source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NEIL BROWN
    (SC 16412)
    Sullivan, C. J., and Borden, Katz, Palmer and Zarella, Js.
    Argued April 24
    officially released July 17, 2001

      John B. Cantarella, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicky Melchiorre, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Neil Brown, appeals from the judgment of the Appellate Court affirming his conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). At trial, the defendant excepted to a portion of the trial court’s jury instructions, claiming that the court improperly had shifted to him the burden of proving that the victim consented to sexual intercourse. The trial court declined to reinstruct the jury.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly had: (1) admitted testimony of a nonexpert witness; (2) allowed the state to cross-examine the defendant’s character witness as to specific facts pertaining to a prior bad act of the defendant; and (3) instructed the jury regarding consent by shifting to him the burden of proving that the victim consented to sexual intercourse. State v. Brown, 59 Conn. App. 243, 244, 756 A.2d 860 (2000). The Appellate Court rejected the defendant’s claims and affirmed the trial court’s judgment. Id., 248, 250, 252.

The defendant filed a petition for certification to appeal to this court, seeking review of the following three issues: “(1) Whether the Appellate Court erred in holding that the jury instructions regarding consent, tak[en] in [their] entirety, were correct in law and sufficient to guide the jury even though the jury instructions placed the burden of proof on the defendant to prove consent and articulated a subjective test for consent as opposed to a reasonable person standard?

“(2) Whether the Appellate Court erred in holding that the trial court did not abuse its discretion by allowing observations by a nonexpert witness of the victim days after the alleged incident to be admissible to show lack of consent?

“(3) Whether the Appellate Court erred in holding that the trial court; did not abuse its discretion by allowing cross-examination of specific facts of prior act[s] of violence against women after the defendant introduced evidence of no reputation in the community of prior sexual misconduct?” (Internal quotation marks omitted.)

Thereafter, we granted the defendant’s petition for certification to appeal limited to the following issue: “Whether the Appellate Court properly concluded that the trial court was not required to instruct the jury that the state must prove that the defendant did not have a justified reasonable belief that the victim had consented [to sexual intercourse]?” State v. Brown, 254 Conn. 943, 761 A.2d 762 (2000).

While the defendant sought our review of the foregoing certified issue in his petition for certification to appeal to this court and raised the particular issue on appeal to the Appellate Court, the defendant failed to preserve the issue properly for review in the trial court. Therefore, after examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.


author: NORCOTT, J.

text:
    STATE OF CONNECTICUT v. DAVEY L. BERUBE, SR.
    (SC 16425)
    Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js.

      Argued March 22
    officially released July 17, 2001

      Pamala, J. Favreau, for the appellant (defendant).

      Bruce Lockwood, assistant state’s attorney, with whom, on the brief, were MarkS. Solak, state’s attorney, Vincent Dooley, senior assistant state’s attorney, and Robin S. Schwartz, former special deputy assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The defendant, Davey L. Berube, Sr., appeals from the judgment of conviction, following a jury trial, of charges stemming from two separate informations. In the first case, the defendant was convicted of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (l), and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21. In the second case, the defendant was convicted of assault in the third degree in violation of General Statutes § 53a-61 (a) (l), and risk of injury to a child in violation of § 53-21. On appeal, the defendant claims that the trial court improperly: (1) failed to sever the cases for trial; (2) permitted the state to impeach the defendant with evidence of his postarrest silence; (3) precluded the defendant from eliciting testimony related to the decision of the department of children and families (department) to place the defendant’s biological child in his custody; and (4) denied the defendant’s motion for a continuance and failed to recognize his right of allocution prior to imposing the sentences at the sentencing hearing. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. This appeal involves two cases that were tried together. The first case involves the defendant’s alleged sexual assault of his stepdaughter, Jane Doe, beginning in May or June, 1997. Jane, then thirteen years old, eventually complained to her mother, T.B., that the defendant was touching her in an inappropriate manner. Pursuant to Jane’s allegations, on September 7, 1997, T.B. brought her to state police Troop D barracks to file a complaint. Trooper Thomas Clark took written statements from both Jane and T.B., and, in accordance with procedure, notified the department. Thereafter, T.B. obtained a restraining order to remove the defendant from the family home. The department conducted its investigation simultaneously with the state police. Kathleen Payne, a department investigator, met with both Jane and the defendant. Despite Jane’s continued allegations, the defendant denied any wrongdoing and claimed that he accidently could have touched Jane’s breasts while wrestling with her. Payne concluded that allegations of sexual abuse had been substantiated and sent a letter to T.B. reiterating the need to protect her children. The department, thereafter, closed its file in November, 1997.

The second case involves the defendant’s alleged physical assault of his stepson, John Doe, on or about September 4, 1997. A few days after the incident, John, then eleven years old, complained of back pain to his grandmother. Upon lifting his shirt, John’s grandmother noticed bruises and notified John’s mother, T.B. After observing the bruises on John’s back, T.B. took him to state police Troop D barracks to file a complaint on September 7, 1997. Clark observed the bruises and had photographs taken to document John’s condition. Clark took written statements from both John and T.B., and, subsequently, notified the department of the incident. On behalf of the department, Payne met with both John and the defendant. The defendant informed Payne that he went to spank John on his buttocks, but that John moved causing the defendant to miss and strike John in the back. Payne concluded that the allegations of physical abuse had been substantiated and sent a letter to T.B. reiterating the need to protect her children. The department, thereafter, closed its file in November, 1997.

On December 2,1997, the defendant was arrested on two separate warrants related to these allegations. The state filed two substitute informations on May 19,1999, and the defendant, subsequently, was tried on both sets of charges before a single jury. On June 25, 1999, the jury returned a verdict of guilty on each count charged within the informations. On September 21, 1999, the court, Potter, J., imposed a total effective sentence of five years imprisonment, execution suspended after two years, and five years probation. This appeal followed.

I

The defendant’s first claim is that the trial court improperly failed to sever the two cases for trial. Specifically, the defendant claims that joinder of the two cases prejudiced him because: (1) the jury likely relied on evidence presented in one case to convict him in the other; (2) the totality of the accumulated evidence at trial “demonized” him; and (3) he was prevented from exercising his fifth amendment right not to testify because he wanted to testify in one case, but not in the other. Because the defendant failed to raise the severance issue at trial, we are not bound to review this claim on appeal. See State v. King, 235 Conn. 402, 405 n.3, 665 A.2d 897 (1995) (failure to raise issue of severance at trial renders claim unreviewable); State v. Groomes, 232 Conn. 455, 465, 656 A.2d 646 (1995) (same).

In declining to review this claim, “we reassert the fundamental principle that, if the defendant deems an action of the trial court necessary to the fairness of his trial, he has a responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily a defendant must raise in the trial court the issues that he intends to raise on appeal.” State v. Groomes, supra, 232 Conn. 466.

The defendant’s silence, when faced with the prospect of a joint trial, may have been for tactical or other valid reasons. See State v. Walton, 227 Conn. 32, 55 n.20, 630 A.2d 990 (1993). For example, a joint trial may have provided the defendant with the opportunity to demonstrate an attempt by his former wife, T.B., to turn both children against the defendant by manipulating them into believing that innocent acts were actually inappropriate. See, e.g., United States v. Romero, 54 F.3d 56, 59-60 (2d Cir. 1995), cert. denied, 517 U.S. 1149, 116 S. Ct. 1449, 134 L. Ed. 2d 568 (1996) (counsel did not pursue severance for tactical reasons); United States v. Jackson, 33 F.3d 866, 875-76 (7th Cir. 1994), cert. denied, 514 U.S. 1005, 115 S. Ct. 1316, 131 L. Ed. 2d 197 (1995) (court presumed that failure to seek severance was tactical decision); United States v. Cyprian, 23 F.3d 1189, 1194 (7th Cir.), cert. denied, 513 U.S. 879, 115 S. Ct. 211, 130 L. Ed. 2d 139 (1994) (counsel did not pursue severance for tactical reasons). Thus, to consider the defendant’s claim on appeal would be to “impose an untenable burden on the trial court and would amount to appeal by ambuscade.” State v. Groomes, supra, 232 Conn. 466. We decline to do so.

Having failed to raise the issue of severance at trial, and because the record contains no indication that such failure was not based on tactical reasons, the defendant waived any constitutional claims he may have had with respect to the joinder of the cases. See State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989) (“defendant cannot now claim ‘foul’ because of the admission of evidence which he allowed in for tactical purposes”); State v. Harman, 198 Conn. 124, 136, 502 A.2d 381 (1985) (“[hjaving expressly consented, for tactical reasons, to allow the state’s psychiatrist to reveal information he received during the examination, the defendant waived any constitutional claims he may have had with respect to this testimony and may not now challenge its admissibility on appeal”); State v. Moye, 177 Conn. 487, 499, 418 A.2d 870 (1979) (“defendant’s tactical use of [testimony] amounted to a waiver of any constitutional objection”); State v. Green, 62 Conn. App. 217, 231, 774 A.2d 157 (2001) (claim that constitutional right to confrontation was violated does not satisfy second prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989], because defendant made tactical decision not to cross-examine witness on particular issue); State v. Fisher, 52 Conn. App. 825, 830, 729 A.2d 229, cert. denied, 249 Conn. 912, 733 A.2d 232 (1999) (“defendant cannot now complain that he was deprived of his constitutional rights because his trial tactic failed”).

II

The defendant’s second claim is that the trial court violated his state and federal constitutional rights by improperly permitting the state to impeach him with evidence of his postarrest silence and request for an attorney. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Daugaard, 231 Conn. 195, 210-11, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). This contention concerns two inquiries by the state during its cross-examination of the defendant regarding his claimed cooperation with the state police and the department. The defendant failed to raise this issue at trial and now seeks to prevail on this unpreserved claim under State v. Golding, supra, 213 Conn. 239-40. We conclude that the record is insufficient for review with respect to the claim involving the police, and we reject the defendant’s argument with respect to the claim involving the department.

A

During the state’s cross-examination of the defendant, he volunteered that he had attempted to speak with the police, but that they had refused to take a statement from him without his attorney. Upon further inquiry, the defendant explained that he had informed his attorney of his offer to speak with the police and that his attorney had told him not to say anything unless he was present. The defendant also stated that he had presumed that his attorney would set up a meeting with the police, but that he never did. The defendant argues that the cross-examination violated his right to remain silent because the questioning revealed that he had chosen to remain silent after his arrest and receipt of Miranda warnings.

“Ordinarily, evidence of a defendant’s postarrest and postMiranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment. Doyle v. Ohio, [supra, 426 U.S. 610]. A Doyle violation also encompasses a prosecutor’s comment upon a defendant’s statement requesting an attorney. State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989). With respect to post-Miranda warning . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” (Internal quotation marks omitted.) State v. Daugaard, supra, 231 Conn. 210-11.

Contrary to the defendant’s argument, the record is not clear whether his conversations with the police transpired after or before his arrest or receipt of Miranda warnings. It is essential to know the timing of these conversations because the “use at trial of silence prior to the receipt of Miranda warnings does not violate due process. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982) . . . .” (Citations omitted; emphasis in original.) State v. Plourde, 208 Conn. 455, 466, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989). Because the record does not indicate whether Miranda warnings were given before the defendant’s conversations with the police took place, the record is inadequate for review under Golding.

The defendant, however, claims that his receipt of Miranda warnings may be inferred because he was in custody at the time he telephoned his attorney. His reliance on State v. Cook, 174 Conn. 73, 381 A.2d 563 (1977), for this proposition is misplaced. In Cook, this court held that it was not essential for the record to disclose at what point or whether Miranda warnings were given to a defendant when his postarrest silence is the subject of inquiry. Id., 76. We subsequently have modified that holding in State v. Leecan, 198 Conn. 517, 525, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). In State v. Leecan, supra, 524-25, we adopted the holding of the United States Supreme Court in Fletcher v. Weir, supra, 455 U.S. 607, that “the absence of any indication in the record that the silence of a defendant had been preceded by a Miranda warning rendered Doyle inapplicable, even though the inquiry of the prosecutor pertained to the time of arrest.” Thus, we will not infer that the defendant received Miranda warnings prior to his conversations with the police.

B

During his cross-examination by the state, the defendant testified that he was a battered spouse without a remedy or a means to protect the children. In response, the state asked the defendant about seeking the department’s assistance while it investigated the allegations against him. The defendant proceeded to testify that he did not trust the department because they were not objective. He further explained that, although he had told the department that he did not want to speak with anyone without his lawyer present, he actually did speak with Payne alone. The defendant now argues that the state’s inquiry was improper because his rights to remain silent and be represented by counsel with respect to the criminal investigation also were applicable to the department’s investigation.

“Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.” (Internal quotation marks omitted.) Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). “As such, silence following Miranda warnings is ‘insolubly ambiguous’ because it may constitute a reliance upon those rights rather than a tacit admission that the accused has an insufficient defense or explanation for his conduct.” State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985). Thus, “Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.” (Internal quotation marks omitted.) Wainwright v. Greenfield, supra, 291.

In the present case, however, there is no evidence that the defendant received Miranda warnings with respect to the departmental investigation. “The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” Id., 292. Here, it is not clear that the defendant received government assurances upon which to rely. “Because it is the Miranda warning itself that carries with it the promise of protection, the United States Supreme Court has concluded that the prosecution’s use of silence prior to the receipt of Miranda warnings does not violate due process. Fletcher v. Weir, [supra, 455 U.S. 603] (postarrest silence); Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) (prearrest silence).” State v. Esposito, 223 Conn. 299, 319, 613 A.2d 242 (1992). Once again, in the absence of any such evidence, there can be no Doyle violation. The defendant would have this court adopt a practice that would make any silence inadmissible in a criminal proceeding, a position far beyond that mandated by Doyle. See Doyle v. Ohio, supra, 426 U.S. 615 (holding that it is fundamentally unfair to promise arrested person that his silence will not be used against him and thereafter to breach that promise); see also Fletcher v. Weir, supra, 607 (use at trial of silence prior to receipt of Miranda warnings does not violate due process); Jenkins v. Anderson, supra, 240 (same); State v. Montgomery, 254 Conn. 694, 713, 759 A.2d 995 (2000) (same); State v. Plourde, supra, 208 Conn. 465-66 (same). We decline to do so. Accordingly, we conclude that the defendant’s rights were not violated.

Ill

The defendant’s third claim is that the trial court improperly: (1) precluded the defendant from inquiring about the department’s decision to place his biological child in his custody after the victims had made their allegations of abuse; and (2) refused to conduct an in camera review of his biological son’s department file. The state argues that the trial court properly determined that the department’s decision to place the defendant’s biological child in his custody was not relevant to the issue of whether the defendant had abused his stepchildren. The state further contends that the defendant did not make a showing sufficient to obtain an in camera inspection based on due process grounds. We agree with the state on both accounts.

A

At trial, the defendant sought to elicit testimony from a department social worker explaining that the department had placed the defendant’s biological child in his custody after the allegations by Jane Doe and John Doe had arisen. In doing so, the defendant attempted to demonstrate that the department has high standards with respect to the safety and welfare of children and that the department, therefore, would not have placed his biological child in the defendant’s custody if he were a danger to the child. The state objected to this line of questioning on the grounds of relevance. In sustaining the objection, the court explained that the jurors “know that this young child is with his father and they know the father is charged with risk of injury and other charges. They can draw their own inferences from the fact that the child is with the father. But, I don’t think we should talk about standards of proof as it would apply to a child who is not even the subject of [the allegations].”

“As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the exclusion of evidence. The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999); see also State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997); State v. Wright, 58 Conn. App. 136, 148, 752 A.2d 1147, cert. denied, 254 Conn. 907, 755 A.2d 884 (2000).

We find nothing in the record that persuades us to conclude that the trial court abused its discretion in determining that testimony related to the placement of his biological child with the defendant, after the allegations arose, was irrelevant to the issue of whether he abused his stepchildren. We, therefore, reject the defendant’s argument that the trial court improperly excluded the evidence.

B

The defendant next claims that he had a due process right under the fourteenth amendment to the United States constitution to an in camera inspection of a confidential department file in order to determine whether exculpatory information existed. Although we agree that due process requires that a defendant be entitled to an in camera review of confidential department files in some instances, we conclude that there is nothing in the record to indicate that the defendant in this case met the requisite threshold that would require a court to undertake such a review.

The defendant relies on Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), for his claim that he was entitled to an in camera review. In Ritchie, the defendant was charged with rape, involuntary deviate sexual intercourse, incest and corruption of a minor, resulting from allegations made by his thirteen year old daughter. Id., 43. The victim reported the incidents to the police, who in turn referred her to a state agency, children and youth services. Id. During pretrial discovery, the defendant served the agency with a subpoena to gain access to the victim’s confidential file. Id. The trial judge denied the request and the defendant was convicted on all counts. Id., 45. On appeal, the United States Supreme Court held that, under a due process analysis, the defendant was “entitled to have the [agency] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial.” (Emphasis added.) Id., 58.

The defendant also cites State v. Leduc, 40 Conn. App. 233, 670 A.2d 1309 (1996), for support. In Leduc, the defendant was charged with sexual assault of his daughter. Id., 235. At trial, the defendant requested an in camera inspection of confidential department files, which he believed to contain exculpatory evidence. The trial court denied the request and the defendant ultimately was convicted. Id., 240. The Appellate Court, citing Ritchie, concluded that the defendant had made a showing sufficient under due process standards to warrant an in camera inspection. Id., 248. The Appellate Court explained that “the defendant must at least make some plausible statement of how the information would be both material and favorable to his defense.” Id. Accordingly, the case was remanded for an in camera inspection of relevant files. Id., 250.

There is nothing in the record in the present case to indicate that the trial court improperly refused to conduct an in camera inspection. Unlike in Ritchie and Leduc, the department file that is the subject of the requested in camera inspection here does not involve “the same incident that forms the basis of [the defendant’s] criminal charges.” Id., 244. Rather, the defendant sought inspection of the department’s file on his biological child, even though the criminal allegations stem from acts involving the stepchildren. Having determined that the biological child’s file is irrelevant to the question of whether the defendant had abused his stepchildren, the court denied the claim. The defendant, “of course, may not require the trial court to search through the [department] file without first establishing a basis for his claim that it contains material evidence.” Pennsylvania v. Ritchie, supra, 480 U.S. 58 n.15. The defendant failed to make such a showing and, therefore, we reject his claim that he was entitled to an in camera inspection of his biological child’s confidential file.

IV

The defendant’s final claim alleges that the trial court: (1) incorrectly denied his motion for a continuance; and (2) failed to recognize his right of allocution prior to the imposition of his sentence. We conclude that the trial court did not abuse its discretion in denying the motion for a continuance and that the defendant’s right of allocution was not violated.

A

After the jury returned a guilty verdict, the court ordered a presentence investigation with alternate incarceration program assessment to be conducted by the office of adult probation. Both cases were, therefore, continued until August 27, 1999. On August 26, 1999, the defendant filed a motion for a continuance, which was granted until September 21, 1999. On September 20, 1999, the defendant filed another motion requesting a continuance for sentencing, which was denied. The defendant now claims that the court should have granted the continuance because the presentence investigation report referenced a psychiatric examination of him that had not been made available to him pursuant to Practice Book §§ 43-7 and 43-10 (1).

“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 [ejvery 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).

Contrary to the defendant’s arguments on appeal, neither the motion he filed, nor his arguments before the trial court regarding the motion indicated that the purpose of the continuance was to enable the defense to obtain a copy of the psychiatric report now in question. Rather, the defendant argued that he needed more time and that his due process rights were violated because the report was unfavorable toward him. In response to the defendant’s argument, the court noted that it sounded as if the defendant was attempting to retry the cases. The court explained: “I’m prepared to listen to argument regarding any claim[ed] deficiencies that appear in the presentence investigation. Whether those are factual or mistakes as a matter of law—but I’m not prepared to grant a continuance so that these argument[s] may be further developed.” The defendant failed to argue any deficiencies regarding the presentence investigation report during discussion of the continuance, and the court, therefore, denied the request. The court’s reasons for denying the continuance were not arbitrary, but rather reflect a sound decision to prevent the defendant from retrying issues underlying his guilt. Our examination of the record reveals nothing that would cause us to conclude that the trial court abused its discretion, particularly in light of “the reasons presented to the trial judge at the time the request [was] denied.” (Internal quotation marks omitted.) State v. Hamilton, supra, 228 Conn. 240.

B

The defendant’s final claim is that his case should be remanded for resentencing because the trial court failed to recognize his right of allocution prior to the imposition of his sentence. We disagree.

The rules of practice require that the judicial authority, before imposing a sentence, “allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.” Practice Book § 43-10 (3). Failure to provide the defendant with such an opportunity generally requires resentencing. See State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997).

In United States v. Margiotti, 85 F.3d 100 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit addressed the identical issue with which we are faced. In that case, the judge announced a sentence prior to giving the defendant an opportunity to speak as mandated by the Federal Rules of Criminal Procedure. Id., 101. The judge, having realized his lapse, offered the defendant the right of allocution. Id., 102. After the defendant spoke, the judge explained that he had considered the defendant’s statements, but chose to adhere to the previously announced sentence and explained his reasons for doing so. Id.

In a per curiam decision, the Court of Appeals explained that “ [b]y affording the defendant an opportunity to address the court and reconsidering the sentence just announced, the district judge cured his earlier mistake and complied fully with the requirements of [the rule].” Id., 103; see also United States v. Cruz, 172 F.3d 921 (D.C. Cir. 1998), United States Court of Appeals, Docket No. 97-3181 (D.C. Cir., July 31, 1998) (holding United States District Court sufficiently complied with rule 32 of the Federal Rules of Criminal Procedure when court gave consideration to defendant’s allocution prior to adjournment of sentencing proceeding and responded with reasons for adhering to previously announced sentence); United States v. Barnes, 948 F.2d 325, 331 n.5 (7th Cir. 1991) (“[A] trial judge, realizing after sentencing that the right of allocution has been neglected, may rectify the situation by, in effect, setting aside the sentence, reopening the proceeding, and inviting the defendant to speak. . . . [T]he trial court must genuinely reconsider the sentence in light of the elicited statement.” [Citations omitted.]). The Court of Appeals concluded: “To decide in these circumstances that a judgment ought to be vacated and the case be remanded for resentencing would be tantamount to ruling that a district judge cannot correct an inadvertent and harmless mistake made in the course of a sentencing hearing. There is no reason to adopt so inflexible a rule. . . . Where, as here, the technical violation of an applicable rule was promptly corrected and caused no harm, it cannot be said that there was a denial of justice.” United States v. Margiotti, supra, 85 F.3d 103.

At the sentencing hearing in the present case, the court imposed the defendant’s sentence following arguments by the state and the defendant’s counsel. After the court announced the sentence, the defense counsel notified the court that the defendant wished to exercise his right of allocution. The court granted the defendant’s request and permitted him to make a statement. The court, after having listened to the defendant’s remarks, declined to change the sentence. Specifically, the court explained: “I will note your comments. For the record, I would have recognized you earlier had your counsel brought it to my attention. . . . But nevertheless, I do feel that the sentence that the court has just imposed is appropriate under all of the circumstances. These two young kids have been traumatized, according to this report—and it’s genuine. Both are in tough shape. I’m not going to change the sentence.”

We conclude that the defendant’s right of allocution was not violated. The record clearly indicates that the court considered the defendant’s comments and demonstrated reasons for adhering to the originally imposed sentence. By affording the defendant the opportunity to speak and reconsidering the sentence with those remarks in mind, the “judge cured his earlier mistake and complied fully with the requirements of [the rule].” United States v. Margiotti, supra, 85 F.3d 103.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant appealed from the judgment of the tried court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person . . . .”

       General Statutes (Rev. to 1997) § 53-21 provides: “Ipjury or risk of injury to, or impairing morals of, children. Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       General Statutes § 53a-61 provides: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical ipjury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.
      “(b) Assault in the third degree is a class A misdemeanor and any person found guilty under subdivision (3) of subsection (a) of this section shall be sentenced to a term of imprisonment, of one year which may not be suspended or reduced.”

       In accordance with General Statutes § 54-86e, and in order to protect the victims’ legitimate privacy interests, the victims’ names are not used in this opinion. Bather, the defendant’s stepdaughter will be referred to as Jane Doe and the defendant’s stepson will be referred to as John Doe.

       There is evidence to support the contention that the defendant made a tactical decision to use the joint trials as a means to pursue this exact theory of defense. At trial, the defendant called several witnesses who portrayed T.B. as abusive or an alcoholic, and the defendant as nonviolent. The defendant further testified that he often had to protect himself and the children from T.B.’s physically abusive behavior.

       We are unpersuaded by the defendant’s attempt to bring this claim under the mantle of State v. Golding, supra, 213 Conn. 239-40. We note that there is no affirmative duty on the trial court, to order separate trials. State v. Haskins, 188 Conn. 432, 450, 450 A.2d 828 (1982). Even when raised, the derision to grant or deny severance is within the sound discretion of the trial court and will not be disturbed on appeal absent manifest abuse. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996). Thus, under the circumstances of the present case, where the defendant did not move for severance, we can see nothing constitutional about the defendant’s claim that the trial court improperly failed, sua sponte, to sever the cases for trial. See State v. Walton, supra, 227 Conn. 55 n.20. “Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 240.
      The defendant also claims that he should prevail under the plain error doctrine. “[PJlain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 77, 644 A.2d 887 (1994); State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). We conclude that in this case, the trial court did not commit plain error by failing to sever, sua sponte, the cases for trial. See State v. Groomes, supra, 232 Conn. 467.

       A review of the record actually suggests that the defendant’s conversations with police took place prior to his arrest and receipt of Miranda warnings. The assistant state’s attorney questioned the defendant as follows:
      “Q. Isn't it a fact, sir, that Trooper Clark attempted to contact you numerous times to have you come in?
      "A. I called him and I asked him if my attorney could be present.”

       We note that the court did not preclude the defendant from introducing proper character evidence. The defendant called several witnesses for this purpose, all of whom testified that the defendant had a reputation for being a nonviolent and caring father.

       General Statutes § 17a-28 provides in relevant part: “(b) . . . [R]ecords maintained by the department shall be confidential and shall not be disclosed. Such records of any person may only be disclosed ... as provided in this section. . . .

        "(1) Information disclosed from a person’s record shall not be disclosed further without written consent of the person, except if disclosed to a party or his counsel pursuant to an order of a court, in which a criminal prosecution or an abuse, neglect, commitment or termination proceeding against the party is pending. . . .”

       There is some debate as to whether the record was actually preserved on this issue. The state claims that the defendant never requested that the court conduct an in camera review of the department’s file, but instead, raises that issue for the first time on appeal. The state argues, therefore, that because no Golding review was requested, the claim should not be reviewed by this court. As the defendant notes, however, the trial transcript does indicate that the defendant explicitly raised Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), the seminal case involving due process violations as they relate to in camera inspections of confidential juvenile files. Accordingly, we find this reference sufficient to warrant review of the merits of this claim.

       In his appellate brief, the defendant claims that he was entitled to question the department social worker about, and have an in camera inspection of, the department records concerning his biological child as well as Jane Doe and John Doe. Our review of the record, however, reveals that the defendant did not inquire at trial about the department files of Jane Doe and John Doe. The entire discussion regarding access to records and relevant testimony was with regard to the defendant’s biological child. Thus, the claims involving Jane Doe and John Doe were not preserved and the defendant does not claim to prevail under Golding. Accordingly, we decline to review this issue as it pertains to the victims.

       In response to the defendant’s claim under Ritchie, the court explained that it is -“going to rule against you . . . because you did not establish a threshold ... to convince the court that these records, as they apply to [the biological child], are relevant to the issues here.”

       Practice Book § 43-7 provides: “The presentence investigation or alternate incarceration assessment report or both shall be provided to the judicial authority, and copies thereof shall be provided to the prosecuting authority and to the defendant or his or her counsel in sufficient time for them to prepare adequately for the sentencing hearing, and in any event, no less than twenty-four hours prior to the date of the sentencing. Upon request of the defendant, the sentencing hearing shall be continued for a reasonable time if the judicial authority finds that the defendant or his or her counsel did not receive the presentence investigation or alternate incarceration assessment report or both within such time.”

       Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to (he disposition, and to explain or controvert the presentence investigation report, the alternate incarceration assessment report or any other document relied upon by the judicial authority in imposing sentence. . . .”

       The motion filed with the trial court claimed that the presentence report had “grave deficiencies,” but neglected to explain adequately what those deficiencies entailed. During his argument before the court, the defendant explained: “I also have filed a motion for a continuance. In all honestfy], Your Honor, that’s basically part of habeas practice. . . . [W]here continuances should be filed if there’s any benefit to be gained by the defendant in developing more facts . . . .”

       During discussion of the motion for a continuance, the following colloquy took place:
      “The Court: [W]hy are you seeking a continuance, again?
      “[Defense Counsel]: Basically, there’s a number of other items. I’ve been on trial for two weeks—a period of half days. You know, it wasn’t complete days of trial but prior to this date I’ve been in another trial.
      “The Court: But this case was continued . . . from a date late in August . . . [t]o allow you to respond. ... It is now September 21st. . . . [W]hat is [it] that you feel you must develop and have not been able to develop?
      “[Defense Counsel]: Specifically, Your Honor, I believe adult probation did not view the totality of the evidence. And they did not consult with either the defendant or myself as to what we had to say on his comments as to his demeanor or anything else—and—I also believe that we have a right, under the due process clause of cases that were handed down by the [United States] Supreme Court, that the sentencing, a probation report has to reflect some due process component. And our contention is that the report appear[s]—is very one-sided.”

       Rule 32 (c) (3) of (ho Federal Rules of Criminal Procedure provides in relevant part: '‘Before imposing sentence, the court must . . . (C) address the defendant personally and determine whether the defendant wishes to malm a statement and to present any information in mitigation of the sentence . . . .”

       Our conclusion in this case that the defendant’s right of allocution was not violated should not be read to suggest that it is the defendant’s responsibility to notify the trial court, of such a request.


author: NORCOTT, J. ZARELLA, J.,

text:
    DIRECTOR, RETIREMENT AND BENEFITS SERVICES DIVISION, OFFICE OF THE COMPTROLLER v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (SC 16462)
    Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.
    Argued March 16
    officially released July 17, 2001

      Laurie Adler, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant (plaintiff).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Opinion

NORCOTT, J.

The issue before this court is whether the trial court properly determined that the disclosure of the home addresses of five state employees would not constitute an invasion of privacy and, therefore, that the information was not exempt from disclosure under General Statutes § 1-210 (b) (2) of the Freedom of Information Act (act). This appeal arose from a decision of the named defendant, the freedom of information commission (commission), ordering the plaintiff, the director of retirement and benefit services division, office of the comptroller, to disclose the home addresses of certain employees of the state department of banking (department), to the defendant, Eric Youngquist. The plaintiff appealed to the trial court pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-183 (a), and the act, General Statutes § 1-206 (d), formerly § 1-2li (d). The trial court affirmed the commission’s decision ordering the disclosure of the addresses. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. Youngquist had been the subject of an investigation conducted by the department that resulted in the revocation of his registration as an agent engaged in the sale of securities. In March, 1996, Youngquist submitted a request under the act that the plaintiff disclose the home addresses of thirty-eight employees of the department. Prior to this request, Youngquist had requested the disclosure of the home addresses of seventy-three employees of the department, including eighteen of the thirty-eight addresses regarding which Youngquist presently was seeking disclosure. The plaintiff denied Youngquist’s request, informing him that the home addresses he requested were identical to those previously requested by him in a pending Superior Court case; Youngquist v. Freedom of Information Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 950554601 (October 29, 1996) (18 Conn. L. Rptr. 2); and that a stay of the commission’s decision ordering disclosure had been granted pending Youngquist’s appeal in that case. The letter further stated that the request was denied on this ground. Youngquist appealed from the plaintiffs denial of his request to the commission.

Pursuant to General Statutes § 1-214 (b) and (c), the department distributed notices to the thirty-eight employees subject to Youngquist’s disclosure request, advising them that their home addresses had been requested and that they could file written objections to their disclosure. The notice informed the employees that in order to claim exemption of their addresses, they would have to demonstrate that they had taken significant efforts to keep their addresses private. Subsequently, the department received eleven objections to the disclosure of employees’ addresses. The Administrative and Residual Employees Union, which represented all thirty-eight employees, also objected. Three employees did not object to disclosure of their addresses and those addresses were provided to Youngquist by the plaintiff.

Because certain employees were contesting the disclosure request, hearings were conducted before a commission hearing officer. The plaintiff argued that the addresses of these employees were exempt from disclosure pursuant to § 1-210 (b) (2). Specifically, the plaintiff relied on West Hartford v. Freedom of Information Commission, 218 Conn. 256, 265, 588 A.2d 1368 (1991), which held that addresses of public employees who had taken significant steps to keep these addresses private could be found exempt from disclosure pursuant to § 1-210 (b) (2). At the hearing, it was established that five employees not only had objected to the disclosure of their addresses, but had taken significant steps to keep their addresses private. These efforts included the exclusion of each employee’s telephone number and address from telephone directories. Specifically, one employee testified that she refused all junk mail and responded to such mail by requesting that her name be removed from all mailing lists. Another employee used a post office box as his address, kept his name off mailing lists, and took other security measures as a result of his concern for his personal safety and that of his family. Two employees testified that they had substantial security concerns regarding their addresses based on previous incidents involving their families. Another employee testified that, because he was the lead investigator in the investigation that had resulted in Youngquist’s registration being revoked and subsequent arrest, he had some fear of retaliation.

The commission held that the requested home addresses were not exempt pursuant to § 1-210 (b) (2), and ordered the plaintiff to disclose the requested home addresses of the department employees, excluding those addresses that the plaintiff already had provided to Youngquist. The decision relied largely on the ruling of the court, McWeeny, J., in the appeal concerning Youngquist’s first request, which had ordered the release of the addresses in question and had concluded that employees do not have a privacy interest in their home addresses under § 1-210 (b) (2) even if they have taken steps to keep their addresses private. The commission also ordered the plaintiff to “ ‘strictly comply’ ” with the provisions of the act in the future.

The plaintiff appealed from the commission’s decision to the trial court. The trial court, Hartmere, J., dismissed the appeal, concluding that all of the addresses requested were required to be disclosed pursuant to the § 1-210 (b) (2). Applying the test set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175, 635 A.2d 783 (1993), the trial court held that state employees’ addresses are a matter of legitimate public concern because the public is “legitimately interested in ascertaining” the addresses, town, and street where state employees reside. The court also held that it would not be highly offensive to a reasonable person to disclose the addresses of the five employees who had taken significant steps to keep their addresses private. The court stated “ ‘as the majority of persons freely disclose their addresses, the disclosure of an address is not generally highly offensive to a reasonable person.’ ” The court reasoned that allowing an exemption for the five employees would be to rely on “ ‘their purely subjective desires’ ” for privacy.

This appeal followed. The issue before this court is whether the trial court properly determined that the disclosure of the addresses of the five state employees would not constitute an invasion of privacy and, therefore, that the information was not exempt from disclosure under § 1-210 (b) (2). We conclude that disclosure in this case would constitute an invasion of privacy and that the information was exempt from disclosure.

I

Before addressing this issue, we briefly set forth the applicable standard of judicial review. Ordinarily, “[o]ur resolution of this [appeal] is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; to the determinations made by an administrative agency. [W]e must decide, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992). . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 164-65.

A reviewing court, however, is not required to defer to an improper application of the law. Board of Education v. Freedom of Information Commission, 217 Conn. 153, 159, 585 A.2d 82 (1991); Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140, 509 A.2d 1050 (1986). It is the function of the courts to expound and apply governing principles of law. National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, supra, 140. We previously have recognized that “the construction and interpretation of a statute is a question of law for the courts, where the administrative decision is not entitled to special deference . . . .” (Internal quotation marks omitted.) State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 718, 546 A.2d 830 (1988); New Haven v. Freedom of Information Commission, supra, 205 Conn. 773-74; Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 599, 522 A.2d 771 (1987); Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). Questions of law “[invoke] a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” State Medical Society v. Board of Examiners in Podiatry, supra, 718; Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 5, 434 A.2d 293 (1980). Because this case forces us to examine a question of law, namely, the construction and interpretation of § 1-210 (b) (2) as well as the standard to be applied, our review is de novo.

II

With these legal principles in mind, we next examine the applicable statute in this case. Section 1-210 (a) provides in relevant part that “[e]xcept as otherwise provided by any federal law or state statute [including the exceptions to the act], all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. . . .” “[I]t must be noted initially that there is an overarching policy underlying the [act] favoring the disclosure of public records.” (Internal quotation marks omitted.) Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992). “[I]t is well established that the general rule under the [act] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the . . . legislation [comprising the act].” (Internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, supra, 221 Conn. 398. “The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 167. “This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.” New Haven v. Freedom of Information Commission, supra, 205 Conn. 776; see also Rocque v. Freedom of Information Commission, 255 Conn. 651, 660-61, 774 A.2d 957 (2001).

Section 1-210 (b) provides in relevant part that “[n]othing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) [personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . The person claiming exemption based upon § 1-210 (b) (2) “must meet a twofold burden of proof. First, the person claiming the exemption must establish that the files are personnel, medical or similar files.” Rocque v. Freedom of Information Commission, supra, 255 Conn. 661. In the present case, there is no dispute that Youngquist sought disclosure of personnel or similar files. “Second, the person claiming the exemption under § 1-210 (b) (2) must also prove that disclosure of the files would constitute an invasion of personal privacy.” Id.; Perkins v. Freedom of Information Commission, supra, 228 Conn. 169; Superintendent of Police v. Freedom of Information Commission, supra, 222 Conn. 626.

Our analysis of what constitutes an invasion of privacy is controlled by Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. In Perkins, we enunciated the standard for determining whether a disclosure constitutes an invasion of personal privacy under § 1-210 (b) (2). We held that “the invasion of personal privacy exception of [§ 1-210 (b) (2)] precludes disclosure . . . only when [1] the information sought by a request does not pertain to legitimate matters of public concern and [2] is highly offensive to a reasonable person.” Id.; see also Rocque v. Freedom of Information Commission, supra, 255 Conn. 661; Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 84-85, 698 A.2d 803 (1997). “Concededly, this standard is easier to state than to apply, but it has been accepted as the touchstone for subsequent cases addressing this element of § [1-210] (b) (2). See Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 43, 657 A.2d 630 (1995); Kureczka v. Freedom of Information Commission, [228 Conn. 271, 277, 636 A.2d 777 (1994)].” Dept. of Public Safety v. Freedom of Information Commission, supra, 84. “A partyseeking to invoke the exemption under § [1-210] (b) (2) must meet each of these burdens of proof independently. The Perkins standard ‘does not signal a return to the invocation of a balancing test, which we explicitly rejected in Chairman v. Freedom of Information Commission, [217 Conn. 193, 200-201, 585 A.2d 96 (1991)].’ Perkins v. Freedom of Information Commission, supra, 175.” Dept. of Public Safety v. Freedom of Information Commission, supra, 85.

Although the two-prong standard in Perkins establishes the test to be applied to determine whether an invasion of privacy under the act exists, the trial court decision in the present case and both party’s briefs spend considerable time debating whether the standard set forth under Perkins controls our analysis, or whether our decision in West Hartford v. Freedom of Information Commission, supra, 218 Conn. 264-65, which held that the addresses of public employees who had taken significant steps to keep these addresses private could be found exempt from disclosure pursuant to § 1-210 (b) (2), is the applicable rule of law in this case.

The plaintiff claims that he should prevail under either standard. The commission argues that the trial court properly concluded that the language in West Hartford discussing the significant efforts that a person may take to keep information private was dicta. In the alternative, the commission argues that our decision in Perkins overruled our holding in West Hartford.

We first clarify any confusion by reaffirming that we adhere to the two-prong standard set forth in Perkins when determining what constitutes an invasion of privacy. We note, however, that although the Perkins standard controls our determinations of cases involving privacy exemptions under the act, our decision in West Hartford addressing the “significant steps” a person may take to maintain privacy was not merely dicta. The trial court’s conclusion of law to the contrary, therefore, was improper. Our courts repeatedly have looked to the decision in West Hartford for guidance on how to address requests for disclosure of home addresses and other private information. See Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 725, 663 A.2d 349 (1995) (Borden, J., concurring and dissenting); Perkins v. Freedom of Information Commission, supra, 228 Conn. 174; Chairman, Board of Education v. Freedom of Information Commission, 60 Conn. App. 584, 591, 760 A.2d 534 (2000); O’Connell v. Freedom of Information Commission, 54 Conn. App. 373, 379 n.9, 735 A.2d 373 (1999). The analysis employed in West Hartford is relevant to the claim that significant efforts taken by a public employee to keep certain information private bears on the court’s determination of whether the information constitutes a legitimate matter of public concern and is highly offensive to a reasonable person. Under the present facts, we conclude that the plaintiff has satisfied his burden of demonstrating that such disclosure constitutes an invasion of privacy.

A

First, we address whether the material that is claimed to be exempt from disclosure is of legitimate public concern. Given the efforts that these employees took to keep their information private, the plaintiff argues that the information requested is not a legitimate matter of public concern because no public interest is served by exposing aspects of their private lives that do not impact the public. At oral argument before this court, the commission withdrew the request for the street addresses of the five employees, noting that neither Youngquist nor the commission had a legitimate public interest in this particular information. The commission, however, formally modified its position at oral argument to request disclosure of the town and state where each of these five employees reside. The commission argues that there is a legitimate public interest in knowing whether state employees are state residents. We agree with the plaintiff.

Although the “legislature has determined that disclosures relating to the employees of public agencies are presumptively legitimate matters of public concern [that] presumption is not . . . conclusive.” Dept. of Public Safety v. Freedom of Information Commission, supra, 242 Conn. 88, quoting Perkins v. Freedom of Information Commission, supra, 228 Conn. 174. We previously have held that where a public official’s private life does not concern or implicate his job as a public official, such information is not a legitimate matter of public concern. Rocque v. Freedom of Information Commission, supra, 255 Conn. 663-64; Dept. of Public Safety v. Freedom of Information Commission, supra, 87-90. In Dept. of Public Safety, we ordered disclosure of an investigatory report concerning on-duty conduct, but did not order another report disclosed because it “did not focus on the conduct of [an employee’s] official business . . . .” Dept. of Public Safety v. Freedom of Information Commission, supra, 89. The protected report concerned a citizen’s claim that a state trooper had engaged in an inappropriate relationship with the wife of the complainant. Id. In the present case, these five employees’ choice of residence, including the specific town and state in which they are located, are not legitimate matters of public concern because the information does not concern or implicate their jobs as public officials.

Further, in determining whether the information is a legitimate public concern, we have examined what steps an individual has taken to maintain certain information private, especially giving deference to information that is unrelated to a person’s public life. See West Hartford v. Freedom of Information Commission, supra, 218 Conn. 265 (ordering commission to hold new evidentiary hearing to allow municipal retirees whose addresses had been requested to present evidence of their “significant efforts” to keep addresses private). Most recently, in Rocque v. Freedom of Information Commission, supra, 255 Conn. 664-65, we held that the identity and home address of the complainant in a sexual harassment investigation at issue was exempt from disclosure under the act. In holding that the information requested was not a legitimate matter of public concern, we noted that the complainant consistently had requested the information be kept confidential, primarily for fear of retaliation or other security concerns. Id.

Also, in Chairman, Board of Education v. Freedom of Information Commission, supra, 60 Conn. App. 591, the Appellate Court ordered a remand to the commission to permit a public employee with a privacy claim “no less of an opportunity to prove that the disclosure of [the requested information] would constitute an invasion of her privacy.” In O’Connell v. Freedom of Information Commission, supra, 54 Conn. App. 379, the Appellate Court rejected the claim that the home addresses of members of volunteer fire departments were exempt from disclosure pursuant to § 1-210 (b) (2). The court reasoned that the addresses in dispute were not protected because “[n]othing in the record indicates that the plaintiffs have taken serious efforts to insulate their addresses from the public domain.” Id., 379 n.9.

The holdings in these cases recognize that public employees are properly subject to increased scrutiny regarding matters that affect their job performance as a result of the public nature of their employment. No public interest is served, however, by exposing aspects of their private lives that do not impact the public, particularly where the employee has taken significant steps to keep nonpublic information private.

In the present case, unlike the other employees, these five employees took significant steps to keep their addresses private. The various steps these employees took included: (1) excluding their telephone numbers and home addresses from telephone directories; (2) requesting that their names be removed from all mailing lists; (3) using a post office box as the address for all public correspondence; and (4) requesting that their names be removed from mailing lists when solicitations came via mail. Moreover, many of these employees sought to keep their addresses private for security reasons and concern of retaliation.

The trial court, therefore, in ruling that a state employee does not have a protected privacy interest in his residential address, improperly took an overly broad, categorical approach in its examination of all the addresses requested. The Perkins test requires that a determination be made regarding each request for information. Dept. of Public Safety v. Freedom of Information Commission, supra, 242 Conn. 87 (approved method of trial court, which held that disclosure of multiple investigatory reports “should be decided, not categorically, but on a case-by-case basis”).

The commission contends that the plaintiff cannot establish that the home addresses of the employees here do not pertain to a legitimate matter of public concern. The basis of this contention is that such addresses might be necessary to demonstrate that improper hiring practices are occurring, namely, that an undue number or proportion of employees live in a particular area, suggesting favoritism, or, to the contrary, that no employees come from a different area, suggesting a negative bias. The commission conceded at oral argument before this court, however, that there is nothing in the record to suggest such improper hiring practices. As the commission also conceded, moreover, employing such a test for the establishment of a lack of legitimate public concern would be analogous to the rational basis test for the constitutionality of a statute, namely, that the statute passes muster if the court can conceive of a rational basis for it. See, e.g., Ramos v. Vernon, 254 Conn. 799, 829, 761 A.2d 705 (2000). Thus, under this analogy, a matter is or would be of legitimate public concern if there is any rationally conceivable basis for it that would be of such concern. We disagree with this analogy and, therefore, with the contention that it supports.

First, we implicitly rejected it in Dept. of Public Safety v. Freedom of Information Commission, supra, 242 Conn. 79. In that case, we held that the report involving “the investigation of a citizen complaint that [a state] trooper was involved in an inappropriate relationship with the complainant’s wife”; id., 89; was not of legitimate public concern because it “did not focus on the conduct of the trooper’s official business . . . .” Id. Applying a rational basis to such a report, however, probably would have led to a different result, because it is rational to conceive that a state trooper’s private but inappropriate conduct with another man’s wife might serve as the basis of a claim that the trooper was prone to abusing his position.

Second, there is nothing in the language or purpose of the act to suggest such a test. The rational basis test is premised on the traditional deference of the judicial branch to the legislature in appropriate legal contexts. It may be viewed, therefore, as arising out of the separation of powers. There is no basis to transport that doctrine into the realm of judicial interpretation of the act.

B

In order to establish an exemption under § 1-210 (b) (2), however, the party claiming the exemption must also demonstrate that the disclosure of the documents in question would be “highly offensive to a reasonable person.” Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. The plaintiff argues that the trial court improperly applied the Perkins standard when it concluded that the plaintiffs concerns were purely subjective. The plaintiff, therefore, argues that it would be highly offensive to a reasonable person who had taken significant steps to protect this information to be required now to disclose such information. The commission argues that although disclosure in this case may be offensive to these five employees, it is not highly offensive to a reasonable person. The commission, therefore, argues that the trial court properly applied the Perkins test when it concluded that the department employees’ privacy concerns were purely subjective and that because “ ‘the majority of persons freely disclose their addresses, the disclosure of an address is not generally highly offensive to a reasonable person.’ ” We again agree with the plaintiff.

We recognize that requiring disclosure of the information requested in this case by employees who have made no effort to protect it would not be highly offensive to a reasonable person. The standard that is applied, however, is different for employees who took significant and repeated steps to maintain the privacy of their addresses. In this case, the standard under Perkins is whether it is highly offensive to require disclosure of the addresses of employees who take significant measures to protect private information from being disclosed. This test does not rely on the five employees’ subjective desires for privacy as enunciated by the trial court, but, rather, more precisely, establishes a test that makes an objective assessment of the public availability of the information based on the employee’s specific efforts to maintain privacy. See West Hartford v. Freedom of Information Commission, supra, 218 Conn. 264-65 (court will take into account those “persons who, through significant efforts, have made a conscious attempt to insulate their addresses from the public domain”); O’Connell v. Freedom of Information Commission, supra, 54 Conn. App. 379; see generally Perkins v. Freedom of Information Commission, supra, 228 Conn. 174-75.

Here, the employees obtained unlisted telephone numbers, removed their names from mailing lists and used post office boxes. These measures were taken largely in response to security concerns regarding the release of their addresses. We cannot conclude that a reasonably objective person, after taking such protective measures, would consider disclosure at this juncture a “minor” or a “moderate” annoyance. Perkins v. Freedom of Information Commission, supra, 228 Conn. 173, quoting comment (c) of § 652D of the Restatement (Second) of Torts (“minor and moderate annoyance ... is not sufficient to give [a plaintiff] a cause of action under the rule stated in this Section” [internal quotation marks omitted]). Under these circumstances, we conclude that it is highly offensive to a reasonably objective person to disclose this information after taking significant steps to keep it private.

We conclude, therefore, that the plaintiff has satisfied his burden under § 1-210 (b) (2) and the twofold test under Perkins, that the information in the record is not a legitimate public interest and that the disclosure of the information would be highly offensive to a reasonable person. Consequently, the addresses, and information on the town and state where each of these five state employees resides are exempt from public disclosure under § 1-210 (b) (2).

The judgment is reversed and the case is remanded to the trial court with direction to sustain the plaintiffs appeal.

In this opinion BORDEN, PALMER and VERTEFEU-ILLE, Js., concurred.

ZARELLA, J.,

concurring. I concur in the result reached by the majority. Nevertheless, I write separately to express my view that this case demonstrates the need to revisit and reconsider the standard for determining when an invasion of privacy occurs for puiposes of General Statutes § 1-210 (b) (2). The existing standard is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993), in which this court stated that “the invasion of personal privacy exception of [General Statutes (Rev. to 1993)] § 1-19 (b) (2) [now codified at General Statutes § 1-213 (b) (2)] precludes disclosure . . . only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.” Id., 175. Thus, under Perkins, we adopted an objective tort standard in defining invasion of privacy. The second prong of this standard is not concerned with whether the individual official or employee is highly offended by the disclosure, but, rather, whether a reasonable person in similar circumstances would be highly offended.

In West Hartford v. Freedom of Information Commission, 218 Conn. 256, 588 A.2d 1368 (1991), this court opined that the home addresses of retired town employees were proper subjects for disclosure under the Freedom of Information Act unless the town employees “through significant [effort], ha[d] made a conscious attempt to insulate their addresses from the public domain.” Id., 264. The court in West Hartford considered “a person’s reasonable expectation of privacy and the potential for embarrassment as significant factors in determining if disclosure [of public records] would constitute an invasion of privacy.” (Internal quotation marks omitted.) Id., 263. Thus, in determining whether the disclosure would amount to an invasion of privacy under § 1-19 (b) (2), the court applied a hybrid (subjective and objective) standard that considers: (1) whether the employee subjectively has demonstrated an expectation of privacy; and (2) whether that expectation of privacy is objectively reasonable. This is in contrast to the purely objective standard of whether a reasonable person would be highly offended by the disclosure as set forth in Perkins.

In the present case, the majority states that “[t]he analysis employed in West Hartford is relevant to the claim that significant efforts taken by a public employee to keep certain information private bears on the court’s determination of whether the information constitutes a legitimate matter of public concern and is highly offensive to a reasonable person.” In an effort to reconcile the hybrid standard employed in West Hartford with the objective standard of Perkins, the majority states: “We recognize that requiring disclosure of the information requested in this case by employees who have made no effort to protect it would not be highly offensive to a reasonable person. The standard that is applied, however, is different for employees who took significant and repeated steps to maintain the privacy of their addresses. In this case, the standard under Perkins is whether it is highly offensive to require disclosure of the addresses of employees who take significant measures to protect private information from being disclosed. This test does not rely on the five employees’ subjective desires for privacy as enunciated by the trial court, but, rather, more precisely, establishes a test that makes an objective assessment of the public availability of the information based on the employee’s specific efforts to maintain privacy.”

There was no evidence in the record, however, to suggest that the five employees who had taken such steps did so because of any different objective concerns for security than those of the employees who had not taken steps. Rather than consider whether a reasonable person would have found the disclosure of the information highly offensive, the majority relies on the subjective concerns of the employees who took steps to keep the information private.

The majority correctly notes that none of the parties has asked this court to reconsider the precedent established in Perkins. Thus, this court is under no obligation to do so. Rather than wait for “another day” as the majority suggests, however; footnote 13 of the majority opinion; I would have requested briefs and argument on whether Perkins should be overruled and, if so, what standard should apply. Failing that course, however, I join in the court’s implied invitation to reconsider Perkins in a future case.

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . .

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § 1-206 (d), formerly § 1-211 (d), provides: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. Notwithstanding the provisions of section 4-183, in any such appeal of a decision of the commission, the court may conduct an in camera review of the original or a certified copy of the records which are at issue in the appeal but were not included in the record of the commission’s proceedings, admit the records into evidence and order the records to be sealed or inspected on such terms as the court deems fair and appropriate, during the appeal. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (c) of section 4-183 and section 52-64, all process shall be served upon said commission at its office. Any appeal taken pursuant to this section shall be privileged in respect to its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1,1958. If the court finds that any appeal taken pursuant to this section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party iiqured by such frivolous or dilatory appeal costs or attorney’s fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court.”

       Youngquist subsequently was arrested on charges relating to that investigation.

       The trial court noted the factual and procedural background surrounding Youngquist’s first request as follows: “On August 2, 1994, Youngquist made a freedom of information request to the [department] seeking the names and home addresses of all present employees of the department as well as former employees of the department employed between December 1, 1991 and August 4,1994. That request was denied by the department and Youngquist thereafter filed an appeal to the [commission]. In a final decision issued August 23, 1995, the [commission] ordered disclosure of the names of one hundred employees who had not objected to such disclosure, but denied access to the other seventy-three employees who had either objected to such disclosure or had taken significant steps to protect their addresses from the public domain. Youngquist then filed an appeal to the Superior Court.”

       General Statutes § 1-214, formerly § l-20a, provides in relevant part: “(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned ....
      “(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned . . .

       It should be noted that these prior incidents did not involve Youngquist.

       The trial court, McWeeny, J., had sustained Youngquist’s appeal regarding his first request, and remanded the case to the commission for further proceedings, directing the commission to order the department to release the names and addresses of the seventy-three persons previously exempted from its order. See Youngquist v. Freedom of Information Commission, supra, 18 Conn. L. Rptr. 2. The court subsequently reaffirmed its decision. See Youngquist v. Freedom of Information Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 950554601 (February 18, 1997) (19 Conn. L. Rptr. 23). Thereafter, the commission issued an order of disclosure consistent with the court’s memorandum of decision.

       Initially, the commission moved to dismiss the appeal, claiming that because the information requested in this case already had been disclosed by the commission based on Youngquist’s successful appeal before Judge McWeeny, tills appeal was moot. The plaintiff argued that, because the commission’s current order mandating disclosure was prospective in nature, the appeal was not moot. The motion to dismiss subsequently was withdrawn by the commission. We conclude that, although the addresses of the employees sought in this case already have been disclosed, the appeal is not moot. We previously have held that where orders issued by the commission are prospective in nature, an appeal of a commission order is not moot. Gifford v. Freedom of Information Commission, 227 Conn. 641, 648-49, 631 A.2d 252 (1993); see also Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 384, 746 A.2d 1264 (2000). In the present case, the commission order stated: “Henceforth [the director] shall strictly comply with the provisions of [General Statutes §§ 1-212 (a) and 1-210 (a)] . . . .” Thus, because the order was prospective in nature, the appeal by the plaintiff is not moot.

       General Statutes § 1-212, formerly § 1-15, provides in relevant part: “(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .”

       In Perkins v. Freedom of Information Commission, supra, 228 Conn. 174-75, this court adopted, as the appropriate test for invasion of personal privacy under § 1-210 (b) (2), the definition of a tort action for invasion of personal privacy as delineated in § 652D of the Restatement (Second) of Torts (1977).

       At oral argument before this court, the commission posited that the public could have a legitimate public interest in determining whether unfair hiring practices exist. The commission argued that revealing whether all or none of the employees reside in one town could help prove this and, therefore, a legitimate public interest exists for disclosure.

       We acknowledge that we have not applied Perkins strictly in accordance with the “reasonable person” standard that we adopted in that case. Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. Rather, we have applied a standard that includes both a subjective and an objective component. We were not asked to revisit Perkins in the present case. Thus, we have applied Perkins to the facts of this case as we deemed most appropriate. A review of Perkins and its progeny in a suitable case awaits another day.