petitioner] was at the — when we did the trial because this thirty to forty minute bum time would mean that he’d have to have been home as she had consistently testified during the time — seven to eight o’clock, when they were watching television with [their son].”

       The following questioning occurred:
      “[Habeas Counsel]: “And wouldn’t it have made it impossible for [the petitioner] to have set the fire. Correct?
      “[Cosgrove]: Right.
      “[Habeas Counsel]: [Be]cause it was undisputed that he was home from, under any version from seven o’clock till the time he got the phone call to walk over there. Correct?
      “[Cosgrove]: Yes.”

       On appeal, the respondent argues that the Ludlow note was not suppressed because it was preliminary and speculative and the petitioner’s trial counsel knew of its essential facts. The second habeas court did not address those claims. In its memorandum of decision, the court stated: “There is no indication or evidence that the Ludlow note was wilfully suppressed, so this court will assume, without deciding, solely for purposes of further addressing the petitioner’s claim, that the Ludlow note was inadvertently suppressed.” (Internal quotation marks omitted.) Without any further analysis by the court, the record is inadequate for us to address this argument of the respondent.

       We note that the respondent’s expert testified that the fire could have been set as early as 5:45 p.m. The second habeas court found his testimony more persuasive than the testimony of the petitioner’s experts. The petitioner exercised his sixth amendment right to a trial by an impartial jury. If the Ludlow note had been disclosed to trial counsel, however, it would have been the responsibility of the jury and not the court to weigh the credibility of the arson experts. Whether the bum time evidence, which was so critical in buttressing his alibi defense, raised a reasonable doubt as to the petitioner’s guilt would best be a determination left to the jury and not a habeas court.

       She testified at a pretrial suppression hearing that the petitioner took the dog for a twenty minute walk shortly after they had returned from their visit with the victim. According to her testimony, they had dinner at approximately 5:30 p.m., after the petitioner had returned from walking the dog. As previously noted, the victim was seen alive by her daughter at approximately 5:45 p.m. that evening.

       The record contains testimony that it took the petitioner approximately ten to fifteen minutes to walk from his home to the victim’s apartment. There also is testimony that because the petitioner has Dandy-Walker Syndrome, he is slow and unsteady on his feet.

       There was testimony during the criminal trial that the petitioner, when employed at a local grocery store, could lift bags of groceries weighing up to twenty pounds but struggled with objects weighing from fifty to seventy pounds.

       This scenario is comprised from the petitioner’s statements to the police, which the jury believed in order to find him guilty of all of the charged crimes, and the actual evidence submitted at trial.

       Because we conclude that the petitioner is entitled to a new trial for the reasons discussed herein, we need not address the petitioner’s additional claim that Vogt rendered ineffective assistance of counsel by failing to establish that trial counsel did not utilize available evidence to prove the factual unreliability of the petitioner’s inculpatory statements to the police.
      During the first habeas proceeding, Vogt claimed that Culligan and Cos-grove rendered ineffective assistance of counsel by failing to argue that certain items admitted into evidence demonstrated reasonable doubt as to the petitioner’s guilt. Two men’s gloves found at the crime scene, one on the bed and the other by the side of the bed, were never connected to the petitioner. Nevertheless, trial counsel never questioned the petitioner, who testified at the criminal trial, or any of the state’s witnesses, about the ownership of those gloves. Further, Vogt claimed that trial counsel should have stressed that certain hairs of unknown origin were found at the crime scene and demonstrated reasonable doubt as to the petitioner’s guilt. Vogt failed to prevail on those claims, however, because the first habeas court stated that he had failed to ask Culligan at the first habeas proceeding why the defense did not mention the gloves or the hairs. The first habeas court, in refusing to speculate as to the reasons for the failure to argue those matters to the jury, concluded that Vogt had failed to sustain his burden to show that Culligan’s actions were not strategic in nature.
      In the second habeas petition, the petitioner claimed that Vogt rendered ineffective assistance by failing to question trial counsel with respect to their failure to utilize the gloves, a pubic hair of unknown origin and various other evidence admitted at trial to prove the factual unreliability of the petitioner’s inculpatory statements to the police. Specifically, it is claimed that habeas and trial counsel rendered ineffective assistance because the following inconsistencies were not emphasized: (1) the petitioner did not mention the men’s gloves in any of his statements to the police, and ownership of those gloves never was established; (2) a pubic hair dissimilar to samples taken from the victim and the petitioner was found on the victim’s blue sweater at the side of the bed; (3) the petitioner said that he stabbed the victim on the couch, but the evidence showed that she was stabbed on the bed; (4) the petitioner never mentioned the ten stab wounds to the victim’s back; (5) the petitioner said that the victim was wearing a pink housecoat when the physical evidence demonstrated that she had been wearing a blouse, slacks and blue sweater when she was attacked; (6) the petitioner indicated by hand gestures that he strangled the victim manually when the medical examiner testified that she was asphyxiated by pressure to the right side of her neck with a blunt object; and (7) the petitioner did not mention the fact that strips of cloth were tied around the victim’s neck, wrists and abdominal area.
      When Culligan and Cosgrove were asked at the second habeas proceeding why they failed to point out these discrepancies to the jury, they could not provide explanations for their failure. Culligan always has maintained that he and Cosgrove, early in the case, believed that the petitioner was actually innocent and that they would have to convince a jury that his confessions were coerced and false. It is difficult to discern why such discrepancies would not have been emphasized to the jury during the trial when the stated trial strategy was to demonstrate the falsity of the petitioner’s statements.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    GREEN FALLS ASSOCIATES, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF MONTVILLE ET AL.
    (AC 33110)
    DiPentima, C. J., and Alvord and Pellegrino, Js.

      Argued April 9
    officially released October 16, 2012

      Harry B. Heller, for the appellant (plaintiff).

      Michael P. Carey, for the appellee (named defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Green Falls Associates, LLC, appeals from the judgment of the Superior Court dismissing its appeal from the decision of the named defendant, the zoning board of appeals of the town of Montville, denying the plaintiffs application for a variance. On appeal, the plaintiff claims that the court improperly determined that (1) the variance application failed to receive the necessary votes pursuant to General Statutes § 8-7, (2) there was no unusual hardship on the plaintiff and (3) the denial of the variance application was not a confiscation. In addition to rebutting these claims, the defendant challenges the plaintiff’s standing to apply for a variance. We are not persuaded by the defendant’s arguments regarding standing. We disagree with the plaintiff, however, with respect to its claims on the merits, and, therefore, we affirm the judgment of the Superior Court.

The following facts and procedural history, as set forth by the court in its memorandum of decision and as supported by the record, are relevant to the resolution of this appeal. The property in question is an unimproved plot of land in the town of Montville. At the time of the plaintiff’s variance application, the property was validly nonconforming with respect to the minimum lot area requirements contained in §§ 5.4 and 5.5 of the Montville zoning regulations. The property is located in the WRP-160 zoning district, which requires seventy-five foot front and rear yard setbacks, as well as side yard setbacks of thirty feet.

On December 1, 2006, the plaintiff entered into an agreement to purchase the subject property owned by Arthur W. DeGezelle. The agreement contained a printed form setting forth a purchase price of $45,000 with a deposit of $500. In addition, the agreement included handwritten provisions indicating that the agreement was subject to the plaintiffs obtaining a building permit, at its expense, for a three bedroom house. In the same handwritten section, DeGezelle agreed to support the plaintiffs pursuit of any required permits, including, but not limited to, approval by the defendant. The agreement, by its terms, expired on April 1,2007. The agreement did not contain language indicating that time was of the essence. On September 12,2007, the plaintiff and DeGezelle appear to have amended the purchase price from $45,000 to $20,000 and changed the closing date to September 25, 2007, by way of a handwritten change on the December 1, 2006 agreement. Despite the fact that the plaintiff did not receive the permits as expected, it acquired title to the property from DeGezelle on September 28, 2007.

On June 1, 2007, by application dated May 29, 2007, the plaintiff applied for a variance from the defendant. DeGezelle was Usted as the owner of the property. In its apphcation, the plaintiff requested a variance from “the strict apphcation of Section 5.6.2 Side Yard Setback and Section 5.6.3 Rear Yard Setback.” (Internal quotation marks omitted.) The plaintiff requested a variance for the purpose of building a thirty-eight by twenty-six foot, single family residence with an on-site weh and septic system.

On July 11, 2007, the defendant held a public hearing on the apphcation. At that time, John MacNeil, the chairman of the defendant, recused himself because he resided in close proximity to the property and at one time was interested in purchasing the property. The hearing was continued to September 5, 2007, and, on that day, MacNeil again recused himself. At the hearing, Robert Mitchell, Jr., another member of the defendant, was absent. Four members of the defendant were available to vote on the plaintiffs application: Barbara Mac-Fadyen, Douglas Adams, Richard Fawcett and Ellen Lakowsky. After the plaintiffs attorney presented a memorandum of law and the testimony of a soil scientist and took questions regarding the property, the attorney for an abutting landowner asked for a continuance to respond to the presentation. The plaintiffs attorney opposed the continuance, as did Fawcett, who noted his belief that the continuance was merely a “delaying tactic” by the abutting landowner’s attorney. At the conclusion of the public hearing, the members of the defendant discussed the application. A motion was made and seconded to approve the application. When the members held a roll call vote, Adams, Fawcett and MacFadyen voted in favor of the variance application. Lakowsky abstained without giving a reason for her abstention. Notwithstanding the three votes in favor of the application, the defendant denied the application.

The plaintiff appealed the denial to the trial court on October 1, 2007. The court dismissed the appeal on October 28, 2010. On the granting of certification, the plaintiff appealed to this court. Additional facts will be set forth as necessary.

I

We first address the defendant’s claim that the plaintiff lacked standing. This issue implicates subject matter jurisdiction, and therefore we address it before reaching the merits of the plaintiffs appeal. See Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992). The issue of standing is a question of law, and therefore subject to plenary review. Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn. App. 711, 714, 822 A.2d 257, cert denied, 264 Conn. 920, 828 A.2d 619 (2003). After such review, we affirm the court’s conclusion that the plaintiff had standing.

The defendant claims that the plaintiff lacked standing to apply for a variance. The defendant argues, specifically, that at the time of the plaintiffs June 1, 2007 application, it lacked a sufficient interest in the property. The defendant argues that the agreement was void as of April 1, 2007, and that the plaintiff therefore did not have an interest in the property after that date. We disagree.

In its motion for articulation, the defendant requested that the court articulate its response to the issue of standing, which the defendant argued was not addressed in the court’s memorandum of decision. The court’s response to the motion stated: “By way of articulation, it is found that the [plaintiff] did have such standing.” Subsequently, the defendant filed a motion for review with this court requesting further articulation. This court granted the defendant’s motion but denied the relief requested therein.

To have standing to apply for a variance, an applicant must be “in fact a real party in interest with respect to the subject property . . . whether he is in possession or has a present or . . . future right to possession . . . .” (Emphasis omitted; internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 257, 773 A.2d 300 (2001). Further, absent any express provision that states the contrary, one who has contracted to purchase property has standing to apply for a variance governing its use. Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380 (1967).

The defendant argues that the agreement was no longer in effect after April 1, 2007, the original closing date set in the agreement. Specifically, he argues that because the agreement conditioned the happening of the closing on the plaintiffs obtaining a building permit and the plaintiff did not have such a permit on April 1, 2007, the agreement became null and void per its own terms. Contrary to the defendant’s argument, the trial court found that on “April 1, 2007, the agreement, by its terms, expired although [the plaintiff] points out that the [agreement] did not provide, time was of the essence.”

“Where the agreement does not specifically state that time is of the essence, it is presumed not to be unless the parties have expressed a contrary intent.” (Internal quotation marks omitted.) Tulisano v. Schonberger, 74 Conn. App. 101, 106, 810 A.2d 806 (2002). As the court correctly found, there is no express statement of “time is of the essence” in the agreement, and, therefore, there is no basis to conclude that either the plaintiff or DeGezelle intended to nullify the agreement on April 1, 2007. Further, as the court correctly found, “[t]he evidence indicates that [the plaintiff] and [DeGezelle] intended that the [agreement] to purchase remain in effect.” The agreement established the plaintiffs position as the purchaser of the property, and because we agree with the court’s findings that time was not of the essence and that the parties intended the agreement to remain in effect, we further agree that the plaintiff had a sufficient interest in the property to apply for a variance.

II

The plaintiff claims that the court improperly determined that the variance application failed to receive the necessary votes pursuant to § 8-7. Specifically, the plaintiff claims that Lakowsky’s abstention created a situation where it was impossible to have a sufficient vote by the defendant. The plaintiff also contends that the court improperly determined that Lakowsky’s abstention could not be counted as an affirmative vote. We disagree.

We begin with the language of the statute. Section 8-7 provides in relevant part: “The concurring vote of four members of the zoning board of appeals shall be necessary to . . . vary the application of the zoning bylaw, ordinance, rule or regulation. . . .” See Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 141, 734 A.2d 592, cert. denied, 250 Conn. 930, 738 A.2d 656 (1999); S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, 33 Conn. App. 281, 286, 635 A.2d 835 (1993).

With that in mind, we now turn to our rules on statutory interpretation. Pursuant to General Statutes § 1-2z, “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.” “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 443, 994 A.2d 1270 (2010). Because this is a matter of statutory interpretation, our review is plenary. See Abel v. Planning & Zoning Commission, 297 Conn. 414, 427, 998 A.2d 1149 (2010).

A

The plaintiff first argues that Lakowsky’s abstention left only three voting members on the board, which was insufficient for a valid vote under § 8-7. We disagree.

The plaintiff misconstrues the meaning of § 8-7 in claiming that a vote of three in favor, zero opposed and one abstention constitutes only three votes and in concluding that therefore the composition of the defendant was insufficient. “[A] zoning board of appeals may not act unless there are at least four qualified members present and voting.” S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, supra, 33 Conn. App. 286. Further, “[w]herever a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment of all the persons to whom has been intrusted the decision. ... All the benefit, in short, which can flow from the mutual consultation, the experience and knowledge, the wisdom and judgment of each and all the members, is endangered by any other rule.” (Internal quotation marks omitted.) Id., 287. The plaintiff was entitled to the full deliberation of its application by at least four of the members of the defendant, but not to a specific outcome or voting ratio by the defendant. Here, Lakowsky was present for the proceedings as to the plaintiffs application and she participated in the deliberation. She was present for both the July 11, 2007 meeting and the September 6, 2007 meeting and heard the plaintiffs evidence presented at each. Notwithstanding her ultimate abstention, Lakowsky was present and qualified, allowing the defendant to act on the application.

Further, the plaintiff conceded at oral argument before this court that it did not raise the issue of an insufficient panel at the time of Lakowsky’s abstention. By proceeding with the hearing, the plaintiff accepted the defendant’s procedures and cannot now complain that if it had been apprised of the defendant’s rules and procedures, it would have proceeded differently. See generally U-Haul of Connecticut v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-94-0310649-S (September 8, 1994) (12 Conn. L. Rptr. 367). We also note that “[t]he alternate members of the board often fail to attend meetings, and if one of the regular members is not there, the board can go forward with an application if four members are present, and the applicant consents. Whether consent is given generally depends upon the best guess of the applicant or the applicant’s attorney as to whether a favorable vote of 4 to 0 is likely on the application.” R. Fuller, 9 Connecticut Practice Series: Land Use Law & Practice (3d Ed. 2007) § 8:2, p. 217. The plaintiff noted at oral argument before this court that had it been aware of the possibility of a three to zero with one abstention vote, it would not have proceeded with its case, but such a claim is irrelevant. The plaintiff accepted the possibility of any combination of voting outcomes when it proceeded with its application before the defendant.

B

The plaintiff next claims that Lakowsky’s abstention can and should be considered an affirmative vote in favor of the plaintiffs application. We disagree.

As we have determined that a vote of three to zero with one abstention does not create an impossibility under § 8-7, we need not require that Lakowsky’s abstention be either affirmative or negative. When a statute specifically requires a number of affirmative votes, an abstention is not counted with the majority. 9 R. Fuller, supra, § 21:3, p. 599. Further, “[w]hen one abstains from casting a vote, that person does not intend that their vote be either for or against the particular proposition, but only that they do not wish to be recorded on either side of the issue.” Biasucci v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-94-047330-S (December 9, 1994) (13 Conn. L. Rptr. 100).

The plaintiff relies heavily on Somers v. Bridgeport, 60 Conn. 521, 22 A. 1015 (1891), to support its claim that Lakowsky’s abstention should be counted as an affirmative vote. Somers is factually distinguishable from this case. Most importantly, Somers does not pertain to § 8-7, or to any land use statute or regulation. Rather, our Supreme Court in Somers considered whether the passage of a vote to appoint police officers by the Bridgeport board of police commissioners was valid when two members of the board abstained, two voted in favor, and the mayor voted to break the tie. Id., 525. In its consideration, our Supreme Court interpreted a city ordinance to compel the board to fulfill its duty to take action. Id., 527. That is markedly different from the present case involving a decision to grant or to deny an application for a variance. This distinction makes Somers inapposite.

Further, where our Supreme Court has examined wetlands regulations, a subject area more analogous to the zoning regulation at force in this case, it found that in a three to three with one abstention zoning board vote, the abstention should not be made an affirmative vote. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 533-34, 525 A.2d 940 (1987). “[T]he failure of an application to gamer enough votes for its approval amounts to a rejection of the application.” (Internal quotation marks omitted.) Id., 533. The court found that the board’s vote, with the abstention, constituted a valid action and that the three votes for and three votes against resulted in an appropriate denial of a landowner’s application for a permit to constmct a single-family dwelling on property located adjacent to a lake. Id.

Accordingly, for all of these reasons, we conclude that Lakowsky’s abstention did not constitute an affirmative response to the plaintiffs application.

III

The plaintiff next claims that the court improperly determined that there was no undue hardship on the plaintiff and that the denial of the plaintiffs application for a variance did not amount to a confiscation. Specifically, the plaintiff argues that the court improperly determined that the placement requirements for an on-site septic system, coupled with a validly nonconforming, undersized, odd shaped lot did not constitute an unusual hardship or exceptional difficulty on the plaintiff, as required for a variance. Further, the plaintiff claims that the court improperly determined that the denial of the plaintiffs application did not greatly reduce or practically destroy the value of the property. We disagree with each of the plaintiffs claims.

A

We turn to the plaintiffs claim that the placement requirements for an on-site septic system on the property constitutes an unusual hardship or exceptional difficulty. We set forth our standard of review. A zoning board of appeals “is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.” (Internal quotation marks omitted.) Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). Further, “[w]hen a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.” (Internal quotation marks omitted.) Fernandes v. Zoning Board of Appeals, 24 Conn. App. 49, 53, 585 A.2d 703, rev’d on other grounds, 218 Conn. 909, 591 A.2d 811 (1991). As the defendant did not provide any reasoning for its decision, and because of the unusual procedural posture created by Lakowsky’s abstention, we search the entire record to find a basis for the defendant’s denial of the plaintiffs application. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).

At its widest, the property is one hundred feet long at its frontage, and it narrows to thirty feet at the rear line. The property requires an on-site septic system. The Connecticut Public Health Code Technical Standards § IIA requires that a subsurface sewage disposal system be at least ten feet from any property line and fifteen feet from any building served. The plaintiff argues that in order to comply with the code it must place the septic system in the front of the property, which would leave insufficient space to build the three bedroom home it desires.

“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town . . . .” (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009). In order to prove the necessity of a variance, an applicant must show that (1) the variance will not substantially affect the comprehensive zoning plan and (2) adherence to the strict letter of the zoning ordinance will cause unusual hardship unnecessary to the carrying out of the general puipose of the zoning plan. Id. To support the granting of a variance, the hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. See Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 657, 427 A.2d 1346 (1980); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972).

The plaintiff argues that Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), is analogous to this case. In Stillman, however, the denial of the requested variance prevented the applicant from building any type of addition onto her previously existing home, which was situated on a nonconforming lot. Id., 636-37. This is not the case here; the plaintiff is not prevented from building any structure, but rather only from building the desired three bedroom house. There are alternatives available to the plaintiff. The court noted that a smaller house “could be erected” on the property. Design flows, which impact the size of a septic system, depend on the number of bedrooms in a house. See Connecticut Public Health Code, Technical Standards § IV A. A smaller house therefore would reduce the size of the septic system needed for the property’s size.

As the court noted, the plaintiff can build a smaller house and likely comply with all regulations. “Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship .... It is well established that the power to grant a variance should be sparingly exercised.” (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, 101 Conn. App. 451, 462, 922 A.2d 227, cert. denied, 238 Conn. 908, 927 A.2d 917 (2007). The plaintiff has failed to show that the inability to build its desired house as a result of the denial of the variance application is anything beyond a disappointment.

B

Finally, the plaintiff claims that the defendant’s denial of its variance application so greatly reduced the price of the property as to constitute a confiscation. We disagree.

The United States Supreme Court has found a taking where a “regulation denies all economically beneficial or productive use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 120 L. Ed. 2d. 798 (1992). In Connecticut, “[a] practical confiscation occurs when a landowner is prevented from making any beneficial use of its land — as if the government had, in fact, confiscated it. A practical confiscation does not occur when the landowner cannot take advantage of a myriad of uses acceptable under the applicable regulations because of choices the landowner itself has made that limit its land use options.” Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 256, 662 A.2d 1179 (1995). Further, “[p]roof of financial hardship having a confiscatory or arbitrary effect requires more than testimony that property can be sold only for a price substantially lower than can be obtained if a variance is granted to permit a use otherwise prohibited by the zoning regulations.” (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, supra, 101 Conn. App. 459.

The evidence does not show that the plaintiff cannot take advantage of any use of the property. The evidence shows that the plaintiff paid $45,000 to DeGezelle to purchase the property. The tax assessor’s card appraised the property at $6750, and the abutting landowner, Paul E. Chase, offered the plaintiff $1500 for the property. Although $1500 is significantly less than what the plaintiff paid for the property, the existence of such an offer demonstrates that the plaintiff did not lose all economically beneficial or productive use of the land, as is required under Lucas and Bauer. Further, as the court noted, a smaller house could be erected on the property and satisfy the requirements of the public health code for a septic system. While the plaintiff is not able to build on the property as it had intended, the property retains productive use, and therefore the defendant’s denial of the plaintiffs variance application does not constitute a confiscation.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paul E. Chase filed a verified pleading for intervention in the proceedings before the zoning board of appeals and was joined as a defendant in the appeal to the trial court. He is not a party to the present appeal, and therefore we refer in this opinion to the zoning board of appeals as the defendant.

       A nonconforming lot is one which was “developed prior to the adoption of zoning regulations . . . and is nonconforming with respect to many of the zoning requirements in the district in which it is situated.” Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 438 n.6, 994 A.2d 1270 (2010).

       Section 5.4 of the Montville zoning regulations provides: “The minimum lot size in this district is 160,000 square feet.”

       Section 5.5 of the Montville zoning regulations provides: “Each lot in this district shall have at least 200 feet of frontage on a street.”

       The deed conveying the property to the plaintiff indicated that the consideration paid for the property was $45,000.

       General Statutes § 8-7 provides in relevant part: “The concurring vote of four members of the zoning board of appeals shall be necessary to . . . decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. . . .”

       Although the decisions of the Superior Court are not binding authority, we find the reasoning set forth in Biasucci particularly persuasive. See Johnson v. Atlantic Health Services, P.C., 83 Conn. App. 268, 277, 849 A.2d 853 (2004).

       “ ‘Design flow’ means the anticipated daily discharge from a building . . . .” Regs., Conn. State Agencies § 19-13-B100a (a) (5).

       The plaintiff argues that the change in the purchase price, reflected in the handwritten edits to the plaintiffs original agreement with DeGezelle, from $45,000 to $20,000 evidences a change in the fair market value of the property. As a practical confiscation requires a complete loss of “any beneficial use,” this argument does not affect our resolution of the question of confiscation. Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 256.