author: BEAR, J.

text:
    LIUBOV STANCUNA v. VERNON STANCUNA
    (AC 32790)
    Bear, Espinosa and Pellegrino, Js.
    Argued February 7
    officially released May 8, 2012

      John R. Williams, for the appellant (defendant).

      Leslie I. Jennings-Lax, for the appellee (plaintiff).

      A. J. Wambolt, guardian ad litem for the minor children.
   Opinion

BEAR, J.

The defendant, Vernon Stancuna, appeals from certain postjudgment orders entered by the trial court in this dissolution action. Specifically, the defendant claims that the court abused its discretion by (1) permitting the plaintiff, Liubov Stancuna, to travel with the parties’ minor children outside of the United States without prior notice to the defendant and (2) requiring that the defendant provide the plaintiffs counsel and the children’s guardian ad litem with information relating to court-ordered psychological evaluations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims. At all times relevant to this appeal, the plaintiff was a Russian citizen and the defendant was a citizen of the United States. Additionally, the plaintiff owns property in and maintains significant family ties with Russia. Both parties currently reside in Connecticut.

In 2001, the parties were married in the United States and the marriage produced two children. The parties were both arrested and referred to the department of children and families on multiple occasions over the course of their marriage, although the incidents resulted in no convictions or substantiations of abuse or neglect. In March, 2004, the parties separated and shared physical custody of the children for several months. In late July, 2004, the defendant took the children to Romania. During that time, the plaintiffs father had a heart attack, and, in August, 2004, she travelled to Russia to be with him. The plaintiff subsequently was prevented from reentering the United States for a period of ten months due to immigration proceedings initiated by the defendant. After the plaintiff was allowed to reenter the United States, the defendant filed an application for an ex parte order of immediate temporary custody of the children, along with an affidavit averring, in part, that he feared that the plaintiff “is going to take the children and go to Russia with them.”

The plaintiff thereafter filed a dissolution action, and, on August 22, 2007, the parties’ marriage was dissolved. The dissolution orders provided that the parties would maintain joint legal and shared physical custody of the children.

In January, 2009, the plaintiff filed an ex parte motion for temporary modification of custody and supervised visitation. In her motion, the plaintiff stated that the defendant’s behavior was becoming increasingly threatening and bizarre. On January 15, 2009, the court granted the plaintiff’s ex parte motion.

On January 22, 2009, proceedings relevant to the present matter commenced. Over the next few months, the parties filed numerous motions with the corut, few of which are relevant to this appeal. On April 13, 2009, the court ordered a full psychological and custody evaluation. Eventually, the parties agreed that the evaluation would be conducted by Michael Haymes, a board certified forensic psychologist.

Beginning in March, 2010, and continuing through July, 2010, the court heard ten days of evidence and argument on many of the unresolved motions, including the motions filed by the plaintiff concerning international travel and visitation that are the subject of the defendant’s appeal. Haymes and the defendant’s brother, among others, testified during the postjudgment proceedings. Haymes’ court-ordered evaluation of the defendant also was entered into evidence. On July 19, 2010, the plaintiff filed a posttrial brief, and, on August 2, 2010, the defendant likewise filed a post-trial brief.

On September 30, 2010, the court issued a memorandum of decision with respect to several of the postjudgment motions filed by the parties. The court credited Haymes’ testimony and noted that the defendant appeared to be suffering from a delusional disorder. The court further found that it would be in the best interests of the children that visitation with the defendant continue to be supervised.

The court ordered, inter alia, sole legal and physical custody of the minor children to the plaintiff. The court also entered an order permitting the plaintiff to travel with the children within and outside of the United States without prior notice to the defendant. The court’s orders also provided that, should the defendant seek modification of the supervised visitation order, he would need to consult with a psychologist and to provide authorizations to the plaintiffs attorney and the guardian ad litem to access Ms treatment recommendations and compliance with such recommendations. TMs appeal followed.

On appeal, the defendant challenges (1) the court’s order permitting the plaintiff to travel outside of the UMted States with the cMldren and (2) the order permitting the guardian ad litem and the plaintiffs attorney access to the defendant’s treatmg professionals and requiring him to execute authorizations allowing such access.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases xmless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon tMs court uMess they are clearly erroneous m light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the defimte and firm conviction that a mistake has been committed. . . . Therefore, 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.” (Citations omitted; internal quotation marks omitted.) Demartino v. Demartino, 79 Conn. App. 488, 492-93, 830 A.2d 394 (2003).

I

The defendant first claims that the court “abused its discretion in permitting the [plaintiff], without prior notice, to take the minor children to [Russia] which is not a signatory to the Hague Convention [on the Civil Aspects of International Child Abduction (Hague Convention)], of which she is a citizen, where all of her family reside, and where she owns significant real estate.” Specifically, the defendant contends that Russia’s status as a nonsignatory country to the Hague Convention’s child abduction provisions prevents the court from maintaining jurisdiction and enforcing its custody orders should the plaintiff decide to abscond with the children. In fight of Russia’s status as a nonsig-natory to the relevant portions of the Hague Convention, the defendant further argues that, at the very least, the court’s orders should afford the defendant an opportunity to be heard prior to permitting the plaintiff to travel internationally with the children. We are not persuaded.

The court found that permitting the children to travel to Russia with the plaintiff would be in their best interests. Specifically, the court found that the plaintiff “has invested time and money in establishing a home and career in Connecticut. She is taking all the necessary steps to become a United States citizen including paying off debt that rightfully should be paid off by [the defendant]. [The defendant] so far refuses to address his mental disorder. He prefers to engage in multiple litiga-tions rather than pursue gainful employment to help support his children and to get help for himself. It would be unfair in this situation to prevent the [plaintiff] from visiting her family in Russia with the minor children. Although Russia is not a signatory to the Hague Convention and the United States and Russia have no formal agreement on child abductions, it is not in the children’s best interests to prevent them from visiting family in Russia with [the plaintiff]. There’s no creditable evidence that she would refuse to return the children [to] the United States. Everything [the plaintiff] has done so far, including making the children available to [the defendant] for his supervised [visitation] and making them available to Dr. Haymes for his evaluations leads this court to the conclusion that she would comply with this court’s orders regarding custody and visitation.”

The defendant contends that the court abused its discretion in entering its travel orders because, by virtue of her status as a Russian citizen with property interests and family in that country, the plaintiff could decide, at some unspecified future date, to move to Russia with the children. The defendant argues that Russia’s status as a nonsignatory to the Hague Convention is relevant because, should the plaintiff decide to relocate the children to Russia permanently, neither the court nor the defendant would have authority to order the children’s return. Nonetheless, the defendant stated at oral argument before this court that he was not contending that the plaintiff had the present intent to take the children to Russia permanently.

Clearly, the court considered the best interests of the children in formulating its orders. See General Statutes § 46b-56 (c). Although the . defendant makes repeated reference to Russia’s failure to ratify the Hague Convention’s child abduction provisions, the court specifically found, on the basis of the evidence before it, that the plaintiff does not pose a flight risk. The evidence included testimony from both Haymes and the defendant’s brother. Additionally, the court found that the plaintiff has made considerable progress toward United States citizenship and that she has invested significant time and money in establishing a home and career in Connecticut. In light of the foregoing, we conclude that the court did not abuse its discretion in permitting the plaintiff to travel with the minor children to Russia.

Moreover, we conclude that the court did not abuse its discretion in allowing for such travel without advance notice to the defendant. The court specifically noted the defendant’s continuing failure “to address his mental disorder” and his preference “to engage in multiple litigations rather than pursue gainful employment to help support his children and to get help for himself,” and stated that it would be “unfair in this situation to prevent the [plaintiff] from visiting her family in Russia with the minor children.” Additionally, the record amply supports the court’s orders of sole legal and physical custody of the minor children to the plaintiff because of, inter alia, the defendant’s inability to have a relationship with the plaintiff that would permit communication in any manner between them to enable them to discuss and make decisions about the children. In summary, the defendant’s chronic untreated mental health issues; his litigiousness; his failure, refusal or other inability to accept the importance in the children’s lives of the plaintiff and her family in Russia; and the history of his behavior toward the plaintiff demonstrate the wisdom of the court in seeking to minimize the necessity of any contact between the parties and to eliminate any requirement that the plaintiff initiate contact or provide information to the defendant.

Accordingly, we conclude that the court did not abuse its discretion in entering the travel orders.

n

The defendant next claims that the court “abused its discretion in granting the plaintiffs attorney and the guardian ad litem unrestricted access to all mental health professionals treating the defendant and to the treatment records of such professionals and further ordering the defendant to execute releases and authorizations permitting such unrestricted disclosures of privileged communications and evaluations.” We disagree.

The court’s order provides in relevant part: “Before the court will consider unsupervised visitation with the minor children, the [defendant] must engage the services of an experienced psychotherapist and psycho-pharmacologist approved by the [guardian ad litem], each of whom has had training in managing and treating individuals with delusional disorders, and comply with their recommendations for a period of at least [six] consecutive months. The [defendant] also must submit to a neuropsychological evaluation to assess any consequences of past head trauma and to rule out complications of other diseases if such evaluation is recommended by the psychotherapist. Attorney for the [plaintiff] and the [guardian ad litem] shall have access to these professionals, their treatment recommendations and [the defendant’s] compliance with these recommendations, including making and keeping appointments and filling and taking prescriptions prescribed by the aforesaid professionals. The [defendant] shall execute appropriate authorizations to [the plaintiffs] attorney and the [guardian ad litem] to obtain such information.”

The defendant argues that the court’s orders violate state and federal policies against the dissemination of mental health records. Specifically, the defendant contends that the court’s order “permitting unrestricted access to all of these treaters, and to their records, by [the plaintiffs] counsel and by the [guardian ad litem], and ordering the defendant to execute releases for that purpose, without any prior showing of need and without any further court order, would appear to be an unprecedented invasion of the relationship between the defendant and his therapists. This order of unlimited disclosure, moreover, is within the context of other orders which compel the defendant to engage such therapists as a condition of contact with his children.”

At the outset, we note that the defendant’s argument misconstrues the scope of the court’s order. We do not agree that the order pertaining to dissemination of information concerning the defendant’s compliance with treatment allows for “unrestricted access” to the “treaters” and “unlimited disclosure” by them of his mental health records. Rather, the court’s order is concerned solely with the procedure that shall occur if and after the issue of his unsupervised visitation with either of the children is presented to the court. If the issue of unsupervised visitation is not presented to the court, then the defendant is not required to provide the plaintiffs attorney or the guardian ad litem with access to his treating mental health professionals and their records. The court has provided the defendant with notice of the procedure to be followed and what he has to do, i.e., a “road map” of evidence it deems necessary for any hearing on unsupervised visitation. The focus of the order is on information necessary to determine if it is in the best interests of the children for the defendant to have unsupervised visitation and in part that question is to be answered by the professionals engaged by the defendant. To prepare for a hearing on any motion for unsupervised visitation and to determine whether to support or oppose any such motion, the plaintiff and the guardian ad litem reasonably require information about the defendant’s then current mental health, including but not limited to the status of his apparent delusional disorder. The court’s order narrowly tailors disclosure to the plaintiffs attorney and the guardian ad litem to information about issues likely to arise in connection with any motion for unsupervised visitation filed by the defendant. Furthermore, the order does not compel, as the defendant contends, the defendant “to engage such therapists as a condition of contact with his children.” To the contrary, the court’s order currently provides the defendant with supervised visitation with his children.

Although the defendant cites a number of statutory provisions, including General Statutes §§ 52-146c, 52-146d, 52-146e, 52-146q and 52-146s, and 42 U.S.C. §§ 1320d-5 and 1320d-6, in support of his argument that the court’s order violates public policy, we note that the defendant makes no mention of the numerous exceptions to those statutory protections. See, e.g., General Statutes §§ 52-146c (c) (1), 52-146Í, 52-146q (c) (3) and 52-146s (c); 45 C.F.R. § 164.512 (e). Specifically, § 52-146c (c) provides in relevant part: “Consent of the person [who consults a psychologist for purposes of diagnosis or treatment] shall not be required for the disclosure of such person’s communications: (1) If a judge finds that any person after having been informed that the communications would not be privileged, has made the communications to a psychologist in the course of a psychological examination ordered by the court, provided the communications shall be admissible only on issues involving the person’s psychological condition . . . .”

The court’s order concerning unsupervised visitation is prospective in nature, requiring the defendant to cause the disclosure of the specified information to the plaintiffs attorney and the guardian ad litem only in the event that the issue of his unsupervised visitation with either or both of the children is presented to the court. In light of the defendant’s history, mental health issues and behavior, and through its order, the court has put the defendant on notice of what it will expect from him and his treating professionals in any court proceeding in which his unsupervised visitation with the children is considered. Therefore, the defendant is on notice that his future communications with his treating professionals will not be protected by any statutory or common-law privileges under such circumstances. The information encompassed by the court’s order clearly is relevant to any consideration of unsupervised visitation. See General Statutes § 46b-56 (c). Accordingly, we determine that the court did not abuse its discretion in entering such an order.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, in its September 30,2010 memorandum of decision, the court resolved the plaintiffs motion for modification of custody and supervised visitation, motion for passports and travel, motion for contempt and motion regarding child support. In addition, the court resolved the defendant’s motion for contempt, motion to transfer the case to the Regional Family Trial Docket at Middletown, motion to modify child support and arrearage, motion for legal fees, motion for visitation and motion for a mistrial.

       The court’s order modified the original dissolution order, which provided that “[u]nder no circumstances shall the minor children be permitted to travel with either party to a country that has not ratified the Hague Convention or is on the list of countries for which the United States has not accepted accessions.”

       The plaintiff notes that Russia recently has filed its accession to the Hague Convention’s child abduction provisions, although the United States has yet to accept Russia’s accession. See Status Table, Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, available at http://www.hcch.net/upload/abductoverview_e.pdf (last visited April 27, 2012).

       We also note that the orders provide that for travel outside the United States or for travel within the United States exceeding ten days, the plaintiff must inform the defendant and the guardian ad litem within five days after departure of “the departure date, the destination and the return date by way of notice from her attorney.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WILLIAM BOCZER ET AL. v. ENZO SELLA ET AL.
    (AC 32838)
    Lavine, Bear and Mihalakos, Js.

      Argued November 15, 2011
    officially released May 8, 2012

      Paul J. Pacifico, for the appellants (jplaintiffs).

      Ellen M. Costello, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The plaintiff, William Boczer, individually and as executor of the estate of his wife, Patricia Ann Boczer (decedent), appeals from the judgment of the trial court awarding the defendants Enzo Sella and Connecticut Orthopaedic Specialists, P.C., expert witness fees as taxable costs. On appeal, the plaintiff claims that there was insufficient evidence to support the trial court’s finding that the expert witness fees awarded were reasonable. We affirm the judgment of the trial court.

The plaintiff brought this action against the defendants, asserting two claims: one in his capacity as the executor of the decedent’s estate for medical malpractice, and one in his individual capacity for loss of consortium. Boczer v. Sella, 113 Conn. App. 339, 341, 966 A.2d 326 (2009). The jury returned a verdict in favor of the defendants on both claims, and the court rendered judgment in accordance therewith. Id. Thereafter, the defendants filed a bill of costs seeking, in part, $21,915.97 for expert witness fees. The clerk of the court entered an order of taxation and awarded the defendants $18,116.97 for expert witness fees. The plaintiff filed a motion for review of the order of taxation, which the trial court, Hon. Edward R. Karazin, Jr., judge trial referee, denied because it found the clerk’s review of the plaintiffs objections to be accurate. Id., 342.

The plaintiff appealed from that judgment, claiming that the court improperly (1) taxed the expert witness fees, because there was insufficient evidence concerning the reasonableness of the fees, and (2) taxed the total bill of costs against the plaintiffs loss of consortium claim. Id., 342, 345. This court concluded that, because the only evidence submitted to the trial court was the expert witnesses’ invoices, the trial court's finding regarding the reasonableness of the fees “was premised on an inadequate evidentiary foundation” and, therefore, was clearly erroneous. Id., 345. This court, however, declined to review the plaintiffs second claim because the trial court did not address it specifically and the plaintiff failed to seek an articulation. Id., 346-47. Accordingly, this court reversed the judgment of the trial court “as to the claim of improper taxation of expert fees,” remanded the case “for further proceedings on that claim,” and affirmed the judgment “in all other respects.” Id., 347.

Thereafter, the trial court, Mintz, J., held a hearing on the reasonableness of the expert witness fees, during which the court admitted into evidence deposition testimony from the three expert witnesses at issue: Dick-erman Hollister, Jr., a board certified hematologist oncologist; Mark Mizel, a board certified orthopedic surgeon with a specialty in foot and ankle surgery; and Kevin P. Shea, a board certified orthopedic surgeon. After hearing argument from the parties, the court cited Rose v. Jolly, 48 Conn. Sup. 606, 854 A.2d 824 (2004), which applied a seven factor standard derived from the federal courts; see Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D. Del. 2003); to determine the reasonableness of expert witness fees under Practice Book § 13-4 (3) for time spent responding to discovery. The court found that Hollister’s fee of $2000 was reasonable and Mizel’s fee of $10,115.97 and Shea’s fee of $9800 were unreasonable. The court reduced Mizel’s fee to $7115.97 and Shea’s fee to $5400, thus awarding the defendants a total of $14,515.97 for expert witness fees.

In this appeal, the plaintiff claims that there was insufficient evidentiary support for the trial court’s finding that the fees that it awarded were reasonable. “[T]he reasonableness of a particular fee is a question of fact [and] [w]e will upset a factual determination of the trial court only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Boczer v. Sella, supra, 113 Conn. App. 344. We conclude that the trial court’s finding that the expert witness fees awarded were reasonable was not clearly erroneous. Each witness testified as to his expertise, his experience and the basis on which he computed his fee. We cannot conclude, on the basis of our review of the record, that a mistake has been committed.

The judgment is affirmed.

       We refer in this opinion to William Boczer in both capacities as the plaintiff.

       The plaintiff brought the action against several other defendants but withdrew those claims prior to trial. We therefore refer to Sella and Connecticut Orthopaedic Specialists, P.C., as the defendants in this opinion.

       General Statutes § 52-260 (f) provides in relevant part: “When any practitioner of the healing arts, as defined in section 20-1 . . . gives expert testimony in any action or proceeding ... the court shall determine a reasonable fee to be paid to such practitioner of the healing arts . . . and taxed as part of the costs in lieu of all other witness fees payable to such practitioner of the healing arts . . . .” (Emphasis added.)

       The plaintiff also attempts to resurrect his claim that the bill of costs should not have been taxed against his loss of consortium claim. We agree with the trial court that because this court, in the plaintiffs first appeal, affirmed the judgment of the trial court on this claim, it was not properly before the trial court on remand. See Boczer v. Sella, supra, 113 Conn. App. 347. We therefore decline to address this claim.


text:
    MIECZYSLAW WISNIEWSKI ET AL. v. TOWN OF DARIEN ET AL.
    (AC 31812)
    Lavine, Bear and Mihalakos, Js.

      Argued November 15, 2011
    officially released May 8, 2012

      Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellants (named defendant et al.).

      Minor C. Sterling, with whom were J. Craig Smith and, on the brief, William M. Bloss, for the appellees (plaintiffs).
   Opinion

BEAR, J.

The defendants, the town of Darien (town) and Michael Cotta, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Mieczyslaw Wisniewski and Jolanta Wisniewski, after a jury trial in this personal injury action. On appeal, the defendants claim that the court (1) improperly refused to direct the verdicts in their favor as a matter of law and (2) improperly refused to set aside the jury’s verdicts and to render judgment in their favor based on controlling authority and the great weight of the evidence. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. On July 11, 2006, the plaintiffs were injured when a tree within the town’s right-of-way toppled onto their vehicle in front of 35 Rings End Road, a residential property in the town of Darien (the property).

Prior to the plaintiffs’ accident, the town had been notified on several occasions in 2002 and 2003 by Kristin Doble, an owner of the property, about the deteriorated condition of some of the trees located along the roadway. According to records maintained by the town’s department of public works, Doble contacted the town on June 18, 2002, stating that her arborist had determined that five trees located near the roadway “need attention.” On October 8, 2002, Doble again contacted the town, noting that a number of limbs had fallen from trees located near the roadway. On October 19, 2002, Doble requested that the town send someone to examine a “[h]ollow” tree located near her front gate, next to the roadway, that had lost a “leader.”

At both the time of Doble’s complaints and the time of the plaintiffs’ accident, Cotta was the town’s tree warden. Pursuant to statute, Cotta was responsible for the care and maintenance of trees located along certain public rights-of-way within the town’s geographic limits. See General Statutes § 23-59. There were no express town charter provisions, rules or ordinances directing Cotta’s duties as tree warden.

In 2006, the plaintiffs commenced this personal injury action against the defendants in the Superior Court. The original complaint contained claims of negligence and loss of consortium against Cotta, and sought indemnification against the town pursuant to General Statutes §§ 7-465 and 7-101a. In addition, the complaint contained claims for liability pursuant to General Statutes §§ 52-557n and 13a-149 against the town.

The defendants moved to strike all counts in the complaint on the ground that the plaintiffs’ action was barred by application of the doctrine of governmental immunity. That motion was denied. The defendants then filed an answer and special defenses, including the special defense of governmental immunity. Thereafter, the defendants moved for summary judgment, arguing, in part, that governmental immunity barred the plaintiffs’ claims. The court denied the defendants’ motion for summary judgment, and the case proceeded to a jury trial.

After the close of the plaintiffs’ case-in-chief, the defendants moved for directed verdicts. Again, the defendants argued that the plaintiffs’ action was barred by the doctrine of governmental immunity. The court reserved judgment on that motion, and the case proceeded to deliberation, after which the jury returned verdicts for the plaintiffs. In response to interrogatories, the jury found that the plaintiffs had established the negligence of the defendants under § 52-557n by a preponderance of the evidence and that such negligence was the proximate cause of the plaintiffs’ injuries. The jury further found that, although the defendants had established by a preponderance of the evidence that their duty to maintain the subject tree was public in nature, the defendants failed to establish that their duty to inspect, maintain and remove the tree was discretionary. Jolanta Wisniewski was awarded $200,000, and Mieczyslaw Wisniewski was awarded $1.5 million in damages.

Thereafter, the defendants filed a motion to set aside the verdicts, and the court denied both the previously filed motion for directed verdicts and the motion to set aside the verdicts. This appeal followed.

On appeal, the defendants claim that the court erred in failing to direct or to set aside the verdicts on the ground that they are entitled to governmental immunity. Specifically, the defendants argue that the jury verdicts are contrary to law and against the great weight of the evidence. The defendants do not raise claims attacking the jury’s findings with regard to proof of negligence or causation, nor do they claim error with regard to the court’s jury instructions.

“Our well settled standard of review for a motion to direct a verdict is the same as that employed for a motion to set aside a verdict. . . . Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony.” (Citation omitted; internal quotation marks omitted.) Mips v. Becon, Inc., 70 Conn. App. 556, 558-59, 799 A.2d 1093 (2002). “Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Kramer v. Petisi, 91 Conn. App. 26, 37, 879 A.2d 526 (2005), aff'd, 285 Conn. 674, 940 A.2d 800 (2008).

I

The defendants first claim that the court erred in failing to direct or to set aside the verdicts based on controlling authority establishing that all of Cotta’s duties as tree warden, including the duty to inspect, are discretionary. The defendants argue that the prevailing law establishes that the duties of a tree warden are discretionary as a matter of law, and they cite § 23-59 and this court’s decision in DeConti v. McGlone, 88 Conn. App. 270, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005), in support of their position.

As a general rule, “a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.” Williams v. New Haven, 243 Conn. 763, 767, 707 A.2d 1251 (1998). “General Statutes § 52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages. . . . One such circumstance is a negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties. General Statutes § 52-557n (a) (1) (A). General Statutes § 52-557n (a) (2) (B), however, explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. . . .

“Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.” (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).

We begin our analysis by examining what impact, if any, DeConti has on the present matter. That case involved the application of the identifiable victim subject to imminent harm exception to discretionary immunity, raised on appeal after the trial court rendered judgment granting a motion to strike. DeConti v. McGlone, supra, 88 Conn. App. 274-75. Nonetheless, the defendants place great emphasis on the following language in DeConti: “In the present case, the duty to inspect and to care for trees undoubtedly involves the exercise of judgment, and, as such, is properly classified as a discretionary act.” Id., 273.

Reviewing the appellate record and briefs in DeConti, it is apparent that the plaintiff in that case conceded that the duties of a municipality and its employees as they relate to the care of trees, under the facts presented, were discretionary. DeConti v. McGlone, Appellate Court Records & Briefs, January Term, 2005, Plaintiffs Brief p. 6 (“ [i]t is conceded that any duty owed by [the defendants] to the plaintiff was discretionary or ‘governmental’ in nature”). Accordingly, the question of whether a tree warden’s duties are discretionary or ministerial in nature was not contested; consequently, that court’s statement regarding the discretionary nature of a duty to inspect or to care for trees properly is viewed as dictum. The plaintiffs in the present case have made no similar concession concerning the nature of Cotta’s duties as tree warden. Moreover, in contrast to DeConti, this case does not involve a challenge to a motion to strike. In light of the foregoing distinctions, we determine that DeConti does not control the present matter.

Turning to § 23-59, we agree with the defendants that the statute’s language provides that many, but not all, of the duties of a tree warden involve the exercise of discretion. We are mindful, however, that our scope of review on either a motion to set aside or to direct a verdict involves more than an isolated examination of the language of relevant statutes or a consideration of the allegations of the complaint; unlike the court in DeConti, which merely was reviewing the legal sufficiency of the complaint in considering the defendants’ motion to strike; DeConti v. McGlone, supra, 88 Conn. App. 271; we must consider all the evidence presented to the jury, along with any reasonable inferences that the jury could have drawn. See Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989) (“[w]e must consider the evidence, including reasonable inferences which may be drawn therefrom, in the fight most favorable to the parties who were successful at trial” [internal quotation marks omitted]).

“[T]he determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . .” (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010); see Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988); see also Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive. See, e.g., Violano v. Fernandez, 280 Conn. 310, 323-24, 907 A.2d 1188 (2006). Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive. See, e.g., Gauvin v. New Haven, supra, 186-87 (testimony providing evidence of nature of duty).

On the basis of our review of the record, we conclude that there is evidence from which the jury reasonably could have found that some of Cotta’s duties as the town’s tree warden, including a duty to inspect upon receipt of a complaint concerning a potentially hazardous tree, were ministerial. Although the town maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works, Darren Oustafine, testified at trial that the general direction provided to Cotta upon receipt of a complaint “is always the same, look at the tree, make a determination. Is it a safety concern? Is it a priority?” Moreover, Cotta himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretion-ary duty to perform an inspection.

In light of the evidence adduced, including Cotta’s own statements, which were couched in mandatory language, it was appropriate for the court to decline to direct or to set aside the verdicts on the basis that the defendants’ actions as a whole were discretionary as a matter of law.

II

The defendants next claim that the court erred in denying their motion to set aside the verdict because the jury’s finding that Cotta’s duties were ministerial was contrary to the law and against the weight of the evidence.

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Greci v. Parks, 117 Conn. App. 658, 667, 980 A.2d 948 (2009).

The defendants argue that the jury’s finding that Cotta had a ministerial duty to inspect the subject tree was not supported by the evidence. Specifically, the defendants contend that Doble’s complaints did not reference hazardous trees specifically, and, thus, any alleged ministerial duty on the part of Cotta to inspect potentially hazardous trees was never triggered. Furthermore, the defendants argue that, in response to Doble’s initial call, the evidence provides that Cotta, in fact, did drive to the property and perform a quick visual inspection of the trees. Because the weighing of credibility is a function of the fact finder; Kiniry v. Kiniry, 299 Conn. 308, 329, 9 A.3d 708 (2010); we are not persuaded by the defendants’ arguments. Although there may have been some evidence offered to support the defendants’ contention, the jury did not have to credit this evidence.

A review of the record in this case demonstrates that there was evidence from which the jury reasonably could have concluded that the defendants received several calls from Doble regarding potentially hazardous trees and that, in response, Cotta failed to perform his nondiscretionary duty to inspect these trees upon receipt of the complaints. First, the town’s work orders document that Doble lodged seriatim complaints with the town regarding trees that “need attention,” were losing limbs, and were “dead” or “[hjollow.” Although Bonington provides that a predicate discretionary determination as to specific facts at issue often precedes any subsequent ministerial response to those facts, the present matter is distinguishable. See Bonington v. Westport, supra, 297 Conn. 309 (“even when the duty to respond to a violation of law is ministerial because that specific response is mandated, the predicate act — determining whether a violation of law exists — generally is deemed to be a discretionary act” [emphasis in original]). In this case, however, the plaintiffs provided evidence through Cotta’s own testimony that he had a nondiscretionary duty to inspect the trees on the town’s right-of-way in front of the property after receiving Doble’s calls. Specifically, when questioned whether he had a “duty to go out ... or make a response in some way,” Cotta answered in the affirmative. In addition, the plaintiffs provided the jury with documentation and photographs outlining the approximate location of the subject tree. From this evidence, the jury reasonably could infer that Doble repeatedly reported to the defendants potentially hazardous trees, including the subject tree.

Moreover, the plaintiffs’ primary argument to the jury was that Cotta never went to the property and performed an inspection. In support of their argument, the plaintiffs noted the absence of any documentation in the town’s work order records concerning an inspection by Cotta of the trees. Although Cotta testified at trial that he had performed a quick visual inspection of the trees, he contradicted his own testimony by agreeing that performing a quick visual inspection is “not the same thing as saying you inspected it at all . . . .” In addition, the plaintiffs’ counsel sought to impeach Cot-ta’s testimony through the introduction of deposition evidence, wherein Cotta admitted that he had not inspected the trees for decay and, furthermore, that he had not inspected the trees “for any reason.”

Furthermore, although Cotta testified at trial that he had gone to the property and pruned the subject tree in 2004, the plaintiffs’ counsel introduced deposition testimony wherein Cotta stated that he had not returned to the property between March 14, 2003, and July 11, 2006. Thus, numerous issues were raised concerning Cotta’s credibility, and the jury was free to decide that Cotta was not credible and to resolve the claim in favor of the plaintiffs that he failed to respond to any of the complaints by going to the property to inspect the trees. See Kiniry v. Kiniry, supra, 299 Conn. 329 (“It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness’ testimony. . . . Questions of whether to believe or to disbelieve a competent witness are beyond our review.” [Internal quotation marks omitted.]).

The defendants further argue that the evidence does not support the jury’s findings that Cotta breached ministerial duties to maintain and to remove the subject tree. In addition, the defendants contend that, even if the jury could have found that Cotta failed to inspect the subject tree, such finding would not foreclose the application of governmental immunity. Specifically, the defendants argue that the “fundamental duties at issue, namely the manner in which the inspection was or is to be performed, the identification of the subject tree as an immediate hazard, and the decision to remove the tree remain within Cotta’s discretion.” Thus, the defendants contend that the doctrine of governmental immunity should apply to bar the plaintiffs’ claims because all of Cotta’s alleged duties either lead to or follow from a discretionary determination as to the condition of the subject tree. We disagree.

It is undisputed that Cotta, acting in his capacity as the town’s tree warden, is a municipal employee. Therefore, Cotta, and, by extension, the town, may be hable for the misperformance of ministerial acts, but are entitled to immunity in the performance of governmental acts, including acts that are discretionary in nature. See Violano v. Fernandez, supra, 280 Conn. 318. The defendants’ argument, however, misses the point. In order for the defendants to benefit from the application of governmental immunity, Cotta must have performed a governmental act. As noted, the jury was free to assess Cotta’s credibility and to determine that he had failed to perform an inspection of the subject tree. By failing to perform any inspection upon receipt of Doble’s seriatim complaints — an act that the jury, based on the evidence, reasonably could have found to be his ministerial duty — Cotta never placed himself in a position from which he could exercise his discretion and, hence, entitle the defendants to immunity for his actions. Compare Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) (if inspection occurs, method of performing inspection involves exercise of discretion).

On the basis of our review of the record, and in consideration of the procedural posture in which this appeal comes before us, the defendants have not established any basis for us to vacate the jury’s verdict and to afford them the protection of governmental immunity. To hold otherwise would incentivize the inaction of public officials faced with the duty of performing acts that they, themselves, admit are ministerial in nature. The jury reasonably could have concluded that Cotta failed to perform his ministerial duty to inspect a potentially hazardous tree despite undisputed receipt of multiple reports of its deteriorating condition and that his failure to act proximately caused the plaintiffs’ injuries in this case. Accordingly, we conclude that the court did not abuse its broad legal discretion in refusing to direct or to set aside the jury’s verdicts.

The judgment is affirmed.

In this opinion the other judges concurred.

       Jonathan Peter and Nancy Peter were also named as defendants in the plaintiffs complaint; however, because the plaintiffs withdrew the action against them, they are not parties to this appeal. We therefore refer to the town and Cotta as the defendants.

       The defendants also claim that none of the exceptions to governmental immunity for discretionary acts apply and that General Statutes § 52-557n (b) (8) is inapplicable to the present matter. Because we find no error in the court’s denial of the motions to direct and to set aside the jury verdicts, we need not reach these additional claims.

       The parties stipulated that the tree that fell on the plaintiffs’ vehicle “was, before it fell, in whole or in part within the right-of-way, also known as the limit, of Rings End Road, a public road of the [t]own of Darien, so that under [General Statutes] §§ 23-59 and 23-65 (b), the [t]own of Darien tree warden had care and control of that tree.”

       In addition, on March 14,2003, a hollow tree on the property was posted for removal by Cotta after a report from the Connecticut Light and Power Company, and, on or about April 10, 2003, it was cut down by a tree removal contractor. On March 22,2004, the remaining tree stump was removed from the property. No further actions with regard to the property were recorded in the town’s records prior to the plaintiffs’ accident.

       A leader is defined as “a primary or terminal shoot of a plant (as a main branch of an apple tree or the terminal shoot of a spruce tree) . . . the upper portion of the primary axis of a tree esp. when extending beyond the rest of the head and forming the apex . . . .” Webster’s Third New International Dictionary (2002) p. 1283. The record contains no evidence indicating that the tree that fell on the plaintiffs’ vehicle had lost a leader.

       At the conclusion of their evidence, the plaintiffs moved to amend their complaint to conform to the evidence. The defendants objected. The court granted the plaintiffs’ motion. In their amended complaint, the plaintiffs omitted counts alleging violations of § 13a-149. That amended complaint is the operative complaint in the present matter.

       Specifically, with regard to governmental immunity, the interrogatories provided, and the jury found, as follows: “1. Did the defendants establish by a preponderance of the evidence that their duty to maintain the tree that fell on the plaintiffs’ vehicle was a public duty, as defined by the Judge.
      “YES X NO _
      “2. Did the defendants establish by a preponderance of the evidence that their duty to inspect, maintain and remove the tree that fell on the plaintiffs’ vehicle was a discretionary act as defined by the
      “YES X NO _

       On appeal, neither party challenges the jury’s finding that Cotta’s duties were public in nature, nor do the defendants contest the propriety of the interrogatories.

       General Statutes § 23-59 provides: “The town or borough tree warden shall have the care and control of all trees and shrubs in whole or in part within the limits of any public road or grounds and within the limits of his town or borough, except those along state highways under the control of the Commissioner of Transportation and except those in public parks or grounds which are under the jurisdiction of park commissioners, and of these the tree warden shall take the care and control if so requested in writing by the park commissioners. Such care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any such public road or grounds. The tree warden shall expend all funds appropriated for the setting out, care and maintenance of such trees and shrubs. The tree warden shall enforce all provisions of law for the preservation of such trees and shrubs and of roadside beauty. The tree warden shall remove or cause to be removed all illegally erected signs or advertisements, placed upon poles, trees or other objects within any public road or place under the tree warden’s jurisdiction. The tree warden may prescribe such regulations for the care and preservation of such trees and shrubs as the tree warden deems expedient and may provide therein for a reasonable fine for the violation of such regulations; and such regulations, when approved by the selectmen or borough warden and posted on a public signpost in the town or borough, if any, or at some other exterior place near the office of the town or borough clerk, shall have the force and effect of town or borough ordinances. Whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden’s control, the tree warden may cause such tree or shrub to be removed or pruned at the expense of the town or borough and the selectmen or borough warden shall order paid to the person performing such work such reasonable compensation therefor as may be determined and approved in writing by the tree warden. Unless the condition of such tree or shrub constitutes an immediate public hazard, the tree warden shall, at least ten days before such removal or pruning, post thereon a suitable notice stating the tree warden’s intention to remove or prune such tree or shrub. If any person, firm or corporation objects to such removal or pruning, such person, firm or corporation may appeal to the tree warden in writing, who shall hold a public hearing at some suitable time and place after giving reasonable notice of such hearing to all persons known to be interested therein and posting a notice thereof on such tree or shrub. Within three days after such hearing, the tree warden shall render a decision granting or denying the application, and the party aggrieved by such decision may, within ten days, appeal therefrom to the superior court for the judicial district within which such town or borough is located. The tree warden may, with the approval of the selectmen or borough warden, remove any trees or other plants within the limits of public highways or grounds under the tree warden’s jurisdiction that are particularly obnoxious as hosts of insect or fungus pests.”

       In DeConti this court noted that “ ‘[t]he standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. ... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.’ . . . Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn. App. 352, 361, 849 A.2d 922 (2004). ‘[WJhere it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.’
        Doe v. Board of Education, 76 Conn. App. 296, 299 n.6, 819 A.2d 289 (2003).” DeConti v. McGlone, supra, 88 Conn. App. 271-72.

       For example, § 23-59 provides in relevant part: “Whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden’s control, the tree warden may cause such tree or shrub to be removed or pruned , . . .” (Emphasis added.)

       With regard to Doble’s calls to the town, the following trial examination took place:
      “[The Plaintiffs’ Counsel]: But you know what an arborist is?
      “[Cotta]: Yes.
      “[The Plaintiffs’ Counsel]: You’re one yourself?
      “[Cotta]: Yes.
      “[The Plaintiffs’ Counsel]: And an arborist is, actually, trained to be able to recognize decay in trees, are they not?
      “[Cotta]: Yes.
      “[The Plaintiffs’ Counsel]: And you agree that a trained arborist ought to be able to spot trees that are a potential hazard, correct?
      “[Cotta]: Yes.
      “[The Plaintiffs’ Counsel]: All you know is that an arborist says, a tree needs attention, it could mean that the tree is a potential hazard, right?
      “[Cotta]: It’s an ambiguous statement, it needs attention.
      “[The Plaintiffs’ Counsel]: Right. It could mean—
      “[Cotta]: I can’t determine what her arborist saw.
      “[The Plaintiffs’ Counsel]: That’s my point
      “[Cotta]: And the resident didn’t convey that to the work request.
      “[The Plaintiffs’ Counsel]: I hear you. That’s exactly my point. You didn’t know what needing attention meant, correct?
      “[Cotta]: No.
      “[The Plaintiffs’ Counsel]: It would have meant that the tree was just losing limbs, correct?
      “[Cotta]: Needed pruning, yes.
      * * *
      “[The Plaintiffs’ Counsel]: A sapling on the side of the road only four feet high, she could have been calling about that?
      “[Cotta]: Unlikely.
      “[The Plaintiffs’ Counsel]: That’s not what I’m asking you. I’m asking you, it could have been that, couldn’t it?
      “[Cotta]: Who would call about a sapling? Let’s be fair.
      “[The Plaintiffs’ Counsel]: As far as you know, in 2002, it could have been [a] sapling or it could have been a tree that just lost a couple of limbs, right?
      “[Cotta]: Yes.
      “[The Plaintiffs’ Counsel]: And could have been a tree that was a potential hazard for the people in the roadway, couldn’t it?
      “[Cotta]: Yes.

        “ [The Plaintiffs’ Counsel]: And so as the tree warden of the town of Darien, that’s a call that concerns you?
      “[Cotta]: It’s a general work order. Yeah, I’ll go out and take a look at it.
      “[The Plaintiffs’ Counsel]: That’s your duty to go out and have a look or to make a response in some way?
      “[Cotta]: Yes, I go out.
      “[The Plaintiffs’ Counsel]: That’s your duty, correct? That’s your duty to respond in some way?
      “[Cotta]: Yes.
      “[The Plaintiffs’ Counsel]: And as far as a tree needing attention, when you hear a report that arborist says that a tree needs attention because you don’t know exactly what it means, it could have meant potential hazard, and you knew that in 2002?
      “[Cotta]: [I]t could have been a potential hazard, yes.”

       Oustafine testified at trial that completed work order information for the town’s tree warden is entered into the town’s records, including a description of “whatever action he took.” Oustafine noted, however, that information regarding job completion is not always recorded with specificity. Oustafine also testified that Cotta would provide a narrative recitation of services rendered and hours worked when invoicing the town for his services.

       Furthermore, the plaintiffs’ expert witness opined that the subject tree would have exhibited signs of decay in 2002 and 2003, when Doble lodged her complaints with the town. Accordingly, the jury could infer that a reasonable tree warden, had he performed an inspection, would have determined that the subject tree was a hazard.


text:
    IN RE NICHOLAS B.

    (AC 33826)
    Bear, Espinosa and Sheldon, Js.
    Argued March 6
    officially released April 27, 2012

      Allen B., pro se, the appellant (respondent father).

      Barbara J. Ruhe, for the appellees (petitioner Ida S. et al.).

      Emily J. Moskowitz, for the appellees (respondent guardian Deborah R. et al.).

      John J. Ghidini III, guardian ad litem for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       April 27,2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent father, Allen B., who is self-represented in this appeal, appeals from the judgment of the trial court terminating his parental rights in his minor son, N. The respondent claims that (1) the court improperly found that he had abandoned N, (2) the court improperly found that the allowance of more time for the establishment of a parent-child relationship between him and N would be detrimental to the best interest of N and (3) he did not receive effective assistance of counsel during the termination proceeding. We affirm the judgment of the trial court.

In the adjudicatory phase of the termination proceeding, the court found by clear and convincing proof that the respondent abandoned N under General Statutes § 45a-717 (g) (2) (A) and that no ongoing parent-child relationship between the respondent and N existed under § 45a-717 (g) (2) (C). In the dispositional phase of the termination proceeding, the court found by clear and convincing proof that termination of the respondent’s parental rights was in the best interest of N under § 45a-717 (g) (1). After the court rendered judgment terminating the respondent’s parental rights in N, this appeal followed.

I

With regard to the first two claims in this appeal, we observe that “[o]ur standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. Our function is to determine whether the court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether a different conclusion might have been reached. Every reasonable presumption is made in favor of the trial court’s ruling.” In re Sarah S., 110 Conn. App. 576, 584, 955 A.2d 657 (2008); see In re Justice V., 111 Conn. App. 500, 512-13, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009).

Our thorough examination of the record and the arguments advanced on appeal leads us to conclude that the respondent has not demonstrated that error undermines the court’s judgment. The issues raised in these claims were analyzed and resolved properly in the court’s complete and well reasoned memorandum of decision. See In re Nicholas B., 52 Conn. Sup. 313, 44 A.3d 230 (2011). We adopt that decision as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., In re Mariah P., 109 Conn. App. 53, 55, 949 A.2d 1292, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).

II

We are left to address the respondent’s remaining claim, that his trial counsel rendered ineffective assistance. Our review of the respondent’s argument reveals that the respondent has done little more than summarily describe five alleged acts or omissions of his trial counsel. The respondent’s argument is devoid of any legal analysis, let alone citation to any authority. For these reasons, we deem the claim to be abandoned and do not reach its merits. See, e.g., Baker v. Baker, 95 Conn. App. 826, 833-34, 898 A.2d 253 (2006), and cases cited therein.

“While . . . [i]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party ... we are also aware that [although we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Keating v. Ferrandino, 125 Conn. App. 601, 604, 10 A.3d 59 (2010). The major deficiencies in the presentation of this claim, which undeniably interfere with the petitioners’ right to respond adequately to the claim, fall well outside of that degree of latitude afforded self-represented parties.

The judgment is affirmed.

       In 2009, a petition to terminate the respondent’s parental rights was brought in the Probate Court for the district of Berlin by the petitioners, Ida S., Nicholas S., and Charles S., maternal relatives of N. Pursuant to General Statutes § 45a-715 (g), the Probate Court transferred the case to the Superior Court on the motion of N’s coguardians, the respondents Deborah R. and Alberto R. The record reflects that N’s mother died on March 22, 2004. For convenience, we refer in this opinion to the respondent father as the respondent.

       “In Connecticut, a parent who faces the termination of his or her parental rights is entitled, by statute, to the assistance of counsel. General Statutes § 45a-717 (b). Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel.” (Internal quotation marks omitted.) In re Alexander V., 223 Conn. 557, 569, 613 A.2d 780 (1992).


author: WEST, J.

text:
    STATE OF CONNECTICUT v. CRAIG DAVIS
    (AC 33012)
    Lavine, Sheldon and West, Js.
    Argued January 5
    officially released May 15, 2012

      William B. Westcott, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Craig Davis, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3) and robbery in the first degree in violation of § 53a-134 (a) (3). On appeal, the defendant claims that the court improperly denied his motion for a thirty day continuance to permit him to conduct further DNA testing after the state expressed its intention to present at trial the newly enhanced audio portion of a videotaped interview with the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Matthew Barrett, was beaten and stabbed to death on the morning of May 5, 2005, at his business, Best Buy Auto, in New Haven. At approximately 7:30 a.m. that morning, Kraushon Clark, who had been doing carpentry work for the victim, arrived at Best Buy Auto and discovered the victim lying face-down in the garage surrounded by blood. Upon noticing the victim’s body, Clark was nearly struck in the face with a large object by an individual inside the garage bay. The same individual attempted to grab Clark’s jacket when Clark turned to run out of the building. After running out of the garage, Clark saw two black males run out of the garage and hop over a fence of an adjacent house. Clark then entered his car and attempted to chase down the fleeing men. When Clark spotted one of the two men talking on a cell phone near a diner on Forbes Avenue, that same man jumped over another fence and continued to flee. Clark then called the police to report the crime. Around the same time, two women who were exiting a gas station on Forbes Avenue had to stop their car abruptly when a Saturn automobile screeched to a stop in front of them. A black man matching the defendant’s description ran over to the car and got into the passenger seat and the automobile quickly sped off. The car was later identified as one owned by the codefendant, Tyehimba Adeyemi. Clark later identified the defendant from a photographic array as the man he had seen talking on a cell phone near the Forbes Avenue diner.

Records from Best Buy Auto indicated that the victim had sold the Saturn to Adeyemi two months prior to the victim’s murder. There were numerous telephone calls exchanged between Adeyemi’s cell phone and the defendant’s cell phone in the days before the murder. Adeyemi made a call to the defendant in the hour before the victim’s murder and another call at 7:58 a.m., following the murder. Later that same day, Adeyemi made calls to the defendant from the New York City area and from Virginia. In the following days, Adeyemi made more calls to the defendant from other southern states.

At Best Buy Auto, police discovered evidence of a struggle in the customer waiting area of the garage. In the first garage bay, police discovered the victim’s body lying on the floor surrounded by a large pool of blood. Inside the garage bay, blood was found on a fire extinguisher, a shovel, a folding knife, a broom, a box cutter knife, a pair of sunglasses and a metal door handle. Additionally, blood-like stains appeared on the victim’s tom jacket, vehicles parked inside the garage, the floor of the garage including a bloody footprint, a microwave oven and the inside of the closed garage door. DNA testing indicated that the victim’s DNA was consistent with the DNA found on the fire extinguisher, the shovel, the folding knife, the pair of sunglasses, the broom and on the metal door handle. DNA testing also indicated that the defendant’s DNA was consistent with the DNA found on the box cutter knife. Finally, DNA testing indicated that Adeyemi’s DNA was consistent with DNA contained on the victim’s bloodstained cell phone and cell phone holder recovered outside the garage.

On May 27, 2005, the defendant gave a voluntary interview to the police in which he stated that he was acquainted with Adeyemi and that they had engaged in dmg use together. The defendant stated in this interview that he had been at home on the morning of the victim’s murder, but he admitted that he had spoken by phone with Adeyemi on that day. The defendant also stated in the interview that the only time he had been to Best Buy Auto was with Adeyemi, when Adeyemi purchased his Saturn automobile from the victim. Despite denying any involvement in the murder, the defendant was arrested on June 29, 2005, and subsequently charged with felony murder in violation of § 53a-54c, conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 (a) (3) and robbery in the first degree in violation of § 53a-134 (a) (3). During a second interview with police, on the day of his arrest, the defendant again denied being present at Best Buy Auto on the date of the crime. In that interview, he again claimed that he had been at home on the morning of the victim’s murder and stated that he had been with Adeyemi at Best Buy Auto on a prior occasion. The defendant further stated that Adeyemi had a dispute with the victim and that the victim allegedly owed Adeyemi money.

On March 16, 2006, during a three hour interview preceding his polygraph examination by the state police, the defendant provided a new and different account of his whereabouts on the morning of the victim’s murder, admitting for the first time that he indeed had been present at the crime scene around the time of the victim’s murder. The defendant stated that on that morning, Adeyemi had picked him up and driven him to Best Buy Auto. When they arrived at Best Buy Auto, the victim had not yet arrived at work, so they went to a local diner for coffee. When they returned to Best Buy Auto, Adeyemi went inside and the defendant stayed in the car. The defendant stated that he became impatient waiting in the car, and so he went inside. Upon entering the garage, the defendant stated that he found the victim on the floor of the garage bleeding and Adeyemi holding a shovel. When Clark entered the garage bay, the defendant saw Adeyemi swing the shovel at him. The defendant stated that he then ran out of the garage, followed by Clark, who later spotted him in front of the Forbes Avenue diner, prompting him to continue fleeing from the area. The defendant’s statements during the interview preceding his polygraph examination were videotaped — a fact noted in a report by New Haven police Detective Martin Dadio.

The following procedural history is relevant to the disposition of the defendant’s claim. On September 3, 2008, the court began jury selection in the defendant’s trial. On September 24, 2008, thirteen days into jury selection, the state indicated that an audio recording of the prepolygraph interview, which had previously been inaudible, had been enhanced and made audible. Given the state’s intention to put the enhanced recording in evidence at trial, the defendant, on September 29, 2008, filed a motion for a continuance to delay the start of trial until October 30, 2008. In his motion, the defendant argued that, in light of the contents of the enhanced recording, his trial strategy would necessarily have to change from one in which the defendant had no involvement in the crime whatsoever to one in which he was merely present at the crime scene, but not a participant in the crime. As a result of this change in strategy, the defendant argued that he had a compelling need to test the twenty-one previously untested DNA swabs taken from the crime scene. Defense counsel, after consulting with the state forensic science laboratory (state laboratory), represented to the court that testing of the swabs “would take approximately a month.” The state did not take a position on the defendant’s motion.

The court denied the defendant’s motion for a continuance on September 30, 2008. Among its reasons for the denial, the court first noted that requests for continuances on the eve of trial are “frowned upon.” The court noted that the motion had been made during the jury selection process after thirteen jurors had already been selected. The court had contacted all previously selected jurors to ask them whether they could serve if the trial started one month later. Three jurors replied that they could not participate in the trial if it was delayed one month and four had not returned the clerk’s telephone call. The court also noted that the swabs had been available to both sides for testing for the past “two or three years.” In addition, the court observed that further DNA tests might or might not be helpful to the defense but could not completely exonerate him because previous DNA testing of other samples had revealed the presence of his DNA at the crime scene. For these reasons, the court rejected the defendant’s claim that denial of the motion for a continuance would interfere with his right to present a defense or his right to a fair trial. Although it denied the defendant’s motion to continue the start of trial for thirty days, the court stated that it was amenable to revisiting the need for a continuance at a future point if there was reason to do so. The defendant proceeded to have the twenty-one swabs sent to the state laboratory for DNA testing and the court ordered that such testing be expedited.

On October 7, 2008, the defendant filed a motion in limine seeking sanctions for the late disclosure of the defendant’s March 16,2006 videotaped polygraph interview with state police. In his motion, the defendant argued that the statements he made during the interview should be excluded because they were prejudicial and that the state should not benefit from their late disclosure. The court noted that while neither the prosecutor nor defense counsel was aware of the defendant’s incul-patory statements until an enhanced version of the tape was made available on September 24, 2008, the tape had been recorded nearly two and one-half years earlier. The court thus denied the defendant’s motion in limine, concluding that the enhanced tape’s disclosure was not in fact late.

On Thursday, October 9, 2008, outside the presence of the jury, the state informed the defendant that it had received a preliminary oral report from the state laboratory that the defendant’s DNA was consistent with him being a contributor to the DNA sample on one of the newly tested swabs from the crime scene. On Friday, October 10,2008, the state relayed this information to the court and stated that a written report was expected by Wednesday or Thursday of the following week. The same day, the state rested its case-in-chief and the defendant also rested without calling any witnesses. On Tuesday, October 14,2008, following closing arguments by both parties, the state received a copy of the written report of the DNA testing sent by the state laboratory. The test results, which were the same as those reported in the preliminary oral report from the week before, were that the defendant’s DNA was consistent with him being a contributor to the mixture of DNA found on the garage door and that the victim could not be eliminated as a minor contributor to the mixture.

After receiving the written report, the state did not move to reopen the evidence. Defense counsel ultimately refused to take a position on whether to move to reopen the evidence to introduce the new DNA tests. The court subsequently charged the jury. The defendant was convicted of all charges. On December 12, 2008 the court denied the defendant’s motion for a new trial and imposed a total effective sentence of fifty-five years incarceration. This appeal followed.

On appeal, the defendant claims that the court violated his constitutional rights by improperly denying his motion for a continuance in order to test DNA samples of previously untested swabs from the crime scene. We disagree.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . .
“A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Hamilton, 228 Conn. 234, 239-40, 636 A.2d 760 (1994). “In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis.” Id., 242.

Among the factors that may enter into the court’s exercise of discretion in considering a request for a continuance are “the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself . . . .” Id., 240. “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) State v. Calderon, 82 Conn. App. 315, 320, 844 A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523, cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004).

Lastly, we emphasize that “an appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” State v. Hamilton, supra, 228 Conn. 242.

Applying these factors to the present case, we conclude that the court did not abuse its discretion when it denied the defendant’s motion for a continuance. First, the court properly took into account the timing of the request and the length of the likely delay. At the time of the defendant’s motion for a continuance on September 29, 2008, his arrest for the victim’s murder had occurred more than three years earlier on June 29, 2005. The case had been continued at the request of the defendant on at least two prior occasions. The defendant had more than two years to have the swabs tested. The defendant’s motion for a continuance was made on the fourteenth day of jury selection when thirteen jurors already had been selected. The court polled the jurors who had already been chosen, and the majority of them either were unable to serve as jurors if the trial were delayed for one month or the clerk was unable to reach them. “[A] trial court properly may consider interests of judicial economy when exercising its discretion in granting or denying a request for a continuance.” State v. Delgado, 261 Conn. 708, 716, 805 A.2d 705 (2002). In the present case, “it was reasonable for the trial court to have concluded that a thirty day continuance would have resulted in an unreasonably lengthy delay that would have imposed a significant burden on the witnesses and jurors.” Id.; see also State v. Brown, 242 Conn. 445, 453-54, 460-61, 700 A.2d 1089 (1997) (affirming denial of midtrial motion for continuance to test newly available DNA evidence on basis of consideration of length of requested continuance and negative effect on jury); State v. Ortiz, 40 Conn. App. 374, 386-87, 671 A.2d 389 (affirming trial court’s denial of defendant’s motion for continuance made after six jurors had been picked and witnesses had been subpoenaed), cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Accordingly, the trial court reasonably concluded that judicial economy would not have been served by granting a thirty day continuance.

Second, the reasons the defendant proffered in support of his request for a continuance were speculative. Our Supreme Court has held that “a trial court does not act arbitrarily or unreasonably when it denies a motion for a continuance that is supported by mere speculation.” State v. Delgado, supra, 261 Conn. 714-15. In making his argument for a continuance, the defendant acknowledged that his trial strategy changed from one in which he perceived the state’s case to consist of “a [single] DNA hit on the defendant [on the box cutter found at the crime scene] and circumstantial evidence putting him at the scene . . . and denials that he was there,” to one of mere presence at the scene of the crime without participation in the victim’s murder. In support of his new defense strategy, the defendant requested further DNA testing of twenty-one previously untested swabs from the crime scene. The defendant was therefore, in essence, gambling that the new testing would not further link him to the crime scene. Prior to the court’s decision on the defendant’s motion, defense counsel acknowledged that further testing could “blow up,” further implicating the defendant. More DNA testing could have further implicated the defendant in the crime if more of the defendant’s DNA was found at the crime scene. In no event, however, could further testing have exonerated him, because the state’s testing already linked his DNA to blood found on the box cutter apparently used to assault the victim. The defendant’s request for a delay was an attempt, in essence, to gamble on the possibility of diluting the evidentiary significance of the single specimen of the defendant’s blood found at the crime scene by demonstrating that his DNA was not found elsewhere at the crime scene. We conclude that the speculative nature of the reasons advanced by defense counsel in support of his request for a continuance gave the trial court no reason to grant his motion for a continuance. See State v. Delgado, supra, 261 Conn. 714-16.

Third, the defendant is unable to show any specific harm that resulted from the court’s denial of his request for a continuance. At the time that the court denied the defendant’s motion for a continuance to have the previously untested swabs tested, the court stated that it would revisit the need to grant a continuance based on the results of the DNA testing. The court ordered the state to send the swabs to the state laboratory for testing and entered an order on October 1, 2008, to expedite the testing of the swabs. At that point, the state laboratory estimated that the testing would not be complete until October 30, 2008. On October 10, counsel for both parties and the court received a preliminary oral report from the state laboratory that linked the defendant’s DNA to a mixture of DNA found on the garage door at the crime scene. The state laboratory also indicated that a full, written report would be available within a week. Following the disclosure of that preliminary report, the state indicated that it would rest its case pending a request to reopen evidence to admit the new DNA evidence. After the court addressed the preliminary DNA report with the parties, the jury was brought back in and the state rested its case. Subsequently, the defendant rested his case without presenting any evidence. On the morning of October 14, 2008, four days after both parties were informed that the preliminary DNA report further implicated the defendant, the parties gave final arguments. Prior to the jury being charged, the state indicated that it had received a copy of the final DNA report from the state laboratory. The court asked both parties whether they would be moving to reopen the evidence on the basis of the report. The state indicated that it would not move to reopen the evidence. The court then stated that if the defendant made a motion to reopen the evidence, despite the fact that it came after closing arguments, the court would be amenable to reopening the evidence if it served the interests of justice. Defense counsel argued that the data in the report could be interpreted in different ways and that without examining the DNA work sheets, which were not included in the written report, he was not prepared to move to reopen the evidence. Ultimately, defense counsel stated that he would not take a position either way on reopening the evidence and the court subsequently delivered the jury charge.

The defendant claims that by the time he presented his closing argument, he had already committed himself to the strategy of minimizing the significance of the single specimen of the defendant’s DNA which was found at the scene of the crime. Defense counsel was aware of the results of the DNA testing before the court proceeded with its jury charge, despite being given the opportunity by the court to consider reopening the evidence to present the new DNA evidence. Defense counsel argued that he was already tied to the strategy presented to the jury during closing argument, which was to claim the mere presence of his client at the crime scene, without participation by him in the crime. As part of that strategy, defense counsel argued that the evidence presented at trial showed that at the entire crime scene there was only a single specimen of the defendant’s DNA linking him to the crime scene, which was consistent with the defendant’s theory that his codefendant was the sole actor in the commission of the victim’s minder. The defendant contends that by October 14, following closing argument, it would have been inconsistent with the position he took during closing argument to introduce evidence of a second specimen of the defendant’s DNA linking him to the crime scene. Defense counsel, however, was alerted to that new information four days earlier, when the state laboratory relayed a preliminary, oral report that indicated that there was a second specimen of the defendant’s DNA at the crime scene. Defense counsel thus had the opportunity to determine whether to move to reopen the evidence prior to presenting his closing argument. Instead, during his closing argument, defense counsel chose to take the position that there was only a single specimen of the defendant’s DNA linking him to the crime scene, despite counsel’s knowledge that supplemental testing had found a second specimen of the defendant’s DNA at the crime scene. When presented with the state laboratory’s final written report after closing argument, which was consistent with the preliminary oral report, defense counsel again failed to move to reopen evidence based on the strategy that he chose to take at closing argument, despite his knowledge of evidence to the contrary.

When the court denied the defendant’s motion for a continuance, the court stated that it would be receptive to continuing the trial if the need arose. The court did exactly that. After the expedited testing results became available, first in a preliminary oral report and then in the final written report, the defendant twice decided not to move to reopen the evidence despite the court’s representation that it would be amenable to so doing in order to admit the new test results. The defendant’s claim on appeal is inconsistent with the position he took at trial. We conclude, therefore, that “[t]here is nothing in the record to indicate that the defendant’s ability to defend himself was impaired substantially by the trial court’s decision to deny defense counsel’s request for a continuance.” State v. Delgado, supra, 261 Conn. 717.

Finally, the defendant argues that the court was unreasonable in allowing the state to use the “late” inculpatory statements from the March 16, 2006 polygraph interview, but not allowing the defendant to access “critical scientific evidence.” We disagree.

The essence of the defendant’s argument is that he was surprised by the state’s disclosure of the tape and that due to the late disclosure of such critical evidence, it was unfair not to allow the defense time to test the remaining DNA samples from the crime scene. First, it is worth noting again that the court found that the statements made by the defendant on the tape did not constitute a late disclosure of evidence. Although the court did note that prior to the enhancement of the tape, the police officers who were present during the interview that preceded the polygraph examination and the defendant himself were the only individuals who were aware of the statements made by the defendant, the substance of the defendant’s statements was not new evidence. Whether or not defense counsel was aware of the substance of the statements that were recorded on the tape, defense counsel was aware of the presence of the tape and asked the state about it prior to the commencement of trial. The defendant argues that he believed that the tape was unusable as evidence; however, there is no reason that the substance of the statements made by the defendant during that interview would not have been admissible evidence at trial. Furthermore, defense counsel had nearly two years to ask his client what he said to the police during the prepolygraph interview in anticipation of the state calling as witnesses at trial, either the state trooper who conducted the interview or the New Haven police officer who observed it.

On the basis of our review of the aforementioned factors, we cannot conclude that the court’s denial of the request for a continuance was arbitrary or unreasonable under the circumstances of the case. The court, therefore, did not abuse its discretion in denying the defendant’s request. See State v. Hamilton, supra, 228 Conn. 249-50.

The judgment is affirmed.

In this opinion the other judges concurred.

       New Havenpolice Officer Andrew Gambardella testified that Clarkidenti-fied the man who swung the object at him inside Best Buy Auto as a tall black man wearing a dark hooded sweatshirt or “hoodie.” During Clark’s testimony, he stated that he could not identify the man who swung the object at him.

       The forensic science examiner who conducted the DNA testing in this case testified that, generally, forensic examiners do not indicate that any individual is a source of any DNA sample tested, but rather conclude that the results are consistent with that person being the source of or a contributorto that DNA sample. Such testimony is frequently accompanied by a statistical calculation as to the probability that the tested person is in the sample.

       The defendant did not state how long it had been since he had accompanied Adeyemi to Best Buy Auto. Evidence from the Best Buy Auto records showed that Adeyemi purchased his Saturn there on March 5, 2005, which was two months before the victim’s murder.

         Defense counsel Thomas Ullman told the court that the defendant agreed to submit to a state police polygraph examination. Both of the defendant’s counsel accompanied the defendant to the polygraph examination but were not present during the examination. Ullman indicated that the defendant signed a waiver form for the polygraph examination. The waiver is not in the record in this case. The defendant filed a motion in limine to exclude the statements he provided on March 16, 2006, to the state police and New Haven police. The defendant sought to exclude the statements on the ground that they were disclosed after jury selection began, not on any improper waiver grounds.

       On August 24, 2005, the defendant sought a sixty day continuance to review a disclosure by the state. On November 6, 2006, the defendant requested an additional month to track the codefendant’s case.

       The forensic examiner who conducted the original DNA testing tested twenty-two swabs from the crime scene. The swabs were submitted for testing on July 25, 2006, and a written report was finalized on September 21, 2006. The defendant had over two years between the date of submission of this report and the date of trial to request that the remaining twenty-one swabs be tested.

       The DNA report indicated that the defendant was included as a contributor to the DNA profile from swab #18, which the report states was a “mixture.” The report does not indicate what type of biological matter was in that mixture. The victim could not be eliminated as a minor contributor to the DNA sample from swab #18. Adeyemi was eliminated as a contributor to the DNA found on swab #18.

       Defense counsel claims that he would need to take a look at the backup work sheets underlying the report in order to make an informed decision whether to reopen the evidence. In the defendant’s motion for a new trial filed on October 22, 2008, the defendant states: “It was clear from the report [provided to counsel in court on October 14, 2008] that the defendant was included as a contributor to a mixture on the back garage door which was consistent with his videotaped statement. It was also clear [from the same report] that the codefendant Tyehimba Adeyemi was included in one area of the door leading between the office and garage and could not be eliminated from another area of that same door.” (Emphasis added.) At oral argument, when the defendant’s appellate counsel was asked whether the defendant’s trial counsel’s new-found clarity was a result of examining the backup work sheets, counsel replied that it was not. Therefore, the defendant concedes that he was not presented with any new evidence between October 14,2008, when, following his closing arguments, he was presented with the DNA report, and October 22, 2008, when the defendant filed his motion for a new trial. That concession demonstrates that the defendant had all the information necessary on October 14 when the court gave him the option to file a motion to reopen the evidence. The defendant’s defense was not impaired by the court’s denial of his motion for a continuance, because, roughly two weeks following the denial of the motion, when presented with the complete DNA report, the defendant opted not to reopen the evidence.

       The defendant does not appeal from the court’s denial of his motion to exclude the statements on the ground that it constituted a late disclosure, nor does he appeal from its refusal to exclude the statements made during the prepolygraph interview on constitutional grounds.

       The state claims that there was one report generated from the March 16, 2006 polygraph by state police, where a New Haven police detective, Martin Dadio, also was present. The state claims that the report generated by Dadio only documents that he was present but does not detail what the defendant said. The report does make reference to the fact that the interview and polygraph were videotaped. Defense counsel stated: “It’s [Dadio’s] report that as I was going through it and preparing my folders and when I was making a list of things that I was asking for from [the state] as I was preparing for the trial and . . . that’s when I asked for certain tapes and cassette tapes, and when I gave him that list of cassette tapes it was that Dadio report that I looked at and I said, well, there’s a videotape.” When the defendant inquired about the videotape from the state, the state was not aware of the contents of the videotape but then sought to review the videotape at some point in “the middle of September, roughly.” When the court inquired as to how long the state had been in possession of the videotape, the prosecutor could not recall on the spot when he received the videotape but stated that when the state did receive it, he advised the defendant. The court noted that prior to the audio being enhanced, the only people who knew what the defendant said at the polygraph were the police officers who attended it and the defendant himself.

       The defendant argues in his brief that he had no basis to believe, in advance of the polygraph examination, that there would be a general interview of the defendant on the merits of the case “beyond merely the protocols for the polygraph examination.” However, defense counsel told the court, “I’m not suggesting to the court . . . that we didn’t know what he was going to say at the time that he did speak to the polygraph. I would never let someone go up to have a polygraph exam without knowing what their . . . position was going to be.”

       Because we conclude that the court’s denial of the defendant’s motion for a continuance was neither arbitrary nor unreasonable, we need not engage in a harmless error analysis. See State v. Hamilton, supra, 228 Conn. 242.