text:
    STATE OF CONNECTICUT v. ANDRE RHODES
    (SC 15677)
    Callahan, C. J., and Berdon, Norcott, Katz and Palmer, Js.
    Argued October 28, 1998
    officially released March 16, 1999

      William S. Palmieri, for the appellant (defendant).

      Carolyn K. Longstreth, senior assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

The sole issue raised by this appeal is whether the defendant, Andre Rhodes, is entitled to a new trial because a member of the jury that convicted him of murder and felony murder had engaged in improper conversations about the case with a friend during the trial. We answer the question in the negative and, consequently, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 29, 1995, the defendant and an unidentified male companion went to Kenneth Vitale’s apartment to purchase one-quarter pound of marijuana from Vitale’s friend, Michael Day, the victim. Vitale’s girlfriend, Megan Schwatlow, and Carolyn Huhn were present at the apartment. When the victim arrived with the marijuana, Vitale, the victim, the defendant and the unidentified male convened in the bedroom to weigh the drugs. Thereafter, it was determined that the marijuana weighed five grams less than expected. The victim then attempted to place a telephone call to the person from whom he had obtained the marijuana. While the victim was on the telephone, Vitale departed from the bedroom and, as he was proceeding toward the living room, he heard the sound of a gunshot. Seconds later, the unidentified male left the bedroom and proceeded into the living room carrying a brown paper bag containing the marijuana. The defendant followed immediately thereafter, brandishing a pistol and pointing it in the direction of Vitale, Schwatlow and Huhn. The defendant and the unidentified male fled the apartment. Vitale then went into the bedroom and observed the victim lying on the bed, semiconscious, with the telephone receiver in his hand. According to the medical examiner, the victim had been shot twice in the chest from a distance of less than two feet. The victim died from injuries sustained as a result of the gunshot wounds.

Vitale reported the incident to the police and provided them with the defendant’s name and address. The police located the defendant two days later at the apartment of a friend, Leon Telford. The police conducted a search of Telford’s home and found a red, nylon zippered bag, containing a semiautomatic pistol, two bags of marijuana and a bag of hashish. Ballistics testing definitively matched the pistol to two spent bullets that had been found near the victim’s body and the defendant’s fingerprint was found on two of the bags containing the drugs. In addition, Vitale and Schwatlow made positive out-of-court and in-court identifications of the defendant. Both Vitale and Schwatlow described the defendant’s pistol to the police and later identified it at trial. Huhn also made a positive in-court identification of the defendant.

After six days of deliberations, the jury found the defendant guilty of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, and felony murder in violation of General Statutes § 53a-54c. The defendant filed timely motions for a judgment of acquittal and for a new trial. Thereafter, the defendant, upon learning that a juror had discussed the case with a third party during the trial, filed an amended motion for a new trial on the ground of juror misconduct.

The trial court conducted an evidentiary hearing on the defendant’s claim of juror misconduct. The evidence adduced at that hearing revealed that, during the pendency of the trial, one juror, Amy Setkoski, had had several telephone conversations in which she discussed the case with her boyfriend, Anthony Macaluso. Each of these conversations was tape-recorded as Macaluso was incarcerated at the time they occurred. At the hearing, the defendant introduced into evidence seven tape-recorded conversations between Setkoski and Macaluso.* * The relevant portion of each of those conversations is summarized as follows.

The first conversation between Setkoski and Maca-luso regarding the trial took place on the evening of the first day of the trial, October 23, 1996. Setkoski told Macaluso that she had been selected as a juror for the defendant’s trial. Macaluso expressed frustration about not being able to discuss the case with Setkoski during the trial, stating that “our phone conversations [are] recorded and if they heard you talking about the details then . . . you would get in trouble.” Macaluso also expressed his feelings about the criminal justice system, which he characterized as a sham that operates on the presumption that criminal defendants are “guilty until . . . proven innocent.”

During two conversations with Macaluso on October 26, 1996, Setkoski expressed concern about not getting paid while serving as a juror. Macaluso replied: “I’ll bet you the judge’s check doesn’t wait a month.”

On October 27, 1996, Macaluso told Setkoski that it was possible that the state and the defendant would reach aplea agreement before the jury began its deliberations on the case. Setkoski was surprised to learn that the parties could enter into a plea bargain after the trial had commenced.

In a conversation on the evening of October 31,1996, Setkoski told Macaluso that jury deliberations had begun that day. Setkoski also stated that the other jurors disagreed with her view of the case. Macaluso told Setkoski that “it sounds like a hung jury to me because I know you, you’re definitely not going to give in.” Macaluso also suggested that Setkoski rent and view a movie entitled “Jury Duty,” a comedy about a holdout juror in a case that ends in a hung jury.

On November 5, 1996, as jury deliberations continued, Setkoski told Macaluso that she still disagreed with the other jurors, prompting Macaluso to comment on Setkoski’s stubbornness. He then advised Setkoski not to hold fast to her position out of spite or simply to prove that she could not be swayed. He stated: “You know, just try to be open minded. That’s all I can tell you about it.” Setkoski then suggested that the other jurors were being mean to her, to which Macaluso responded: “Good thing I’m not there. I’d just put them in their place.”

The final conversation between Setkoski and Macaluso regarding the trial occurred on the evening of November 6, 1996, after the jury had concluded its fourth day of deliberations. Macaluso indicated to Setkoski that, even though the defendant had shot the victim twice, the defendant nevertheless might not have intended to kill the victim because the defendant could have fired the two shots “out of . . . sheer fright or shock, anything . . . .” Setkoski responded: “That’s what I thought.”*

The foreperson of the jury, Josephine Gaida, testified at the hearing. Gaida indicated that Setkoski’s position during deliberations had been favorable to the defendant until November 8,1996, when she joined the other jurors in voting to convict the defendant of murder and felony murder. Gaida further testified that, to her knowledge, Setkoski had not introduced any outside information into the jury room.

At the conclusion of the hearing, the defendant claimed that a presumption of prejudice arises from improper juror contact and that the state had failed to rebut that presumption in this case. The state, on the other hand, claimed that where, as here, the trial court is in no way responsible for the impropriety, the burden rests with the defendant to prove that actual prejudice resulted from the juror misconduct. The state further maintained that the evidence adduced at the hearing failed to establish that the defendant had been prejudiced in any way by Setkoski’s improper conversations with Macaluso.

The trial court denied the defendant’s motion for a new trial. In a thorough memorandum of decision, the trial court concluded that, irrespective of which patty bore the burden of proof on the issue of prejudice, and by whatever standard of proof, the defendant could not prevail on his claim. In so concluding, the court stated as follows: “The court need not decide whether the position of the state or that of the defendant is the correct one since the court finds that, not only has there been no showing of prejudice by the defendant, but any presumption of prejudice has been rebutted [by the state] beyond a reasonable doubt. Therefore, regardless of where the burden of proof is placed, or the standard of proof to be utilized, the defendant is not entitled to a new trial on the basis of juror misconduct.” The trial court based its conclusion on the fact that Macaluso’s communications with Setkoski “were, if anything, favorable to the defendant” and resulted in Setkoski holding out for an acquittal longer than she otherwise might have. The trial court also observed that Setkoski had voted to convict the defendant only after the court had reinstructed the jury on intent on November 6 and again on November 7.

On appeal, the defendant’s sole contention is that he is entitled to a new trial in light of Setkoski’s improper conversations with Macaluso concerning the case. We reject the defendant’s claim.

“Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court.” (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 330, 715 A.2d 1 (1998); accord State v. Brown, 235 Conn. 502, 522, 668 A.2d 1288 (1995). “It has long been the law of this state that jurors shall not converse with any person [who is] not a member of the jmy, regarding the cause under consideration . . . .” Aillon v. State, 168 Conn. 541, 545, 363 A.2d 49 (1975); accord State v. McPhail, 213 Conn. 161, 173, 567 A.2d 812 (1989); State v. McCall, 187 Conn. 73, 81, 444 A.2d 896 (1982). “[These] rules are of vital importance to assure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment.” Aillon v. State, 173 Conn. 334, 337, 377 A.2d 1087 (1977).

“It is well established, however, that not every incident of juror misconduct requires a new trial.” State v. Newsome, 238 Conn. 588, 627, 682 A.2d 972 (1996). “[D]ue process seeks to assure a defendant a fair trial, not a perfect one. . . . [T]he constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” (Internal quotation marks omitted.) State v. Tomasko, 242 Conn. 505, 513, 700 A.2d 28 (1997). “The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . The defendant has been prejudiced if the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror. . . . We have previously held that, in cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error. . . . Where, however, the trial court was in no way responsible for the juror misconduct ... we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Newsome, supra, 628.

Finally, “[a]ppellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . [W]e have . . . accordingly confined our role to a determination of whether there has been an abuse of discretion. . . . Claims of juror misconduct fall within this rule of limited review. ” (Citation omitted; internal quotation marks omitted.) State v. Small, 242 Conn. 93, 113, 700 A.2d 617 (1997); see also State v. Brown, supra, 235 Conn. 523-24.

The defendant contends, as a preliminary matter, that we should reconsider our precedent that places the burden on the defendant to show that he or she was actually prejudiced by the juror misconduct when the trial court is in no way responsible for the impropriety. E.g., State v. Tomasko, supra, 242 Conn. 512-13; State v. Small, supra, 242 Conn. 113; State v. Newsome, supra, 238 Conn. 628; Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987). Specifically, the defendant claims that requiring him to prove prejudice is inconsistent with the dictates of the due process clause of the fourteenth amendment to the United States constitution, which, the defendant asserts, requires the state to establish the harmlessness of any juror misconduct beyond a reasonable doubt. In support of his claim, the defendant relies primarily on Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954), in which the United States Supreme Court observed: “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.” Id., 229; see also State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989) (“[w]here an accused makes a plausible claim that his constitutional right to a fair trial may be violated because the jury is not impartial, the burden is upon the state to rebut the presumption of prejudice that denies a fair trial”). The state, on the other hand, claims that, more recently, the United States Supreme Court has indicated that Remmer stands only for the proposition that a defendant is entitled to a hearing at which the defendant bears the burden of proving actual prejudice. See Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) (“[t]his Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias” [emphasis added]).

In this case, we see no reason to revisit our prior case law regarding the burden or standard of proof in juror misconduct cases because the defendant cannot prevail, even under the rule he urges us to adopt. Even if it is assumed, arguendo, that the state bears the burden of proving the harmlessness of Setkoski’s improper contact with Macaluso beyond a reasonable doubt, the evidence supports the trial court’s finding that the state satisfied that burden.

The trial court reasonably concluded that Macaluso’s conversations with Setkoski regarding the trial were not prejudicial to the defendant. Indeed, as the trial court expressly found, the improper conversations, if anything, were favorable to the defendant. For exam-pie, Macaluso’s comment that, in his view, the justice system considers a person “guilty until . . . proven innocent,” and his statement that the defendant did not necessarily intend to kill the victim simply because the defendant had fired two shots at the victim, provided Setkoski with reasons to view the state’s case with suspicion. Macaluso’s other trial-related comments to Setkoski also could not reasonably be construed as harmful or otherwise unfavorable to the defendant.

As the trial court further noted, “this is not a case where a piece of evidence or fact which was not admitted at trial was learned by or communicated to a juror or jurors,” a circumstance that may give rise to a heightened risk of prejudice to the defendant. See, e.g., United States v. Cheyenne, 855 F.2d 566, 567-68 (8th Cir. 1988). Moreover, the court properly found, on the basis of the jury foreperson’s uncontroverted testimony, that there was no indication that Setkoski had shared Macaluso’s comments with any other member of the jury.

The trial court also reasonably determined that there was no connection between the improper conversations and Setkoski’s eventual vote to convict the defendant of murder and felony murder. On the contrary, the evidence established, and the court found, that Setkoski had held out for an acquittal during the course of her conversations with Macaluso. In fact, it was not until two days after Setkoski’s last conversation about the case with Macaluso that she joined the other jurors in voting for conviction. It is noteworthy, moreover, that on each of the last two full days of jury deliberations, the trial court reinstructed the jury on the element of intent, an issue that Setkoski testified had caused her to question the sufficiency of the state’s case. See footnote 11 of this opinion. It therefore was reasonable for the trial court to conclude that Setkoski had reconsidered her position during the final two full days of jury deliberations not because of anything Macaluso had said to her about the case, but, rather, in light of the court’s supplemental instructions on intent.

Thus, we are satisfied that the trial court did not abuse its discretion in concluding that the defendant had suffered no prejudice as a result of Setkoski’s improper contact with Macaluso and that the state had rebutted any presumption of prejudice arising from such contact beyond a reasonable doubt. Accordingly, we reject the defendant’s claim that he is entitled to a new trial on the ground of juror misconduct.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant appealed from the judgment of the trial court directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       The defendant also was charged with two counts of carrying a pistol without a permit in violation of General Statutes § 29-35. The jury, however, was unable to reach a verdict on those two counts and, consequently, the trial court declared a mistrial as to those counts.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. . . .”

       General Statutes § 53a-54c provides in relevant part: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       At the hearing, both parties were given a full and fair opportunity to present evidence relevant to the defendant’s claim of juror misconduct. The defendant makes no claim of impropriety regarding the manner in which the trial court conducted the hearing.

       Regulations of the department of correction permit the monitoring and recording of nonprivileged inmate telephone conversations upon notice to the inmate. Regs., Conn. State Agencies §§ 18-81-29 and 18-81-44; see Washington v. Meachum, 238 Conn. 692, 694-99, 680 A.2d 262 (1996).

       Setkoski and Macaluso had four other telephone conversations during the trial that were recorded. Only the seven conversations relevant to the defendant’s claim, however, were introduced into evidence.

       In addition, Setkoski and Macaluso testified at the hearing regarding their conversations about the trial. Although they both recalled having fewer discussions about the case than the tapes establish, their testimony otherwise was generally consistent with the conversations contained on the tapes.

       At the trial, the state had maintained that the fact that the victim had been shot twice supported its claim that the shooting was intentional.

       At the hearing, Setkoski acknowledged that she had asked Macaluso about the meaning of intent. She also indicated that her concerns regarding the sufficiency of the state’s evidence on intent had caused her to hold out for an acquittal for several days.

       The Connecticut constitution, article first, § 8, as amended by article seventeen of the amendments, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. . .

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       The defendant makes no claim under the state constitution.

       There is a split of authority among the United States Circuit Courts of Appeals as to whether a presumption of prejudice arises when a juror has improper communications about the case wi1 h a 1 hird party. Compare United States v. Console, 13 F.3d 641, 665-66 (3d Cir. 1993), cert. denied sub nom. Curcio v. United States, 511 U.S. 1076, 114 S. Ct. 1660, 128 L. Ed. 2d 377 (1994), and cert. denied sub nom. Markoff v. United States, 513 U.S. 812, 115 S. Ct. 64, 130 L. Ed. 2d 21 (1994) (presumption of prejudice arises when juror has direct communication with third party during deliberations) and United States v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988) (“[a] presumption of prejudice arises when a juror is exposed to extra-record evidence and the government is required to rebut that presumption”) with United States v. Pennell., 737 F.2d 521, 532 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 105 S. Ct. 906, 83 L. Ed. 2d 921 (1985) (“[T]he burden of proof [in cases involving unauthorized juror contact] rests upon a defendant to demonstrate that unauthorized communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed.”). We note, moreover, that the United States Supreme Court recently has indicated that the critical consideration in resolving a claim of improper juror contact is not whether prejudice may be assumed from such contact, but, rather, whether, under the specific facts of the case, any such impropriety actually affected the verdict. United States v. Olano, 507 U.S. 725, 739, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (“There may be cases where [a jury] intrusion should be presumed prejudicial . . . but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations, and thereby its verdict?” [Citation omitted.]). Subsequent to the court’s decision in Olano, several federal Circuit Courts of Appeals have refused to presume prejudice from an improper juror contact, opting instead for an approach under which the burden of establishing harmlessness rests with the government only if the trial court first determines that, under all of the circumstances, prejudice to the defendant is reasonably likely. E.g., United States v. Sylvester, 143 F.3d 923, 933-34 (5th Cir. 1998) (trial court must determine whether likelihood of prejudice arising from improper juror communication justifies assigning government burden of establishing harmlessness); United States v. Williams-Davis, 90 F.3d 490, 497 (D.C. Cir. 1996), cert. denied, 519 U.S. 1128, 117 S. Ct. 986, 136 L. Ed. 2d 867 (1997) (same).

       We note that Macaluso initially testified that in one of the conversations he had had with Setkoski during the trial, he told her to “screw that black piece of shit,” referring to the defendant. Macaluso recanted this testimony when he learned that all of his conversations with Setkoski during the trial had been tape-recorded. According to Macaluso, he had agreed to testify falsely about having made the racially disparaging comment to Setkoski at the urging of the defendant while the two men were being transported together from jail to court for the hearing on the defendant’s motion for a new trial. Macaluso further testified that the defendant had told him that “the best way to get a mistrial was to say that it was something racial involved.” Consistent with Macaluso’s recantation, the trial court expressly found that Macaluso had never made the derogatory comment about the defendant to Setkoski.


source: Caselaw Access Project

author: PETERS, J. BERDON, J.,

license: Public Domain

text:
    REYNALDO RAMOS v. COMMISSIONER OF CORRECTION
    (SC 15840)
    Callahan, C. X, and Borden, Berdon, Palmer and Peters, Js.
    Argued January 14
    officially released March 16, 1999

      G. Douglas Nash, public defender, with whom, on the brief, was Donald D. Dakers, for the appellant (petitioner).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Richard F. Jacobson, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PETERS, J.

A petitioner seeking appellate review, under General Statutes § 52-470 (b), of a ruling on his or her petition for a writ of habeas corpus ordinarily must obtain certification from the habeas court that he or she is entitled to such review. Upon certification, the petitioner has only twenty days to file an appeal. See Practice Book § 80-1, formerly § 4166C. In the present case, through no fault of the indigent petitioner, the appeal was delayed for almost six months. The issue before us is whether, under the uncontested circumstances of the administrative confusion that caused the inordinate delay, the Appellate Court abused its discretion by dismissing the petitioner’s untimely appeal. We conclude that it did and, accordingly, reverse the judgment of the Appellate Court.

The petitioner, Reynaldo Ramos, was convicted of the crimes of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). On his direct appeal, the Appellate Court affirmed the judgment of conviction. State v. Ramos, 36 Conn. App. 831, 661 A.2d 606, cert. denied, 235 Conn. 902, 665 A.2d 905 (1995).

On August 22, 1994, the petitioner filed this petition for a writ of habeas corpus, in which he challenged the validity of his criminal conviction on the ground of the ineffectiveness of his trial counsel and his appellate counsel. On October 29,1996, after an evidentiary hearing, the habeas court dismissed the petition, but granted the petitioner’s request for certification to appeal.

Throughout the proceedings that followed, the petitioner manifested his intent to appeal the dismissal of his petition. The habeas court waived the fees and costs associated with an appeal, but did not appoint appellate counsel. Nothing further transpired until, stirred to action by the petitioner’s inquiry, appellate counsel from the office of the chief public defender inquired into the situation and, on April 30, 1997, filed a late appeal on the petitioner’s behalf.

On the same day as the filing of the late appeal, at the suggestion of the Appellate Court, the petitioner’s counsel filed a motion to permit a late appeal. The respondent, the commissioner of correction, filed a written objection to the motion on the ground of the petitioner’s insufficient showing of good cause. On July 9, 1997, the Appellate Court denied the petitioner’s motion.

On September 17, 1997, the Appellate Court, on its own motion, held a hearing for the petitioner “to appear and give reasons, if any, why the appeal should not be dismissed as untimely pursuant to [Practice Book] § 4166C [now § 80-1].” Because of an oversight, no counsel appeared to represent the respondent. Counsel for the petitioner explained, in some detail, the administrative reasons for the inordinate delay. Counsel represented that, after the habeas court’s dismissal of the petition, there was confusion about who would represent the petitioner on appeal. In the office of the chief public defender, the habeas corpus unit serves as counsel at a habeas trial, while the legal counsel unit provides representation on appeal. Further confusion resulted from possible claims of conflict of interest, because the petitioner, throughout his criminal trial, had been represented by an attorney associated with the office of the public defender.

Following the hearing, the Appellate Court dismissed the appeal. Thereafter, it denied the petitioner’s subsequent motion for reconsideration or reargument, in which the petitioner had reiterated the administrative circumstances that had caused the inordinate delay. This court granted the petitioner’s request for certification, limited to the following issue: “In the circumstances of this case, did the Appellate Court properly dismiss the petitioner’s appeal from the habeas court’s denial of his petition on grounds of untimeliness?” Ramos v. Commissioner of Correction, 243 Conn. 958, 704 A.2d 805 (1997). We conclude that the Appellate Court abused its discretion in dismissing the petitioner’s appeal under the unusual circumstances of this case.

I

Our analysis begins with two background observations. One relates to the nature of appeals from dismissal of petitions for habeas corpus under § 52-470 (b). The other relates to the office of the public defender.

As we have held repeatedly, § 52-470 (b) does not impose a jurisdictional constraint on appellate review. See Seebeck v. State, 246 Conn. 514, 527, 717 A.2d 1161 (1998); James L. v. Commissioner of Correction, 245 Conn. 132, 137, 712 A.2d 947 (1998); Iovieno v. Commissioner of Correction, 242 Conn. 689, 696-97, 699 A.2d 1003 (1997); Simms v. Warden, 230 Conn. 608, 614-15, 646 A.2d 126 (1994); see also Practice Book § 80-1. That construction of the statute is rooted in our commitment to the purpose that animates our habeas corpus jurisdiction. “[T]he principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness.” (Internal quotation marks omitted.) Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992).

The office of the public defender is a well respected and important part of our criminal justice system. The office provides invaluable services to large numbers of indigent individuals who need its assistance to effectuate their state and federal constitutional rights to counsel in criminal proceedings. The present case is not, however, the first instance of difficulties, attributable to the internal processes of the office, that have caused unacceptable delays in the vindication of appellate rights. See Gaines v. Manson, 194 Conn. 510, 513-14, 521-28, 481 A.2d 1084 (1984).

The issue that we certified for appeal concerns the relationship between the propose for the time limitation on habeas corpus appeals and the function performed by the public defender’s office. If confusion in the office of the public defender causes an inordinate delay in the filing of an appeal for a habeas corpus petitioner, the issue for appellate courts is to determine the appropriate remedy. One remedy would require the petitioner to file a new petition for habeas relief premised on the inadequacy of appellate habeas counsel. That remedy would be inescapable if there were significant factual uncertainties about the specific cause for the delay. Another remedy would be to permit a late appeal. It is a reasonable inference from the per curiam judgment of the Appellate Court that it thought that the petitioner should rely on the former rather than on the latter remedy.

The petitioner has raised two separate subissues about the propriety of the judgment of the Appellate Court dismissing his appeal. First, did the Appellate Court have the authority to dismiss the appeal in the absence of a filing of a motion to dismiss by the respondent? Second, if the court had such authority, did it abuse its discretion in dismissing the appeal?

II

The petitioner challenges the authority of the Appellate Court to dismiss his appeal in light of the respondent’s failure to file a motion to dismiss the late appeal. Recognizing that the respondent filed a timely opposition to the motion to file the late appeal, the petitioner nonetheless asks us to hold that the Appellate Court was powerless to act, on its own motion, without a motion to dismiss from the respondent. We disagree.

The rules of practice vest broad authority in the Appellate Court for the management of its docket. Section 60-2 of the Practice Bookprovides that “[t]he supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed .... The court may, on its own motion or upon motion of any party ... (6) order that a party for good cause shown may file a late appeal . . . unless the court lacks jurisdiction to allow the late filing . . . .” Section 60-3 provides, in addition, that “[i]n the interest of expediting decision, or for other good cause shown, the court in which the appeal is pending may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its own motion and may order proceedings in accordance with its direction.”

Although these sections support the authority of the Appellate Court to dismiss a late appeal on its own motion, the petitioner argues that they are superseded by the provisions of Practice Book § 66-8. That section, entitled “Motion to Dismiss,” provides that “[a]ny claim that an appeal . . . should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal .... Any such motion must be filed in accordance with Sections 66-2 and 66-3 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.” Emphasizing the last sentence, the petitioner claims that the Appellate Court had no authority to dismiss his appeal under the circumstances of this case.

The petitioner’s argument founders on both procedural and substantive grounds. Procedurally, the argument fails because it was raised neither before the Appellate Court, nor before this court in the petition for certification. We are not persuaded to make an exception from applicable procedural rules in this case. Substantively, the argument fails because it draws an inappropriate negative inference from the last sentence of Practice Book § 66-8. That sentence merely reflects the uncontested principle, which the Practice Book could not alter, that any court is obligated to dismiss any case for lack of jurisdiction at any time. For nonju-risdictional issues, under Practice Book § 60-3, the court “may suspend the requirements or provisions of any of these [Practice Book] rales in a particular case ... on its own motion . . . ,”

III

In the absence of jurisdictional barriers, appellate tribunals must exercise their discretion to determine whether a late appeal should be permitted to be heard. Kelley v. Bonney, 221 Conn. 549, 559 & n.4, 606 A.2d 693 (1992); see State v. Stead, 186 Conn. 222, 227-29, 440 A.2d 299 (1982). In the exercise of that discretion, the Appellate Court has adopted a policy that, in other than exceptional cases, the need to address cases that were filed timely outweighs the need to permit appeals that are in fact late. Nicoll v. State, 38 Conn. App. 333, 335-36, 661 A.2d 101 (1995). Although the petitioner challenges the validity of that policy, we need decide only whether the circumstances of his late appeal are sufficiently exceptional to fall within the Appellate Court’s own limiting caveat. We conclude that the exceptional circumstances of this case made it an abuse of discretion to dismiss the petitioner’s late appeal.

In combination, three reasons persuade us that the petitioner’s late appeal should not have been dismissed. First, the late appeal arises from the dismissal of a petition for habeas corpus in which the habeas court certified that “a question is involved in the decision which ought to be reviewed by the court having jurisdiction . . . .” General Statutes § 52-470 (b). Second, the principle of judicial economy counsels against a new habeas corpus hearing if that hearing is likely to result in the reinstatement of the petitioner’s appeal. See James L. v. Commissioner of Correction, supra, 245 Conn. 147-48. Third, and most significant, the delay in the appeal cannot be attributed to the petitioner but arose from specifically identified confusion in the office of the public defender.

Although delays in the filing of appeals by the office of the public defender are understandable, they are not automatically excusable. On the conclusory record then before it, the Appellate Court properly denied the motion to file a late appeal.

At the hearing on the court’s motion to dismiss, however, the record was significantly amplified. The petitioner informed the court, in detail, about concerns relating to possible conflicts of interest arising out of his continued representation by the office of the public defender. He also described the confusion engendered in the office of the public defender by the assignment of one group of public defenders to the trial of habeas petitions, and the assignment of another group of public defenders to appeals from the dismissal of habeas petitions. That confusion was exacerbated by the failure of the habeas court to enter an order on the petitioner’s request for counsel.

The respondent made no appearance at the hearing on the court’s motion and, therefore, rebutted none of the specific representations of fact that were proffered on behalf of the petitioner. The respondent similarly did not contest the representations of fact contained in the petitioner’s subsequent motion for reconsideration or reargument, which was based on essentially the same grounds. The Appellate Court, therefore, had no basis for rejecting the accuracy of those representations.

We conclude, therefore, that the petitioner showed good cause for the lateness of his appeal and that the Appellate Court abused its discretion when it dismissed his appeal. We add a note of caution, however. It will be a rare case that does not fall within the broad scope of the discretion conferred upon the Appellate Court. Late appeals from dismissals of petitions for habeas corpus, which require an exercise of discretion, do not lend themselves to a bright line test. It is the obligation of petitioners and their counsel to comply with statutory time requirements. Failure to do so risks the dismissal of otherwise meritorious appeals.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings according to law.

In this opinion CALLAHAN, C. J., and BORDEN and PALMER, Js., concurred.

BERDON, J.,

concurring. Although I agree with the majority that the Appellate Court abused its discretion in the present case, I also believe that the majority has diluted the contours of our supervisory duty with its “note of caution,” which warns that “[i]t will be a rare case that does not fall within the broad scope of the discretion conferred upon the Appellate Court.” Because this note suggests that my colleagues and I differ in the ways that we regard the result that we have reached, I write separately to express my views.

All of our courts — trial, Appellate and Supreme— must above all else ensure that they do justice. At the risk of stating the obvious, the stakes are high in a criminal case. Our judges determine who shall live and who shall die, who shall be stripped of liberty and who shall remain free. Given these life-shattering consequences, the courts must exercise their discretion in a manner that comports with justice, not merely the black letters of the law. As we put it two decades ago, “[discretion . . . imports something more than leeway in decision-making. See State v. Battle, 170 Conn. 469, 365 A.2d 1100 [1976]; State v. Gilligan, 92 Conn. 526, 103 A. 649 [1918]; McCormick, Evidence (2d Ed.) § 190. Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). Accordingly, our duty to review a lower court’s exercise of its discretion should not be circumscribed by a self-imposed caution that reversal will be a rarity. Instead, we must be guided by fundamental fairness, the touchstone of which is the concept that justice must be done for everyone who comes before the law.

For these reasons, I am able to join only in the result that the majority has reached in this case.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       General Statutes § 53a-49 provides: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 29-35 provides in relevant part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”
      General Statutes § 29-37 (b) provides: “Any person violating any provision of subsection (a) of section 29-35 may be fined not more than one thousand dollars and shall be imprisoned not less than one year nor more than five years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced by the court. The court shall specifically state the mitigating circumstances, or the absence thereof, in writing for the record. Any pistol or revolver found in the possession of any person in violation of any provision of subsection (a) of section 29-35 shall be forfeited.”

       At the time of the hearing, Practice Book § 4166C, now § 80-1, provided: “When in any habeas corpus proceeding it is a condition precedent to an appeal from the judgment that the party desiring to appeal obtain certification that a question is involved in the decision which ought to be reviewed by the appellate court, the petition for such certification shall be made to the judge who tried the case within ten days after the case is decided, and if certification is granted the appeal shall be filed within twenty days from the issuance of the notice of certification, unless an application for waiver of fees, costs and security is filed pursuant to Sec. 4016 [now § 63-6], in which event the appeal shall be filed within twenty days from the decision on the application.” As of January, 1999, § 80-1 was amended to allow a petition to be brought to “a judge of the supreme or appellate court,” as well as to the judge who tried the case, and to allow for an appeal even where certification has been denied.

       At oral argument in this court, the petitioner represented that the oral presentation at the hearing was substantially similar to the written submission for reconsideration or reargument.

       At oral argument in this court, counsel for the petitioner represented that the petitioner had waived any possible conflict of interest. In light of that representation, counsel for the respondent agreed that no issue remained about any such conflict.

       No claim has been made that the written motion differed substantially from the oral representations made at the hearing on the motion to dismiss the appeal.

       See footnote 5 of this opinion.

       As the respondent aptly observes, any other construction of the relevant rules of practice would undermine the authority of the Appellate Court to decline to permit a late appeal. The late appeal could continue to exist, without time limitation, on the Appellate Court’s docket.

       We are not persuaded that, in the face of actual notice of the petitioner’s case and his desire to appeal, the failure to receive official notice addressed to the office of the public defender contributed materially to the delay in processing the appeal.

       In oral argument in this court, the respondent acknowledged the accuracy of the petitioner’s representations.


author: KATZ, J. BERDON, J., MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. DONALD DANIELS
    (SC 15992)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued November 3, 1998
    officially released March 16, 1999

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Robin Cutuli and David Zagaja, assistant state’s attorneys, for the appellee (state).
   Opinion

KATZ, J.

The defendant, Donald Daniels, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32. On appeal, we must resolve two issues. Initially, we must determine whether the defendant’s Alford plea, entered subsequent to the revocation of his probation, renders this appeal moot. We conclude that it does not. Additionally, we must determine whether the state, at the probation revocation hearing, had presented sufficient evidence to prove, by a preponderance of the evidence, that the defendant had violated the conditions of his probation. We conclude that the state satisfied its burden of proof and, therefore, we affirm the judgment of the trial court revoking the defendant’s probation.

The following facts and procedural history are pertinent to this appeal. On September 29, 1995, following his conviction for possession of narcotics in violation of General Statutes § 21a-279 (a), the defendant was sentenced to three years of incarceration, execution suspended, and placed on probation for three years. One of the conditions of probation required the defendant to obey all “criminal law[s] of the United States, this state, or any other state or territory.”

On July 15,1996, the defendant was arrested for allegedly breaking into an automobile in a parking lot in downtown Hartford. As a result, he was charged with criminal mischief in the third degree in violation of General Statutes § 53a-117, burglary in the third degree in violation of General Statutes § 53a-103, larceny in the sixth degree in violation of General Statutes § 53a-125b and tampering with a motor vehicle in violation of General Statutes § 53a-119b (c).

On the basis of this alleged criminal conduct, the state charged the defendant with violation of his probation, under § 53a-32; see footnote 1 of this opinion; and a probation revocation hearing commenced on June 24, 1997. Testifying at the hearing, Jesus Martinez, the owner of the vehicle, stated that after he and a friend, Denise Ayala, had left a Hartford club, they observed a person inside Martinez’ vehicle as they approached it. Martinez left the scene to summon the police and, upon his return, found that the defendant had exited his vehicle and was in the middle of the parking lot. After the defendant had fled the scene, Martinez discovered that one of the windows of his vehicle was broken, and a compact disc player and some tapes were missing from the automobile. Shortly thereafter, while riding in a police patrol car, Martinez saw the defendant on the street and identified him as the perpetrator.

On July 9, 1997, the trial court found that the defendant had violated the conditions of his probation and sentenced him to serve thirty-three months of the three year period of incarceration that previously had been imposed and suspended. The defendant appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). During the pendency of this appeal, the defendant pleaded guilty to burglary in the third degree under the Alford doctrine in connection with the incident regarding Martinez’ vehicle. See footnote 2 of this opinion. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the trial court: (1) improperly found that the state had proved, by a preponderance of the evidence, that the defendant had violated the conditions of his probation; and (2) violated the defendant’s due process rights by admitting into evidence Martinez’ out-of-court identification of the defendant. The state, however, asserts that the defendant’s Alford plea renders the appeal moot. Alternatively, the state disputes the defendant’s claims, arguing that: (1) the state presented sufficient evidence of the defendant’s probation violation; and (2) the court should not reach the defendant’s unpreserved due process claim.

We conclude that this appeal is not moot. As to the defendant’s first claim, we conclude that the trial court properly found that the state had satisfied its burden of proof. We decline to review the defendant’s due process claim, however, because it fails to satisfy the reviewability portion of the four part test for unpreserved claims that we enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

I

Before addressing the defendant’s claims on the merits, we must first determine whether the defendant’s Alford plea, entered subsequent to the probation revocation hearing that underlies this appeal, renders this appeal moot. “Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pen-dency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996).

The state contends that the present appeal is moot because the trial court can grant the defendant no practical relief. According to the state, if the court were to agree with the defendant’s claims on appeal, the defendant could be granted a new probation revocation hearing. The state asserts, however, that the defendant’s plea of guilty under the Alford doctrine would estop him from asserting his innocence at the new hearing. Essentially, the state argues that we can provide no practical relief to the defendant because a reversal of the trial court’s finding that the defendant had violated his probation would not improve the defendant’s prospects. Therefore, according to the state, the defendant’s “conviction controls the outcome of any second probation revocation hearing [and, therefore], the defendant’s appeal is moot.”

The defendant argues that the appeal is not moot because a finding that the evidence was insufficient to establish a violation of probation would entitle him to a judgment of acquittal for the violation of probation charge as well as the underlying offenses. Specifically, the defendant argues that if the court were to conclude that “proof of evidence of felonious conduct [was] not sufficient to establish a violation of probation, proof of such evidence [would] certainly not [be] sufficient to sustain a criminal conviction for such felonious conduct,” because the burden of proof in a criminal prosecution presents the state with a significantly higher threshold to meet than does the burden in a violation of probation proceeding. The defendant asserts, therefore, that because an acquittal on all charges would clearly afford the defendant practical relief, this appeal is not moot.

We agree with the defendant that his appeal is not moot, although we do so for a different reason. Even if we were to agree with the state’s contention that the defendant would be entitled only to a new hearing at which the violation of probation would be predetermined by his conviction pursuant to his Alford plea, we do not agree that holding such a hearing would be a pointless endeavor, because the trial court would have the discretion to impose a different disposition. Therefore, practical relief could await the defendant following a determination that he had violated a condition of his probation.

We have stated: “[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. . . . General Statutes § 53a-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

We recognize that the defendant’s conviction based on his Alford plea would establish a violation of the conditions of the defendant’s probation, thereby significantly lightening the state’s burden under the first component, the evidentiary phase, of a new probation revocation hearing. It is the second component, the sentencing phase, however, under which the defendant plausibly may find practical relief. Although a criminal conviction “ ‘affords a more than sufficient basis for revocation of probation’ State v. Pecoraro, 196 Conn. 305, 307, 493 A.2d 180 (1985); because “the trial judge has ‘an exceptional degree of flexibility’ in determining whether to grant or revoke probation and on what terms”; State v. Smith, supra, 207 Conn. 164, quoting Burns v. United States, 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266 (1932); it is by no means a foregone conclusion that, at a new hearing, the defendant will receive the same sentence as that imposed upon him at the first hearing, namely, the revocation of his probation and the imposition of thirty-three months of his three year- suspended sentence. The trial court, in its broad discretion, would be free to choose from among a number of statutorily enumerated dispositions, among which revocation and imposition of a portion of the defendant’s suspended sentence is merely one option. Therefore, we conclude that because this court could grant practical relief to the defendant, the defendant’s appeal is not moot.

II

Having concluded that this appeal is not moot, we next consider the defendant’s claim that the trial court improperly found that the state had presented sufficient evidence to prove, by a preponderance of the evidence, that he had violated the conditions of his probation. We conclude that the trial court’s finding was proper.

Before turning to the merits of the defendant’s claim, it is useful to note that the burden of proof in a probation revocation hearing is not proof beyond a reasonable doubt, as in the case of a criminal prosecution. Rather, according to § 53a-32 (b), “revocation shall [not] be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of rehable and probative evidence and by a preponderance of the evidence.” (Emphasis added.) See also State v. Davis, supra, 229 Conn. 295 (burden of establishing probation violation is preponderance of evidence standard).

At the defendant’s probation revocation hearing, the state presented two witnesses: probation officer Lawrence Reynolds and Martinez. Reynolds’ testimony may be summarized as follows. In October, 1995, Reynolds met with the defendant, read to him the conditions of his probation, and asked if he fully understood them. The defendant answered in the affirmative and signed the conditions in Reynolds’ presence. On the witness stand, Reynolds read the first condition of probation, which prohibited the defendant from violating any law of the United States, this state, or any other state or territory. Reynolds stated that, in addition to the criminal charges pending against the defendant, the defendant “was not in good standing at the time of the incident offense” because he had missed about six months of probation reporting, “had used drugs and had been dismissed dissatisfactory from drug treatment,” all of which were violations of the conditions of his probation.

Martinez’ testimony may be summarized as follows. Martinez and Ayala had left a Hartford club around 1 a.m. and were walking toward his vehicle when Ayala saw someone inside it. The perpetrator “was half inside of the trunk area of [his] vehicle and backseat . . . .” The car door was open and the interior light was on. The parking lot itself was also well lit. When he saw the person in his car, Martinez yelled at him, which caused the perpetrator to lift his head and look straight at Martinez for about thirty seconds. The perpetrator then leaned back inside the trunk. Martinez ran to summon the police. When he returned, Martinez found the perpetrator outside the vehicle, in the middle of the parking lot. The perpetrator then fled the scene. Martinez found that a small window of his vehicle was broken, there was damage to the dashboard, and a compact disc player and some tapes were missing from the vehicle. The police drove Martinez and Ayala around the area in a patrol car and, two to three minutes later, they came upon the defendant. Martinez stated that he “pointed out to the policeman that he looks just exactly like the person that was inside my vehicle. We got close to him, and ‘[t]hat’s the guy,’ I said to the policeman.” When asked if the person he saw in his car was present in the courtroom, Martinez pointed to the defendant.

On cross-examination, the defendant identified minor discrepancies in Martinez’ testimony. The defendant emphasized an alleged inconsistency regarding the perpetrator’s appearance. The defendant noted that although the police report indicated that Martinez had described the perpetrator as “balding,” Martinez testified that the perpetrator had “[r]eally short hair,” and was “[k]ind of bald but with hair.”

The defendant argued that Martinez’ identification was not a sufficient basis upon which to find, by a preponderance of the evidence, that the defendant had violated the conditions of his probation. After viewing a mug shot of the defendant that had been admitted into evidence at the court’s request, the court stated that “it’s a very close haircut. And I could see there where that could be interpreted as balding . . . .” The court then found the defendant in violation of the conditions of his probation.

On appeal, the defendant again argues that the evidence presented at the hearing, which consisted primarily of Martinez’ testimony, was insufficient for the trial court to find that the defendant had violated his probation. Specifically, the defendant argues that Martinez glimpsed the defendant only briefly in a parking lot at night, and that he showed confusion about the defendant’s appearance while testifying at the revocation hearing. The defendant claims that the reliability of the identification is further undermined by the fact that the police did not apprehend the defendant at the scene of the crime but, rather, arrested him “in another area of the city at a later time.” These arguments essentially mirror those made to the trial court.

On the evidence presented and the testimony elicited at the hearing, we cannot say that the trial court’s conclusion that the defendant violated his probation, reached after careful consideration of the evidence, was clearly erroneous. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997) (appellate court’s review of trial court’s findings of fact “is limited to deciding whether such findings were clearly erroneous” [internal quotation marks omitted]); see also State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996) (appellate court “may reverse the trial court’s initial factual determination that a condition of probation has been violated only if [it] determine [s] that such a finding was clearly erroneous” [internal quotation marks omitted]). “The determination of a witness’ credibility is the special function of the trial court.” (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 227, 673 A.2d 1098 (1996). The trial court in the present case noted that “[t]he whole case here is the credibility of [Martinez] . . . .” After seeing a photograph of the defendant with very short hair, the trial court concluded that Martinez’ description of the defendant as “bald but with hair” was not inconsistent. We presume that the trial court considered the other alleged discrepancies in Martinez’ testimony— such as his mistake as to the location of the arrest, and whether the defendant had looked at Martinez and Ayala before returning to what he was doing — arid properly performed its role as fact finder in assessing the credibility of the witness testifying before it. Although it made no such express findings, the trial court reasonably could have believed that: the parking lot lights and the dome light inside Martinez’ car provided sufficient illumination for Martinez to see the perpetrator clearly enough to make an accurate identification; a thirty second viewing of the perpetrator was sufficient to make the identification a reliable one; and two or three minutes was not too long a period of time to elapse between the peipetrator’s flight from the crime scene and the defendant’s arrest so as to undermine the reliability of the identification. In sum, the trial court was free to consider the facts and Martinez’ credibility, and to attach to them whatever weight the court reasonably deemed appropriate. We conclude, therefore, in light of all the evidence adduced at the hearing, that the trial court’s determination that the defendant had violated the conditions of his probation was not clearly erroneous.

Ill

The defendant’s second and final claim is that Martinez’ out-of-court identification of him violated his due process rights. Specifically, the defendant argues that the identification was “too suggestive and too unreliable and thus violated the defendant’s due process rights under Connecticut case law.” Citing State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984), the defendant notes that the determination of whether a pretrial identification procedure is violative of a defendant’s due process rights requires a two-pronged test. The first prong is whether the identification procedure was unnecessarily suggestive; the second is whether the resulting identification was not reliable in the totality of the circumstances. Id. The defendant claims that the procedure employed in this case was both unnecessarily suggestive and unreliable.

Because the defendant did not raise this claim before the trial court, we must determine whether the defendant can prevail under the four-prong test articulated instate v. Golding, supra, 213 Conn. 239-40. In Golding, we held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim.” State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998). We conclude that the defendant’s claim fails under the first prong of the Golding test.

In Golding, we stated that “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 213 Conn. 240.

We conclude that the record in this case is inadequate for review. We have stated that “[a] record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record contains the factual predicates for making such a determination.” State v. Torres, 230 Conn. 372, 378-79, 645 A.2d 529 (1994). In other words, in the present case, if all the facts surrounding the identification procedure were brought to light during the hearing, we could conceivably consider the claim even if the trial court had not done so. The factual background necessary for disposition of this claim, however, is deficient. Neither party questioned Martinez specifically regarding the identification procedure employed. Moreover, none of the police officers who conducted the procedure was called to testify. Finally, the trial court did not make any explicit findings as to the suggestiveness of the procedure. The only description of the procedure contained in the record is that of Martinez, in which he states that he was driven around the streets of Hartford until he saw someone that looked like the perpetrator. Moreover, we do not know whether Martinez was ever face-to-face with the defendant during the identification; how many other people were nearby on the street; how many other people they had passed, as they drove through the streets, that Martinez had not identified as the perpetrator; or what, if anything, the police officers said to him during the ride. In light of the foregoing, we conclude that this claim was not developed sufficiently in the trial court for this court to review the identification procedure for constitutional infiimity. Cf. id., 380 (record adequate for review of claim that canine sniff constituted impermissible search, where state trooper’s uncontested testimony resulted in “undisputed facts sufficient to determine that a canine sniff had occurred and the circumstances under which it had occurred”). Consequently, the defendant’s claim fails to satisfy the first prong of the Golding analysis, and we therefore decline to review it.

IV

In summary, we conclude that this appeal was not rendered moot by the defendant’s Alford plea. We further conclude that the trial court properly found that the state had presented sufficient evidence to prove, by a preponderance of the evidence, that the defendant had violated the conditions of his probation.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN, NOR-COTT and PALMER, Js., concurred.

BERDON, J.,

concurring in the result. It is no secret that many criminal defendants perceive that the system is stacked against them. It is for this reason that so many defendants are willing to cut their losses by entering Alford pleas. In the present appeal, the defendant elected to accept a consecutive sentence of fifteen months in order to avoid the threat of greater punishment. In other words, the defendant conducted a cost/ benefit analysis arid determined that he preferred the certainty of “only” fifteen months to the possibility of a substantially longer sentence. At no time, however, did he ever admit that he committed the crime.1 agree with Justice McDonald that it would be unjust to regard the defendant’s plea as conclusive and irrebuttable evidence of his guilt.

The majority leaves this issue for another day. I share Justice McDonald’s view that we have an obligation to inform criminal defendants and their attorneys of the consequences that flow from Alford pleas, which occupy a central role in our system of criminal justice. Accordingly, I do not join footnote 11 of the majority opinion.

MCDONALD, J.,

concurring. The majority today declines to decide whether an Alford plea would bar the defendant from asserting his innocence in any subsequent proceeding. See footnote 11 of the majority opinion. In fairness to criminal defendants who, everyday, and in very large numbers, enter Alford pleas to accept plea bargains while not admitting guilt, and for the sake of the criminal justice system, we should address this issue and not leave it in doubt. In this era of too much violent crime and the allocation of too few judicial resources to the criminal justice system, Alford pleas are essential.

The state contends that the defendant’s appeal is moot because the court cannot grant him any practical relief. Essentially, the state argues that the defendant’s Alford plea would estop him from establishing his innocence at a new hearing. According to the state, therefore, this court can provide no relief to the defendant because a reversal of the trial court’s finding of a violation of probation ultimately could not change the defendant’s status as a probation violator.

Although a conviction is a “more than sufficient basis for revocation of probation”; State v. Pecoraro, 196 Conn. 305, 307, 493 A.2d 180 (1985); I believe that the defendant’s Alford plea does not estop him from protesting his innocence at a subsequent hearing and thus his appeal is not moot.

In State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985), this court observed that a guilty plea under Alford is a “judicial oxymoron” because a guilty plea is a confession of guilt. We stated that with “a guilty plea under the Alford doctrine . . . the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” Id. We also observed in Palmer that, “[i]n North Carolina, v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the United States Supreme Court treated [an Alford plea] as the functional equivalent of a plea of nolo contendere.” State v. Palmer, supra, 169 n.3.

In Alford, the United States Supreme Court observed that a guilty plea under which the defendant maintains his innocence is the practical equivalent of a plea of nolo contendere: “The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us . . . .Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act [i.e., a nolo contendere plea] and a plea containing a protestation of innocence [i.e., an Alford plea] . . . .” North Carolina v. Alford, supra, 400 U.S. 37; see also State v. Martin, 197 Conn. 17, 20 n.7, 495 A.2d 1028 (1985).

It is well established that a plea of nolo contendere does not establish conclusively a defendant’s guilt in subsequent civil or criminal proceedings. See, e.g., annot., 89 A.L.R.2d 540, 600 (1963) (“[t]he fundamental rule, as unanimously accepted by all the courts as a rule expressing the effect of the plea in the case, is that while the plea of nolo contendere may be followed by a sentence, it does not establish the fact of guilt for any other purpose than that of the case to which it applies”).

The United States Circuit Courts of Appeals have held that pleas of nolo contendere may not be used to establish guilt conclusively in subsequent civil and criminal proceedings. See, e.g., Doherty v. American Motors Corp., 728 F.2d 334, 337 (6th Cir. 1984) (“aplea of nolo contendere is a confession only for the purpose of the criminal prosecution and does not bind the defendant in a civil action for the same wrong”); Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893-94 (2d Cir. 1976) (consent decrees, like nolo contendere pleas, may not be used in subsequent proceeding for collateral estoppel purposes, since issues sought to be precluded were not actually litigated). The majority of state courts also have so held. See, e.g., State v. Ruby, 650 P.2d 412, 414 (Alaska App. 1982) (“[A] conviction, even though based upon a plea of nolo contendere, is admissible in a subsequent probation revocation proceeding to prove a violation of law. . . . Consistent with general law governing pleas of nolo contendere, such evidence is, however, not conclusive against [the defendant]. It does not collaterally estop him from protesting his innocence and, consequently, he should be given an opportunity, if he requests it, to put on evidence which would support his contention that he is not guilty . . . .”); Maselli v. State, 446 So. 2d 1079, 1080-81 (Fla. 1984) (at probation revocation proceeding, “[t]he judge may rely on [a] conviction even if it was imposed pursuant to a plea of nolo contendere,” but “the probationer must be provided an opportunity to be heard on . . . whether he is guilty of the charge to which he pleaded no contest”). Connecticut decisions are in accord with this majority view. State v. Bridgett, 3 Conn. Cir. Ct. 206, 208-209, 210 A.2d 182 (1965) (“[t]he defendant is not estopped from denying the facts to which he pleaded nolo contendere in a subsequent judicial civil proceeding”). With respect to an Alford plea, the Appellate Court stated in Johnson v. Commissioner of Correction, 36 Conn. App. 695, 706, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995), that “an Alford plea . . . would have enabled [the defendant] to continue to maintain his innocence.”

I conclude that the defendant’s Alford plea may not be used at a subsequent probation revocation hearing as conclusive proof that he violated the conditions of his probation. The state may present evidence of his conviction at the hearing, but the Alford plea is not dispositive of his guilt of the alleged crime for which he previously entered the Alford plea. At any new probation revocation hearing, I believe that the defendant retains the right to contest his guilt, despite the fact that he had pleaded guilty under the Alford doctrine and was thereby convicted.

It is this court’s responsibility to guide the parlies and the trial courts. Literally thousands of Alford pleas have been made and may be made with the understanding that the defendant is not admitting guilt. If the effect of such a plea will be to bar a later contest of guilt in another proceeding, I fail to see why any defendant would enter an Alford plea. As the highest court in this state, we should either give effect to the “protestation of innocence”; North Carolina v. Alford, supra, 400 U.S. 37; in an Alford plea or repudiate our past decisions approving its use. A civilized criminal justice system demands nothing less.

I do agree that the trial court carefully and thoughtfully considered the ample evidence demonstrating that the defendant did violate the conditions of his probation. Accordingly, I concur in the result.

       General Statutes § 53a-32 provides: “Violation of probation or conditional discharge. Arrest. Hearing. Disposition, (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Whenever a sexual offender, as defined in section 54-260, has violated the conditions of his probation by failing to notify his probation officer of any change of his residence address, as required by said section, such probation officer may notify any police officer that such person has, in his judgment, violated the conditions of his probation and such notice shall be sufficient warrant for the police officer to arrest such person and return him to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall present to the detaining authorities asimilar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial.” Commissioner of Correction v. Gordon, 228 Conn. 384, 385 n.l, 636 A.2d 799 (1994). “A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Additionally, the conditions state: “Drug Counselling]” and “Stay away from 710-714 Vine Street.”

       General Statutes § 53a-117 provides in relevant part: “Criminal mischief in the third degree: Class B misdemeanor, (a) A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another, or (B) tampers with tangible property of another and thereby causes such property to be placed in danger of damage; or (2) damages tangible property of another by negligence involving the use of any potentially harmful or destructive force or substance, such as, but not limited to, fire, explosives, flood, avalanche, collapse of building, poison gas or radioactive material. ...”

       General Statutes § 53a-103 provides in relevant part: “Burglary in the third degree: Class D felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein. ...”

       General Statutes § 53a-125b provides in relevant part: “Larceny in the sixth degree: Class C misdemeanor, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the properly or service is two hundred fifty dollars or less. . . .”

       General Statutes § 53a-119b provides in relevant part: “Using motor vehicle or vessel without owner’s permission. Interfering or tampering with a motor vehicle. First offense: Class A misdemeanor. Subsequent offense: Class D felony. ... (c) A person is guilty of interfering or tampering with a motor vehicle when: (1) He puts into motion the engine of any motor vehicle while it is standing without the permission of the owner except that a property owner or his agent may remove any motor vehicle left without authorization on such owner’s property in accordance with section 14-145; or (2) with intent and without right to do so, he damages any motor vehicle or damages or removes any of its parts or components. . . .”

       The defendant explicitly states that he “does not rely on double jeopardy; instead, he relies on logic.” Double jeopardy principles are implicit, however, in his assertion that he is entitled to a judgment of acquittal rather than be subject to a new probation revocation hearing.
      Because we conclude that this appeal is not moot; see part I of this opinion; and that the evidence adduced at the probation revocation hearing was sufficient to establish a probation violation; see part II of this opinion; we need not consider the appropriate relief to be afforded a defendant in a case in which the evidence was insufficient to establish a violation. Specifically, we do not resolve the issue of whether, based upon the reasoning of State v. McDowell, 242 Conn. 648, 654, 699 A.2d 987 (1997) (principles of double jeopardy do not bar criminal trial on underlying charges after defendant found in violation of probation), the state may bring a second probation revocation hearing on the same facts, when, at the conclusion of an Initial hearing, a court concludes that insufficient evidence was presented to support revocation.

       See footnote 1 of this opinion.

       In light of our conclusions on the mootness and sufficiency issues; see footnote 9 of this opinion; we need not decide today whether, in light of his guilty plea under Alford, the doctrine of collateral estoppel would bar the defendant from asserting his innocence in a subsequent hearing.

       First, the defendant noted a discrepancy between Martinez’ testimony and the statement he had given to the police. Specifically, the defendant noted that Martinez testified that when he had yelled at the defendant, the defendant had looked at him and Ayala and then returned to what he had been doing inside the vehicle. The statement Martinez had given to the police, however, indicated that when Martinez yelled at the defendant, the defendant exited the vehicle and ran. Martinez made no mention of the defendant returning to what he had been doing prior to Martinez’ arrival.
      The defendant also asked Martinez about his statement that, while riding around Hartford in the police patrol car, he had seen the defendant on Chapel Street. The defendant noted that this testimony conflicted with the police report, which indicated that the defendant had been apprehended at the intersection of Walnut and Chestnut Streets. Martinez responded that he did not live in the area.

       Defense counsel stated: “I don’t think this identification is enough, Your Honor. And I think based on the fact that my client was found so far away from where [the incident] actually happened, Your Honor, I don’t think it is enough to pinpoint my client. My client was not caught in the act, Your Honor. They grabbed him many blocks away after a shaky identification from someone who was in clubs all night, Your Honor.”

         We had ordered the parties to file supplemental briefs limited to the following question: “In the event the court should conclude that the evidence was insufficient to support the probation revocation order, would the defendant be entitled to relief in the form of a judgment of acquittal? See State v. Carey, 30 Conn. App. 346, 355 [620 A.2d 201] (1993) (‘[w]hen the evidence adduced at a probation revocation hearing is insufficient, the defendant is entitled to a judgment of acquittal’), rev’d on other grounds, 228 Conn. 487 [636 A.2d 840] (1994); but see State v. McDowell, 242 Conn. 648, 653 [699 A.2d 987] (1997) (bar of double jeopardy attaches only to proceedings that are essentially criminal, and probation revocation hearings are not considered criminal proceedings).” Because we conclude, however, that the evidence was sufficient to support the revocation of the defendant’s probation, we need not address this issue.

       To support his claim that, the identification was unnecessarily suggestive, the defendant relies essentially on the fact that the police did not use a lineup or photographic array but, rather, “drove [Martinez] around the city of Hartford, spotted a black male that resembled the perpetrator’s description and said to [Martinez], ‘Is that him?’ ” Martinez’ testimony differs, however, from the defendant’s version of the identification procedure. According to Martinez, as the police drove him and Ayala around the city, Martinez himself saw the defendant and identified him to the police as someone that “looks just exactly like the person that was inside my vehicle.”
      To demonstrate the unreliability of the identification, the defendant cites as support two cases, State v. Figueroa, 235 Conn. 145, 150-60, 665 A.2d 63 (1995) (victim’s identification reliable after photographic array and after victim had viewed her assailant during twenty to thirty minute assault and during subsequent car ride), and State v. Copeland, 22 Conn. App. 98, 104-108, 576 A.2d 567 (1990) (identification reliable because victim had viewed defendant for ten to fifteen minutes on morning of crime). The defendant argues that, because Martinez’ thirty second opportunity to see the person in his car was significantly shorter than the victims’ similar opportunities in those cases, the identification in this case is unreliable.

       In this connection, we assume, without deciding, that a claim of unduly suggestive identification under the due process clause applies to a revocation of probation proceeding. Cf., e.g., State v. Jacobs, 229 Conn. 385, 391-92, 641 A.2d 1351 (1994) (exclusionary rule does not generally apply to probation revocation proceedings); Payne v. Robinson, 207 Conn. 565, 571-72, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988) (same).

         Martinez did state, however, that the defendant was not placed in the same car with him after he was apprehended.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       If the defendant is in fact innocent, one may readily understand his reluctance to make such an admission.

       In North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the United States Supreme Court upheld the defendant’s guilty plea even though he continued to proclaim his innocence. The court analogized this guilty plea to a plea of nolo contendere, defined as “a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.” Id., 35.

       See, e.g., State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986) (“[u]nder [Alford], a criminal defendant is not required expressly to admit his guilt, but effectively to consent to being punished as if he were guilty”); see also State v. Coleman, 242 Conn. 523, 527, 700 A.2d 14 (1997); State v. Garvin, 242 Conn. 296, 299, 699 A.2d 921 (1997); State v. Domian, 235 Conn. 679, 683, 668 A.2d 1333 (1996); State v. Blue, 230 Conn. 109, 110, 644 A.2d 859 (1994); Commissioner of Corrections. Gordon, 228 Conn. 384, 385, 636 A.2d 799 (1994); State v. Campbell, 224 Conn. 168, 171, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S. Ct 2365, 124 L. Ed. 2d 271 (1993); State v. Esposito, 223 Conn. 299, 302 n.2, 613 A.2d 242 (1992); State v. Pinnock, 220 Conn. 765, 777 n.4, 601 A.2d 521 (1992); State v. Anderson, 220 Conn. 400, 403, 599 A.2d 738 (1991); State v. Niblack, 220 Conn. 270, 275, 596 A.2d 407 (1991); State v. Badgett, 220 Conn. 6, 8, 595 A.2d 851 (1991); Mainiero v. Liburdi, 214 Conn. 717, 720, 573 A.2d 1207 (1990); State v. Simms, 211 Conn. 1, 3, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989); State v. Crenshaw, 210 Conn. 304, 306, 554 A.2d 1074 (1989); State v. Wright, 207 Conn. 276, 279, 542 A.2d 299 (1988); Sutton v. Lopes, 202 Conn. 343, 344, 521 A.2d 147 (1987); Oppel v. Lopes, 200 Conn. 553, 555, 512 A.2d 888 (1986); State v. Watson, 198 Conn. 598, 601, 504 A.2d 497 (1986); State v. Sutton, 197 Conn. 485, 487, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986); State v. James, 197 Conn. 358, 359, 497 A.2d 402 (1985); State v. Stanley, 197 Conn. 309, 311, 497 A.2d 46 (1985); State v. Palmer, supra, 196 Conn. 169; State v. Suggs, 194 Conn. 223, 224-25, 478 A.2d 1008 (1984); State v. Shockley, 188 Conn. 697, 699, 453 A.2d 441 (1982); Blue v. Robinson, 173 Conn. 360, 378, 377 A.2d 1108 (1977).