Volume 209 — Connecticut Appellate Reports

The defendant, who was convicted of operating a motor vehicle while under the influence of intoxicating liquor and reckless driving, and whose sentence was enhanced for twice previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs, appealed to this court. The entirety of the motor vehicle stop that led to his arrest was recorded by a camera in the arresting state trooper's vehicle, although the audio recording was briefly inter- rupted when the trooper, K, temporarily turned off the microphone on his uniform, to speak with a second trooper, Q. The defendant claimed that the trial court improperly denied his motion to suppress certain statements he made to the police during a postarrest interview, as he claimed he had not voluntarily, knowingly and intelligently waived his rights under Miranda v. Arizona (384 U.S. 436), denied his motion to preclude the testimony of the arresting state troopers as a sanction for K having turned off his microphone, and sustained the state's objection to questions regarding a finding by a hearing officer of the Department of Motor Vehicles that no probable cause existed to arrest the defen- dant. Held: 1. The defendant could not prevail on his claim that the trial court erred in denying his motion to suppress his statements to the police during his postarrest interview: the court properly determined that the defendant had been advised of his Miranda rights before he made his statements in response to police interrogation, the defendant having previously conceded that he was advised of his rights both while being transported to the police station and while at the station and the defendant failed to challenge the first advisement as invalid, thus, the defendant conceded that he was taken into custody, properly advised of his rights prior to interrogation, remained silent, and later decided to speak during interrogation; moreover, the court properly determined that the defen- dant implicitly had waived his Miranda rights voluntarily, knowingly and intelligently prior to making statements to the police, as it reasonably could be inferred that the defendant understood his right to remain silent, as he did so after K initially advised him of his rights, and, at the police station, he was again advised of his rights as well as the consequences of refusing a Breathalyzer test, which he acknowledged; furthermore, the defendant's knowledge of his rights from his two prior arrests further supported the court's conclusion that he understood those rights, as did the defendant's course of conduct in voluntarily answering multiple questions by the police and declining the opportunity to contact an attorney after it had been offered to him. 2. The trial court did not abuse its discretion in denying the defendant's motion in limine, in which he sought either to preclude the testimony of K and Q or an instruction permitting the jury to draw an adverse inference against the state because K intentionally had turned off his body camera during the traffic stop, as K's action did not constitute a failure to preserve evidence or the destruction of evidence: the evidence before the court showed that K had acted in a manner that failed to create an audio recording, thus, evidence consisting of such a recording did not actually exist; moreover, the defendant failed to cite to any authority demonstrating that the troopers had a legal duty to record their conversation at the scene of the motor vehicle stop, as the administrative guidelines cited by the defendant did not create a cognizable due process interest in the defendant, and the court made no finding that the troopers actually violated those guidelines. 3. The defendant could not prevail on his claim that the trial court erred in sustaining the state's objection to questions defense counsel asked K regarding a finding by a hearing officer of the Department of Motor Vehicles that no probable cause existed to arrest the defendant: the court properly did not admit the hearing officer's finding of no probable cause to permit the defendant to impeach the arresting officers' credibil- ity as the finding constituted extrinsic evidence, and defense counsel properly was permitted to, and did, cross-examine the arresting officers regarding their administration of field sobriety tests; moreover, the defendant's unpreserved claim that the hearing officer's finding was relevant and admissible to prove that no probable cause existed to arrest the defendant was not reviewable pursuant to the second prong of State v. Golding (213 Conn. 233) because the claim was purely evidentiary in nature and not of constitutional magnitude; furthermore, even if this court were to reach the merits of the defendant's claim, the finding, if offered to prove that there was no probable cause to arrest the defendant, would be inadmissible, as probable cause to arrest the defendant was not an element of either of the offenses on which the defendant was tried, thus, the finding was not material to the jury's determination of the case before it. Argued April 5—officially released December 7, 2021

The petitioner, who had previously been convicted of murder, sought a writ of habeas corpus, claiming that he received ineffective assistance from his criminal trial counsel, S. The petitioner's first trial resulted in a mistrial following a hung jury, and, at the second trial, the jury found the petitioner guilty. Following a trial, the habeas court granted the petition for a writ of habeas corpus on the ground that, during the petitioner's second trial, S failed to present testimony from G, the peti- tioner's girlfriend at the time of the shooting, as an alibi witness. The court emphasized that there was a hung jury at the petitioner's first trial and that, although it was not possible to discern the individual jurors' credibility assessments, the only evidence contradicting the state's evi- dence at the first trial was G's testimony. The court reasoned that, therefore, one half of the first jury was unable to conclude that the state had met its burden of proof in light of G's testimony, and that G's testimony impacted the outcome of the first trial. From the judgment rendered thereon, the respondent, the Commissioner of Correction, on the granting of certification, appealed to this court. Held that the habeas court incorrectly determined that S rendered ineffective assistance by failing to present an alibi defense: the court's determination was based on the improper assumption that the six jurors from the first trial who did not vote in favor of finding the petitioner guilty were influenced by G, and that G's testimony contributed to the jury's inability to conclude that the state had met its burden of proof beyond a reasonable doubt; moreover, although the jury requested playback of G's testimony, G was one of seven witnesses whose testimony was reviewed by the jury during deliberations; accordingly, the court's finding that S rendered deficient performance by failing to call G as an alibi witness was inextricably intertwined with its determination as to the reason for the hung jury in the petitioner's first trial, and because the reasons why there was a hung jury are not ascertainable, it would be guesswork for the court to attempt to determine such reasons. Argued May 19—officially released December 7, 2021

The plaintiff union sought to enjoin the defendants from proceeding with a disciplinary hearing against E, a police officer represented by the plaintiff and employed by the defendant town, until the completion of a pending criminal prosecution against E. Following a hearing, the trial court rendered judgment granting the plaintiff's application for a tempo- rary injunction. The named defendant appealed to this court, claiming that the court used an incorrect legal standard in granting the plaintiff's application. Held that the trial court improperly reviewed the plaintiff's application for a temporary injunction pursuant to the standard for adjudicating a motion for a stay of civil proceedings; moreover, unlike the decisions erroneously relied on by the court, Lee v. Harlow, Adams & Friedman, P.C. (116 Conn. App. 289) and Tyler v. Shenkman-Tyler (115 Conn. App. 521), which involved motions to stay proceedings before the court, this case involved the court attempting to enjoin a separate proceeding conducted by another government entity, thus, the court erred in applying a balancing of the equities test; furthermore, pursuant to Nosik v. Singe (40 F.3d 592), the proper standard to apply in a case involving a request to enjoin ongoing administrative disciplinary proceedings is the standard for adjudicating a temporary injunction, and, as the court made no findings as to whether the plaintiff would suffer irreparable harm in the absence of injunctive relief, the case was remanded for the court to apply the correct standard and to make the requisite findings. Argued April 5—officially released December 7, 2021

The plaintiff employee appealed to this court from the decision of the Compensation Review Board affirming the decision of the Workers' Compensation Commissioner finding that the defendant nonprofit entity, created pursuant to the Connecticut Insurance Guaranty Association Act (§ 38a-836 et seq.), discharged its obligations under a provision (§ 31- 307a (c)) of the Workers' Compensation Act (§ 31-275 et seq.) that entitles certain injured employees to cost of living adjustments to their disability benefits. The plaintiff sustained a compensable injury and, thereafter, entered a voluntary agreement with his employer, the named defendant. Following the insolvency of the named defendant's insurer, the defendant assumed responsibility for the payment of the plaintiff's disability benefits, and C was assigned to administer his claim. There- after, C identified that the plaintiff was entitled to a prospective cost of living adjustment (COLA) and a retroactive lump sum COLA payment, and C set up weekly prospective COLA payments and mailed a check for the retroactive lump sum COLA payment to the plaintiff's attorney. Upon being informed by the plaintiff that he had not received the check, C immediately began an investigation, and the defendant's head of accounting opened an investigation with the drawing bank, which deter- mined that the proper party had endorsed the check. Subsequently, the plaintiff's attorney admitted to C that he had received the check and had given it to the plaintiff's father, Howard Austin, Sr. At the hearing before the commissioner, the plaintiff testified that the signature on the check was his father's signature. Although the plaintiff maintained that his legal name is Howard Austin, Jr., and that he uses that name on all legal documents, the COLA check, his weekly compensation checks and the agreement with his employer all bore the name Howard Austin. The plaintiff filed a claim seeking an order requiring the defendant to reissue the retroactive lump sum COLA payment, asserting that he was never paid as required by § 31-307a (c). In support of his claim, the plaintiff cited, inter alia, the negotiable instruments provisions of the Uniform Commercial Code. The commissioner denied the plaintiff's claim, con- cluding that the defendant had discharged its obligations under § 31- 307a (c) by mailing the COLA check to the plaintiff's attorney and, thereafter, promptly investigating the matter upon receiving information that the plaintiff never received the check. In reaching his decision, the commissioner declined to apply the Uniform Commercial Code. The plaintiff thereafter appealed to the board, which affirmed the commis- sioner's decision, and the plaintiff appealed to this court. Held that the board did not err in determining that the commissioner properly concluded that the defendant had discharged its obligations under § 31- 307a (c): the commissioner's decision was supported by the facts, includ- ing that the defendant followed standard practice in mailing the COLA check to the plaintiff's attorney, that making the check payable to How- ard Austin was consistent with the weekly compensation checks sent to the plaintiff, that, when the check was presented at the drawee bank to transfer the funds to the holder, there were sufficient funds in the defendant's account and the check was negotiated without delay, and that, even though any alleged issue with the transfer of funds must have occurred after the check left the defendant's control and was delivered to the plaintiff's attorney, the defendant, when notified of an issue with the plaintiff's receipt of the funds, conducted an investigation into the alleged issue, which resulted in the determination that the proper payee benefited from the funds; moreover, the board correctly concluded that the commissioner properly declined to apply the Uniform Commercial Code, as its application was not incidentally necessary to the commis- sioner's resolution of the plaintiff's claim. Argued October 18—officially released December 7, 2021

The petitioner, who had previously been convicted of various crimes in connection with the shooting death of the victim, sought a writ of habeas corpus, claiming ineffective assistance of his previous habeas counsel, V. Following an evidentiary hearing, the habeas court denied the petition, concluding that the petitioner had failed to demonstrate that V had acted deficiently in failing to procure the appearance and testimony of two witnesses at his first habeas trial—D, who the petitioner claimed had perjured her testimony at his criminal trial, and S, whose testimony both allegedly supported the petitioner's claim that his trial counsel was ineffective and who could have impeached the testimony of eyewitnesses to the shooting at his criminal trial. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal, the petitioner having failed to demonstrate that the issues raised in his petition were debatable among jurists of reason, that a court could have resolved the issues in a different manner or that the questions were adequate to deserve encouragement to proceed further: the petitioner failed to demonstrate that V's decision not to call D as a witness at his first habeas trial was not reasonably competent or outside of the wide range of competence displayed by attorneys with ordinary training and skills, as V completed a reasonable investigation by reviewing D's testimony at the petitioner's criminal trial, sending his investigator to D's house and serving her with a subpoena, and V provided an adequate explanation for his decision not to call D as a witness, as D had testified against the petitioner at his criminal trial, V believed D's testimony at the criminal trial to be credible, D stated unambiguously that she would not testify at the habeas trial, and V had no idea of what D might say if he compelled her testimony because she had refused to speak to his investigator for longer than ten minutes; moreover, the petitioner failed to present affirmative evidence that D's testimony would have been helpful to his case, as D invoked her fifth amendment privilege and refused to testify at his second habeas trial; furthermore, the petitioner failed to establish that, had V called S as a witness at the first habeas trial, there was a reasonable probability that the outcome would have been different, as S was not present when the shooting took place and did not witness any of the events leading up to the shooting or the shooting itself, and S's testimony at the second habeas trial that he did not witness the petitioner and the victim arguing on the day of the shooting and that the petitioner and the victim were friendly would have had an isolated, trivial effect on the inferences that could be drawn from the evidence, as there was ample evidence in the record supporting the verdict in the petitioner's criminal trial, including the testimony of two witnesses that they saw the petitioner shoot the victim, which was corroborated by a third witness' testimony that D exclaimed immediately after the shooting that the petitioner shot the victim, the petitioner fled the scene of the shooting and thereafter evaded the police for approximately one month, and evidence that, while in prison, the petitioner wrote letters to a witness attempting to persuade her not to testify at his probable cause hearing, to lie to the police and to encourage others to lie to the police. Argued September 7—officially released December 7, 2021

The substitute plaintiff, U Co., sought to foreclose a mortgage on certain real property of the defendant G. B Co., which commenced the foreclo- sure action, had assigned the note and mortgage to U Co., which there- after was substituted as the plaintiff. During the foreclosure proceeding, U Co. presented the trial court with a lost note affidavit from B Co., in which B Co. stated that the original mortgage note was lost and could not be found. The trial court rendered judgment of foreclosure by sale, at which U Co. was the successful bidder. G filed a motion to dismiss the foreclosure action, alleging, inter alia, that there was no evidence that anyone had physical possession of the original note at the time the foreclosure action was commenced or at any time during the action. The trial court denied G's motion to dismiss, concluding that B Co. had standing to prosecute the foreclosure action at the time of its commencement. The court was presented with evidence pertaining to the original note, including the lost note affidavit, and credited the testimony of an employee of B Co. who was responsible for reviewing its business records. The court determined that B Co. was the holder of the note and the mortgage, and had possessed the original note with endorsements at the time the note was lost. The court thereafter rendered judgment for U Co., and G appealed to this court. Held that the trial court properly denied G's motion to dismiss the foreclosure action, B Co. having had standing to bring the foreclosure action at the time it was commenced: B Co. possessed and was the holder of the original note at the time it commenced the foreclosure action, the note, which was endorsed in blank and thus payable to bearer, was not lost prior to the commencement of the foreclosure action, G offered no credible evidence to rebut the presumption that B Co. owned the debt, and, the trial court having made those findings on the basis of its determi- nation that B Co.'s employee was a competent and credible witness, this court would not second-guess the trial court's credibility determination; moreover, although G's motion to dismiss was unclear as to whether his claim of lack of standing related to B Co. or to U Co., it nevertheless failed, as U Co.'s failure to produce the original note in court was not fatal to its foreclosure of the mortgage, the court having had before it the lost note affidavit and having found that credible evidence demon- strated that B Co. was the last entity to possess the original note with endorsements before commencing the litigation, and, although the note was lost while it was in B Co.'s possession, that did not affect U Co.'s ability to foreclose the mortgage, as U Co. was able to prove its owner- ship of the debt through the assignment of the note and mortgage that secured the debt. Argued September 23—officially released December 14, 2021

The defendant, who had previously been convicted of, inter alia, the crimes of manslaughter in the first degree with a firearm and felony murder, appealed to this court from the judgment of the trial court dismissing in part and denying in part his motion to correct an illegal sentence. The defendant claimed that the protection of the federal constitution against double jeopardy was violated when the state subjected and prosecuted him for multiple, mutually exclusive homicide offenses for a single act and also when the trial court vacated his conviction of manslaughter instead of his conviction of felony murder. The court determined that it did not have subject matter jurisdiction over the defendant's first claim, reasoning that it attacked the charging document itself rather than the sentencing proceeding. As to the defendant's second claim, the court reasoned that the sentencing court properly vacated his manslaughter conviction and sentenced him on his felony murder conviction. Held: 1. The trial court properly dismissed for lack of subject matter jurisdiction the defendant's claim that the charging document listed multiple homicide offenses in violation of his constitutional right against double jeopardy; although the claim purportedly pertained to double jeopardy, which can be raised in a motion to correct, it actually attacked the proceedings leading up to the conviction, namely, the charging document itself, and not the sentence or sentencing proceeding, and our case law is clear that motions to correct an illegal sentence that attack the conviction or the proceedings leading up to the conviction are not within the trial court's jurisdiction on a motion to correct an illegal sentence. 2. The trial court properly denied the defendant's claim that his sentence for his felony murder conviction was illegal because the sentencing court improperly vacated his conviction of manslaughter in the first degree with a firearm and instead sentenced him on the felony murder conviction, the sentencing court not having imposed multiple punish- ments for the single act of causing the death of the victim: this court, having conducted a double jeopardy analysis under a two step process, determined, first, that it was undisputed that the charges of manslaughter in the first degree with a firearm and felony murder arose out of the same act or transaction, and, second, under the rule of statutory construction pursuant to Blockburger v. United States (284 U.S. 299), that the crimes were separate because both required proof of elements that the other did not, but further determined, as our Supreme Court explained in State v. John (210 Conn. 652), that the legislature intended that felony murder and manslaughter in the first degree, which are alternative means of committing the same offense, be treated as a single crime for double jeopardy purposes, such that it did not intend that a defendant could be sentenced for both; moreover, the sentencing court's decision to vacate the less serious felony of manslaughter was proper despite the erroneous statements of both counsel that manslaughter was a lesser included offense of felony murder because vacatur of the less serious homicide offense was proper under John, and the defendant failed to demonstrate that the sentencing court abused its discretion in determin- ing that the felony murder conviction controlled and in vacating the manslaughter conviction. Argued September 20—officially released December 14, 2021

The plaintiffs, B Co., the owner of certain real property in Norwalk, and D, the former owner of that property and the sole member of B Co., brought claims, inter alia, of adverse possession with respect to a contested area abutting property owned by the defendant, Y Co., and formerly owned by the defendant A. Following a bench trial, the trial court granted the defendants' oral motion to dismiss pursuant to the applicable rule of practice (§ 15-8). In concluding that the plaintiffs failed to establish a prima facie case of adverse possession, the court relied on its finding that D thought, erroneously, that the contested area belonged to her. Thereafter, the court, relying on its erroneous reasoning underlying its dismissal of the complaint, also rendered judgment for the defendants on their counterclaims seeking to quiet title and for trespass. On appeal, the plaintiffs claimed that the trial court erred by dismissing their com- plaint pursuant to Practice Book § 15-8, and by rendering judgment in favor of Y Co. on its counterclaim to quiet title, and in favor of A on her counterclaim for trespass. Held that the trial court erred in dismissing the plaintiffs' adverse possession claim because, when determining whether the plaintiffs had established a prima facie case, the court misapplied the law of adverse possession: the court operated under the mistaken understanding that a claimant's possession cannot be hostile if he or she believes that the contested property belongs to him or her, which represented a misunderstanding of the essential element of hostility; moreover, the court misunderstood and misapplied two additional elements of the law of adverse possession, namely, that a claimant's possession of contested property must last for an uninter- rupted period of fifteen years and that a claimant's possession must be open and visible, the court having erroneously stated that the require- ment that a claimant possess the contested property notoriously or hostilely is intended to allow the record owner to toll the fifteen year period of possession, the requisite fifteen year period begins when a claimant possesses the property at issue in such a way that puts the record owner on constructive notice, not when the record owner has actual knowledge of the possession, and, thus, the court's rejection of the plaintiff's claim of adverse possession was based on a misapplication of the law as to the elements of adverse possession relating to how long, and in what manner, the plaintiffs possessed the contested property; accordingly, the case was remanded for a new trial on the complaint and on the counterclaims. Argued September 13—officially released December 14, 2021

The defendant, who previously had been convicted of various drug related offenses, appealed to this court following the trial court's denial of his motion to correct an illegal sentence. In 2016, after the defendant had provided information to the state in connection with another case, the trial court granted the defendant's application for sentence modification, reducing his sentence to eight years of incarceration followed by five years of special parole. In 2018, our legislature enacted a public act (P.A. 18-63), which amended certain statutes (§§ 53a-28 (b) and 54-125e (b)) to eliminate special parole as a punishment for certain drug related offenses, including those for which the defendant had been convicted and sentenced, and to require that the trial court make certain determina- tions prior to the imposition of a period of special parole. Thereafter, the defendant filed a motion to correct his sentence, requesting that his term of special parole be eliminated. The trial court denied the motion, stating that the amendments to §§ 53a-28 (b) and 54-125e (b) required by P.A. 18-63 did not apply retroactively, and the defendant appealed to this court. Held that the trial court properly denied the defendant's motion to correct an illegal sentence: contrary to the defendant's claim, State v. Nathaniel S. (323 Conn. 290) did not control this court's retroac- tivity analysis because our Supreme Court found that the juvenile trans- fer statute at issue in that case was automatic and, by its nature, proce- dural, permitting the amendment to that statute to be applied retroactively, whereas the special parole punishment at issue in the present case was not automatic, rather, prior to the enactment of P.A. 18-63, choosing to impose it was an act of judicial discretion; moreover, in accordance with State v. Bischoff (337 Conn. 739) and State v. Kalil (314 Conn. 529), certain statutes (§§ 54-194 and 1-1 (t)), which create the presumption that changes to criminal statutes prescribing or defining punishment apply prospectively only unless such statutes expressly state otherwise, applied to § 53a-28 (b), a criminal statute that prescribes or defines a punishment; furthermore, the effective date of P.A. 18-63 is the only textual reference to the date of applicability found in the act and the act does not reference retroactivity, which, in light of §§ 54-194 and 1-1 (t), evidenced a legislative intent for prospective application only; accordingly, the plain language of P.A. 18-63 clearly and unambiguously prohibited retroactive application and such an interpretation did not lead to an absurd or unworkable result, especially when viewed in the context of §§ 54-194 and 1-1 (t). Argued October 4—officially released December 14, 2021

The defendant, who previously had been convicted on a plea of guilty of the crime of possession of narcotics with intent to sell, appealed to this court following the trial court's denial of his motion to correct an illegal sentence. In 2013, as part of his plea agreement, the defendant was sentenced to five years of incarceration, followed by five years of special parole. In 2018, our legislature enacted a public act (P.A. 18-63), which amended certain statutes (§§ 53a-28 (b) and 54-125e (b)) to eliminate special parole as a punishment for certain drug related offenses, includ- ing that for which the defendant had been convicted and sentenced, and to require the trial court to make certain determinations prior to the imposition of a period of special parole. Thereafter, the defendant filed a motion to correct an illegal sentence. The defendant argued that he should be resentenced because P.A. 18-63 eliminated special parole as a possible punishment for the offense for which he had been sen- tenced. The state filed an objection to the motion. The trial court denied the motion, stating that §§ 53a-28 (b) and 54-125e (b) were substantive, rather than procedural, in nature and, as such, the amendments required by P.A. 18-63 did not apply retroactively. Held that the trial court properly denied the defendant's motion to correct an illegal sentence: contrary to the defendant's claim, this court's retroactivity analysis was not con- trolled by the doctrine of clarifications because P.A. 18-63 was a change in the law, rather than clarifying legislation, as the legislature did not incorporate into the act an explicit statement of its intent to clarify §§ 53a-28 (b) and 54-125e (b), the prior language of those statutes was already clear, and, through the enactment of P.A. 18-63, the legislature added language to change such statutes by narrowing their application, and, accordingly, this court was not required to consider the legislative history of the act in determining the legislature's intent with regard to retroactivity; moreover, pursuant to State v. Omar (209 Conn. App. 283), because P.A. 18-63 repealed and replaced the imposition of a form of punishment for a criminal conviction, this court's retroactivity analysis was instead controlled by State v. Bischoff (337 Conn. 739), State v. Kalil (314 Conn. 529), and the savings statutes (§§ 54-194 and 1-1 (t)), and, interpreted in accordance therewith, P.A. 18-63 clearly and unambig- uously prohibited retroactive application of the amendments to §§ 53a- 28 (b) and 54-125e (b), and such an interpretation did not lead to an absurd or unworkable result. Argued October 4—officially released December 14, 2021

The plaintiff sought to recover unpaid commissions and hourly wages from the defendants pursuant to the applicable statutes (§§ 31-72 and 31-68). The defendants raised three special defenses and filed a five count counterclaim. Following a trial to the court, judgment was rendered in favor of the plaintiff as to his claims under § 31-72 and as to the defen- dant's counterclaim, but in favor of the defendant as to the plaintiff's claims under § 31-68. The trial court determined that the plaintiff was entitled to recover reasonable attorney's fees, and subsequently awarded the plaintiff the full amount of attorney's fees that he had sought. The defendants appealed to this court, claiming that the award of attorney's fees was excessive and unreasonable given that the plaintiff was only partially successful on his claims. Held that the trial court did not abuse its discretion in awarding the plaintiff the full amount of his attorney's fees: the court considered all twelve of the discretionary factors normally applied in determining a reasonable attorney's fee, and determined that the amount of the award sought by the plaintiff was reasonable, as the plaintiff not only prevailed on his case-in-chief but also successfully defended against three special defenses and a five count counterclaim; moreover, although the plaintiff did not prevail on all of his claims, all of his claims were interrelated. Argued October 20—officially released December 14, 2021

Pursuant to statute (§ 7-439g (a)), no retirement option of a member of the municipal employees retirement fund shall be effective until the member has retired, and, in the event the member dies prior to the effective date of commencement of benefits, any election of an option shall be deemed cancelled. Pursuant further to statute (§ 7-440 (h)), if a member of the municipal employees retirement fund who has elected a retirement option but who has not completed the age and service requirements for retirement dies, his contributions to the fund shall be paid to the beneficiary named by the member. The plaintiff, whose nephew, E, had been a municipal employee of the city of New Britain and who contributed to the municipal employees retirement fund, sought, after E's death, to have the defendant Connecti- cut State Employees Retirement Commission pay her a refund of the retirement contributions E made to the fund. E initially had submitted Form CO-931 designating his brother, J, as the beneficiary of any retire- ment benefits. E subsequently left municipal employment before attaining the retirement age of fifty-five. More than one year later, he applied for an early retirement benefit, which was administratively denied. In connection with his application for the early retirement bene- fit, E filed Form CO-1203, designating the plaintiff to receive any refund, if applicable, of his retirement contributions. Following E's death before his fifty-fifth birthday, the defendant paid a refund of his contributions to J, pursuant to E's Form CO-931. The plaintiff thereafter filed an application to receive a refund, which the defendant denied. The plaintiff subsequently sought a declaratory ruling from the defendant regarding the application and interpretation of § 7-440 (h) and requested that she be deemed E's beneficiary and receive a refund of his contributions. Following the defendant's issuance of a declaratory ruling finding that E's Form CO-1203 was invalid pursuant to § 7-439g (a), because E, who had not reached the age and service requirements for retirement, was not retired, and, thus, that the contributions properly had been refunded to J, the plaintiff appealed to the trial court, which rendered judgment dismissing the appeal. On the plaintiff's appeal to this court, held that the trial court did not err in determining that there was substantial evidence in the record to support the commission's ruling and that the ruling was supported by the forms used and by the applicable statutes: E's designation of the plaintiff on Form CO-1203 as his beneficiary was cancelled pursuant to the mandate of § 7-439g (a), thus, he did not effectively change his beneficiary from his earlier election of J; moreover, as E's election of the plaintiff as his beneficiary pursuant to Form CO- 1203 would have become effective only on his retirement, and E died before he retired, the benefits the plaintiff might have received never became effective and the designation of the plaintiff as beneficiary never became effective; furthermore, E's use of Form CO-1203 did not reflect his clear intent to change his beneficiary, and a letter to the plaintiff from the defendant's employee expressing her belief that E intended to change his beneficiary was merely the employee's opinion and not a finding as to E's intent, as the language on Form CO-1203 indicated only that E intended to designate the plaintiff as his beneficiary in connection with his election of a specific retirement option that never became effective, rather than change his beneficiary for all purposes. Argued October 7—officially released December 14, 2021

The plaintiff sought to recover damages for personal injuries that she alleg- edly sustained during a motor vehicle accident as a result of the defen- dant's negligence. Several days after the accident, the plaintiff visited a walk-in clinic, where medical personnel conducted a physical examina- tion of the plaintiff. The clinic's medical report noted that the plaintiff reported experiencing tenderness near her sternum and rib cage. Approximately one week later, the plaintiff had an initial appointment with a chiropractor, at which she presented with various other areas of pain. At trial, the defendant's counsel cross-examined the plaintiff regarding alleged inconsistencies in the descriptions of her reported symptoms at her visit to the walk-in clinic and at the chiropractor, and sought to introduce evidence of the date that the plaintiff first contacted an attorney. The court permitted the defendant's counsel to introduce into evidence a letter that indicated that the plaintiff retained counsel in the period between her visit to the walk-in clinic and her appointment at the chiropractor to explain why her description of injuries to the chiropractor lacked credibility. Following the jury's verdict in favor of the defendant, the plaintiff filed a motion to set aside the verdict, claiming that the admission of the letter, was improper. The trial court denied the motion and rendered judgment in accordance with the verdict, from which the plaintiff appealed to this court. Held: 1. The trial court did not abuse its discretion when it allowed the defendant's counsel to question the plaintiff about the timing of her first consultation with counsel after the motor vehicle accident for purposes of impeach- ment: the examination of the plaintiff by the defendant's counsel as to that issue was relevant to the defendant's claim that the plaintiff lacked credibility due to her changing descriptions of her injuries between visiting a walk-in clinic and commencing treatment with a chiropractor; moreover, expert testimony was not required to determine that there was a potential factual discrepancy for the jury to resolve concerning the plaintiff's changing descriptions of her injuries. 2. The trial court did not abuse its discretion when it permitted the defen- dant's counsel to introduce a letter that indicated that the plaintiff had retained counsel to represent her in connection with the accident under the residual exception to the hearsay rule: there was a reasonable neces- sity for the admission of the letter into evidence because the plaintiff could not recall whether she had met with counsel prior to her initial visit with the chiropractor despite effort by the defendant's counsel to refresh her recollection, and the letter was relevant to the plaintiff's credibility due to her changing descriptions of her injuries; moreover, the letter bears the requisite indicia of trustworthiness and reliability. Argued September 14–officially released December 21, 2021

The defendant appealed to this court from the judgments of the trial court rendered in accordance with the jury's verdict of guilty of the crime of assault of an elderly person in the second degree and the court's finding that the defendant had violated his probation. The defendant was involved in a verbal disagreement with the victim during which he punched the victim repeatedly, which resulted in serious injuries to the victim. The defendant raised a claim of self-defense in which he asserted that he suffered injuries when the victim attacked him first with a sock that had a rock inside it. At the time of the incident with the victim, the defendant was serving a probationary sentence as a result of a previous conviction. Prior to trial, the court denied a motion he filed to correct an illegal sentence in which he challenged the validity of the prior conviction. The defendant thereafter appealed to this court from that denial but subsequently withdrew the appeal. At the sentencing proceeding on the defendant's assault conviction, the trial court declined to consider a second motion the defendant filed to correct the sentence imposed on the prior conviction. Held: 1. This court declined to review the merits of the defendant's claim that the prior trial court abused its discretion in denying his first motion to correct an illegal sentence, the defendant having waived any claims relating to that motion when he withdrew his appeal challenging its denial; there was no merit to the defendant's assertion, which contra- vened the well established law of waiver, that his filing of the second motion to correct an illegal sentence negated the withdrawal of the prior appeal and, thus, allowed him to renew his challenge to the prior trial court's denial of his first motion to correct an illegal sentence. 2. The defendant's claim that the trial court erred in certain of its evidentiary rulings was unavailing: a. The defendant's assertion that the trial court erred in excluding relevant testimony from a police detective as to whether a sock with a rock inside it was a weapon was rendered unreviewable as a result of the defendant's failure to make an offer of proof at trial; because the defendant gave no explanation as to why the evidence was relevant, the trial court did not know the specific theory that supported the admission or nature of the proposed evidence, and, thus, this court could not determine whether the trial court's ruling was harmful, as an assessment of the defendant's claim would require a record that reflects the substance of the detective's expected testimony. b. The trial court did not abuse its discretion in determining that a physician's testimony about an incident more than six years earlier in which a police officer allegedly hit the defendant with a baton was relevant: notwithstanding the state's contention that the defendant's claim was unpreserved for appellate review because he raised a theory of relevancy on appeal that he did not argue at trial, which was that the physician was not the appropriate witness to testify because he had no knowledge of the prior incident, the defendant's attempt to assert a new argument that was premised on a different perspective of the evidence did not render his claim unpreserved, as this court was limited to assessing the relevancy of the testimony exclusively within the confines of the defendant's arguments at trial; moreover, because the defendant raised the defense of self-defense, it was relevant for the state to present evidence that would allow the jury to infer that the injuries from which he allegedly suffered were not the result of an attack by the victim but, rather, were caused when he previously was hit with the baton, which was a material issue of fact for the jury's consideration in evaluating whether the defendant's use of physical force against the victim was justified under the circumstances. c. The defendant could not prevail on his unpreserved claim that the trial court improperly struck certain of his counsel's statements during closing argument to the jury and thereby violated his sixth amendment right to the effective assistance of counsel because those statements were essential to his self-defense claim: although the record was adequate for review and the claim was of constitutional magnitude, the defendant failed to demonstrate that the alleged constitutional violation existed, as the inference counsel sought to draw, which was that the victim attacked at least one other person with the sock that had a rock in it, was unreasonable and not based on facts in evidence, as was counsel's statement that the evidence supported the inference that the defendant probably had been struck by the sock with the rock in it; moreover, even though only certain DNA evidence could possibly have supported a conclusion that the sock with a rock in it was used to hit someone other than the defendant, no facts were adduced at trial to indicate how or when such an incident could have occurred, there was no evidence to support a conclusion that the DNA on the sock was the result of an attack, and, thus, counsel's argument required expansive speculation as to facts not in evidence to permit a conclusion that the victim used the sock with the rock in it to attack a third party; accordingly, the defen- dant's right to present a closing argument was not abridged. Argued October 4—officially released December 21, 2021

The defendant H, a former employee of the plaintiff, appealed from the judgment rendered on remand awarding damages to the plaintiff for H's breach of fiduciary duty. The plaintiff had employed H as its chief revenue officer until 2013 when it fired him for cause. Thereafter, the plaintiff brought an action against H, claiming, among other things, that he breached his fiduciary duty to the plaintiff by working for G Co., a private equity investment firm, to raise capital to acquire C Co., which was involved in the same business sector as the plaintiff, while he was employed by the plaintiff, during regular business hours, and without the plaintiff's permission or knowledge. G Co.'s acquisition of C Co. closed in 2013 shortly after H's employment was terminated, at which time H was paid a $150,000 finder's fee by either G Co. or C Co., was awarded a three year consulting contract with C Co. at $50,000 annually, and was given the opportunity to purchase restricted stock of C Co. H was defaulted for failure to comply with a discovery order and the trial court granted the plaintiff's motion for judgment on the default. Following a hearing, the trial court rendered judgment for the plaintiff and awarded damages against H. H appealed to this court, which reversed the judgment only as to the award of damages against him, concluding that the award did not achieve a just result, as it failed to take into account the equities of the case, and remanded the case for a new hearing in damages. On remand, the trial court rendered judgment in favor of the plaintiff in the amount of $323,545.84, which represented H's 2013 salary, certain consulting fees paid to H by the plaintiff, the finder's fee, and one year's worth of consulting fees under the consulting contract, and H appealed to this court. Held: 1. In rendering its judgment, the trial court acted within the scope of this court's remand order by making its own independent factual findings on the basis of the entire record before it and relying on those findings to assess the equities in the case: this court did not issue a circumscribed remand order binding the trial court to the factual findings in the first action but, rather, reversed the decision as to the damages award against H and remanded the case for a new hearing in damages; moreover, given that the record on remand included additional evidence, it followed that the trial court necessarily made its own findings on the basis of the totality of the evidence in the record and, in light of those findings, considered the relevant equitable factors in determining damages. 2. The damages award on remand was improper only insofar as the trial court ordered H to disgorge $50,000 in consulting fees paid pursuant to the consulting contract: contrary to H's claim, the court's finding that H did not perform substantial work before being hired by the plaintiff in 2013 that entitled him to the $150,000 finder's fee was not clearly erroneous, as it was supported by portions of the hearing testimony and the court was free to resolve any inconsistency in the testimony by crediting only the portions that buttressed its findings; moreover, although the record did not support the court's finding that H attempted to offer into evidence at the hearing in damages numerous exhibits that the plaintiff's counsel had not seen previously, that unsupported finding did not undermine appellate confidence in the court's fact-finding pro- cess and, accordingly, it was harmless; furthermore, although the court improperly ordered disgorgement of $50,000 of the $150,000 consulting fees, as it was prohibited by this court's previous decision from ordering disgorgement of amounts earned by H outside of H's period of employ- ment with the plaintiff and it assumed that H had earned the consulting fees for services performed after his employment with the plaintiff had ended, the trial court did not otherwise abuse its discretion in awarding damages but, rather, properly balanced the equities and utilized the equitable remedies of forfeiture and disgorgement, as it properly consid- ered the significant value of H's services to the plaintiff as an employee and balanced that against its other factual findings, the court was not precluded from finding that H acted wilfully and engaged in disloyal acts throughout his employment or from relying on such findings to issue the damages award, as they were supported by the record and fit within the guidance set forth in Wall Systems, Inc. v. Pompa (324 Conn. 718), there was no suggestion in the court's decision that it had used H's discovery violations to supplant the plaintiff's burden to demonstrate damages, and H's assertion that the plaintiff was unjustly enriched by the award was unavailing. Argued February 2—officially released December 28, 2021

Convicted of the crime of risk of injury to a child as a result of certain physical contact with his minor daughter, the defendant appealed to this court, claiming, inter alia, that the trial court violated his right to be tried before an impartial jury when it prohibited his counsel from asking prospective jurors during voir dire to express their opinions with respect to parents who kiss their children on the lips. When the state indicated it would seek to introduce into evidence a photograph of the defendant kissing the victim's half sister on the lips, defense counsel objected. The trial court first precluded defense counsel from asking prospective jurors about kissing on the lips because it was too specific to the facts of the case and limited defense counsel to asking prospective jurors about whether parents can have different methods of showing physical affection to their children. Thereafter, the court ruled the photo- graph inadmissible because it was prejudicial to the defendant. The defendant also had been charged with two counts of sexual assault in the first degree in connection with the incident with the victim. Although the jury initially had been unable to reach a unanimous verdict as to all three charges, the trial court delivered a ''Chip Smith'' instruction urging the jury to reach a verdict, after which it returned its verdict, which included a finding of not guilty as to the sexual assault charges. Held: 1. The trial court did not abuse its discretion when it prohibited defense counsel from asking prospective jurors to express their opinions with respect to parents who kiss their children on the lips: contrary to the defendant's assertion that the court improperly limited the scope of his voir dire because that issue was a central issue in the case and many people view it as inappropriate and offensive, the court's extremely narrow ruling was limited only to that question, it prevented counsel from improperly using voir dire to ascertain prospective jurors' opinions about evidence that would be presented at trial or implanting in their minds an opinion about that evidence, and, by permitting inquiry about the general topic of physical displays of affection, the court provided counsel wide latitude to determine whether prospective jurors had preju- dices against parents kissing their children on the lips, and properly struck a balance between the competing considerations of protecting a party's inviolate right to ask questions to uncover prejudice and avoiding inquiries that touch on facts before the jury; moreover, after the court excluded the photograph from evidence, there was no photographic evidence of the defendant kissing any child on the lips, the subject of the defendant's kissing the victim on the lips did not form the factual basis of any of the offenses with which he was charged, and the prosecu- tor did not rely on the evidence of kissing in her closing argument to the jury; furthermore, the defendant failed to demonstrate that the court's ruling resulted in harmful prejudice, as the evidence of kissing played only a slight role in the trial and was not inherently prejudicial in nature, and the jury's split verdict, in which it found the defendant not guilty of the sexual assault charges, supported the conclusion that the court's limitation on voir dire did not result in a jury that was unable to carefully and fairly consider each of the charges and the evidence related thereto. 2. The defendant could not prevail on his claim that the trial court abused its discretion by admitting into evidence a videotaped forensic interview of the victim: rather than summarily rejecting the defendant's assertion that the video was unduly prejudicial and cumulative of the victim's testimony at trial, as the defendant claimed, the broad language of the court's ruling suggested that the court considered and rejected the grounds of objection the defendant raised, and the court explicitly stated that the video fell within the medical diagnosis and treatment exception to the rule against hearsay (§ 8-3 (5)), with which the defendant agreed; moreover, the video was relevant and highly probative with respect to the defendant's conduct with the victim, the video was not admitted as constancy of accusation evidence, as the defendant contended, and it did not bolster the victim's credibility, as the interview was conducted by a clinical social worker, and the video did not contain the opinions of expert witnesses or statements of third parties; furthermore, the video was not unduly prejudicial, as it did not improperly emphasize the victim's testimony by permitting her to testify twice, it did not generate sympathy for her, as any expressions of empathy by the interviewer reflected her effort to build a rapport with the victim, and, although the victim's comments in the video were not identical to her trial testimony, the different language she used in the video was not so different in nature that it would likely engender strong feelings of sympathy over that which may have been engendered by her testimony at trial. 3. The defendant failed to establish that the trial court violated his rights to due process, to a fair and impartial trial, and to be convicted by means of a unanimous verdict when it declined to use language in his written request for instructions to urge the deadlocked jury to reach a verdict and, instead used model instructions from the Judicial Branch website: the defendant was not entitled to the instruction he proposed, which condoned a hung jury, nothing concerning the context or circum- stances in which the court delivered the model instructions led to the conclusion that the instructions were coercive, as the fact that the jury had engaged in deliberations for three days and requested the playback of certain testimony and evidence prior to sending the court a note stating that it was deadlocked merely reflected, at most, that the jury was fulfilling its duty of carefully considering the evidence; moreover, the jurors' note and stated belief in that note that additional deliberation time would not be fruitful did not make the court's instructions coercive or give the unwarranted impression that a verdict was required, as the note did not refer to hostility among jurors or indicate they had not followed their oaths or would not continue to follow their oaths after additional instruction from the court. 4. This court declined to exercise its supervisory authority over the adminis- tration of justice to require trial courts to instruct deadlocked juries that they need not reach a verdict and that jurors have the right to disagree with respect to the proper verdict; because the Supreme Court has explicitly addressed the issue of what instructions are proper when a jury is deadlocked, it would be inappropriate for this court to overrule, reevaluate, or reexamine the propriety of the instructions. Argued February 2—officially released December 28, 2021

In 2011, the plaintiff, O Co., sought to foreclose a mortgage on certain real property owned by the defendants, and thereafter filed a motion to substitute N Co. as the plaintiff. In 2017, N Co. filed a motion for summary judgment as to liability only as to its amended complaint. Soon thereafter, N Co. assigned the mortgage to W Co., and filed a motion to substitute W Co. as the plaintiff, which the court granted. For several months, the parties engaged in discovery and litigated discovery disputes, including W Co.'s inability to locate and produce loan payment history records for a period of more than two years. While discovery objections were still outstanding, W Co. reclaimed the motion for summary judgment in 2018. Subsequently, the trial court ordered W Co. to provide additional discovery regarding its search efforts to locate the missing loan payment records. After the completion of discovery, the defendants filed a request to amend their answer and special defenses, which contained seven special defenses to address the incomplete payment records and related issues regarding changes in the amount of escrow payments. The defen- dants also submitted a caseflow request for a continuance to respond to W Co.'s motion for summary judgment until after the court ruled on their request to amend, arguing, in relevant part, that the amended special defenses, if granted, would have direct significance on the motion for summary judgment, and, therefore, should be considered first. The court, however, denied the requested continuance. W Co. filed an objec- tion to the defendants' request to amend, claiming that the defendants' counsel sought to delay the case, which the court sustained, and there- after denied the defendants' request to amend without explanation or analysis. In 2019, W Co. filed a reply to the defendants' original special defenses and a certificate of closed pleadings. The court granted W Co.'s motion for summary judgment, finding that no genuine issues of material fact existed as to liability on the note and mortgage, but pro- vided no legal analysis. Thereafter, the court rendered a judgment of strict foreclosure in favor of W Co., from which the defendants appealed to this court. Held that the trial court's denial of the defendants' request to amend their answer and special defenses constituted an abuse of discretion: the court failed to provide a sound reason for denying the defendants' request as the granting of the amendment would not have unduly delayed trial or unfairly prejudiced W Co. in light of the facts that the proposed amendment was filed prior to W Co.'s certificate of closed pleadings, the motion for summary judgment had languished on the docket for a significant period of time without being claimed for a hearing by W Co., and no trial date had been scheduled; moreover, it was appropriate procedurally and as a matter of legal strategy for the defendants to wait until discovery was completed as the missing informa- tion could have been relevant to the defendants' theory of defense where such discovery related to the amount of the debt owed and the issue of default; furthermore, although the case had been pending for a signifi- cant period of time, some of that delay was attributable to W Co. or to its predecessors in interest and nothing in the record supported a finding that the defendants engaged in unreasonable or purely dilatory behavior in defending the foreclosure action; additionally, the defendants sought to have the trial court articulate the factual and/or legal basis for its decision to disallow the amendment but were thwarted in their efforts by the unavailability of the trial judge; accordingly, the trial court's error in failing to allow the defendants to amend their answer and special defenses required the reversal of the court's granting of the motion for summary judgment as to liability and the judgment of strict foreclosure because such judgment was rendered in part on the summary determina- tion of liability. Argued September 16—officially released December 28, 2021

The defendant employer appealed to this court from the decision of the Compensation Review Board, which affirmed the decision of the Work- ers' Compensation Commissioner finding that the plaintiff was employed by the defendant within the meaning of the Workers' Compensation Act (act) (§ 31-275 et seq.) and granting the plaintiff's motion to preclude the defendant from contesting the compensability of his injury pursuant to statute (§ 31-294c (b)). The defendant received the plaintiff's notice of claim for compensation but failed to file a form 43 within twenty- eight days contesting liability for the plaintiff's injury. On appeal, the defendant claimed, inter alia, that filing a form 43 would have violated the applicable statute (§ 31-290c), as she had knowledge that the plain- tiff's claim for compensation was fraudulent. Held that the defendant could not prevail on her challenges to the fact-finding and credibility determinations made by the commissioner: evidence in the record sup- ported the commissioner's express findings that the alleged injury suf- fered by the plaintiff, if proven, would constitute a compensable injury under the act and that, at the time of the alleged injury, the plaintiff was an employee of the defendant; moreover, the defendant could not prevail on her claim that her filing of a form 43 would have constituted criminal conduct, as she provided no legal support for the claim, and the purpose of filing the form, to contest the defendant's liability for the plaintiff's injury, would not fall within the language of § 31-290c that criminalizes conduct by a claimant for benefits under the act. Submitted on briefs November 10, 2021—officially released December 28, 2021

Convicted, following a jury trial, of the crime of larceny in the second degree, the defendant appealed to this court. The defendant, a resident of a condominium complex in Waterbury, became the president of the board of directors of the condominium association. P, the treasurer of the board of directors, became concerned about the association's finances and asked the defendant for financial information, which he failed to provide. P examined the bank records of the association and noticed that checks had been written from the association's bank account to the defendant and deposited in the defendant's personal bank account. The defendant explained that he made withdrawals from his personal bank account for legitimate purchases for the condominium complex, but admitted that he also used the funds for personal items. The defen- dant's sentence included probation with special conditions, including the payment of restitution. On the defendant's appeal to this court, held: 1. The defendant could not prevail on his claim that the trial court committed plain error when it required him, as a special condition of probation, to pay restitution, which was based on his claim that the court did not first consider the factors enumerated in the applicable statute (§ 53a- 28 (c)): the court did consider the factors in § 53a-28 (c) (3), as it stated in its second articulation that the defendant had an earning capacity that would enable him to make restitution, and the court noted that, at sentencing, the defendant stated that he was able to work and that he was financially supported by his mother, and the court also considered the rehabilitative effect on the defendant of paying restitution and the impact on the victims. 2. The trial court did not abuse its discretion in denying the defendant's motion for an extension of time within which to begin making restitution payments: the court granted the defendant an extension of time to begin making restitution payments to six months after the original start date, and, although the defendant claimed that he was not provided with sufficient time to generate income, the court found that the defendant had a responsibility to find alternative ways to earn funds to make the restitution payments. 3. The defendant could not prevail on his unpreserved constitutional claim that the trial court violated his due process right to a fair and impartial trial when it questioned him and two of the state's witnesses, H and P: the court's questioning of H, a detective, was not inappropriate because the court stated that its questions were intended to clarify H's testimony, and the record appeared consistent with this purpose; moreover, the court properly intervened to clarify the self-represented defendant's testimony, particularly in light of his inclusion of irrelevant material in his testimony and his disruptive conduct, the fact that the court's ques- tions may have drawn attention to the strength of the state's case did not render those questions improper, the court's questions did not suggest anything about the credibility of any witnesses or advocate in favor of a particular verdict, and the court's questions did not prejudice the defendant because the elicited facts were not truly in dispute; further- more, the court did not act as an advocate for the state when it questioned P regarding the defendant's identity, as the court's questions, viewed in the context of the entire trial, did not prejudice the defendant or improp- erly influence the outcome of the proceedings. Argued October 12, 2021—officially released January 4, 2022

The plaintiff housing authority sought, by way of summary process, to regain possession of certain premises leased to the defendant tenant. The plaintiff served on the defendant a notice to quit possession of the premises alleging that the defendant's conduct constituted a serious nuisance under the applicable statute (§ 47a-15 (B) and (C)). Thereafter, the plaintiff commenced this summary process action by serving on the defendant a summons and complaint. The defendant filed an answer and special defenses alleging, among other things, that he was entitled to an accommodation because of his psychiatric disability. Subsequently, the defendant filed a motion to dismiss for lack of subject matter jurisdic- tion because the plaintiff had not issued a pretermination notice. The trial court rendered judgment of possession in favor of the plaintiff on the basis of the defendant's violation of § 47a-15 (C) and denied the defendant's motion to dismiss, from which the defendant appealed to this court. Held: 1. The trial court had subject matter jurisdiction over this summary process action: the notice to quit issued by the plaintiff, which complied with statutory requirements (§ 47a-23), provided the court with jurisdiction over the plaintiff's claims; moreover, given that the plaintiff alleged that the defendant's conduct constituted a serious nuisance, the plain and unambiguous language of § 47a-15 made clear that the plaintiff was not required to serve a pretermination notice on the defendant, and, therefore, the lack thereof did not deprive the court of subject matter jurisdiction; furthermore, the court did not need to reach the merits of whether the defendant's conduct did, in fact, constitute a serious nui- sance in order to exercise jurisdiction over this action. 2. The defendant could not prevail on his claim that the court improperly rendered judgment for the plaintiff because his acts or omissions did not constitute a serious nuisance within the meaning of § 47a-15 (C): although the defendant claimed that the court's decision relied on a subordinate, erroneous finding that the defendant had harassed another resident, the court did not make that finding and, instead, made clear that its decision in favor of the plaintiff was based on the condition of the defendant's apartment; moreover, the record supported the court's conclusion that the condition of the defendant's apartment constituted a serious nuisance because it presented an immediate and serious danger to the safety of the other tenants. 3. The defendant's claims that the trial court made clearly erroneous factual findings regarding whether the plaintiff reasonably accommodated him and that the court's findings were the result of implicit bias were not reviewable, the defendant having failed to brief the claims adequately: the defendant's briefs before this court were completely devoid of any legal analysis, as his argument mostly restated portions of the record, without providing any context or explanation of how those facts sup- ported or related to his legal claims; moreover, the defendant failed to explain why either of the two authorities that he cited, an Iowa criminal case and an American Bar Association publication, were instructive in light of the facts of this case, or how the specific findings he challenged were relevant to the court's judgment. Argued September 21, 2021—officially released January 4, 2022

The defendant appealed to this court from the trial court's order awarding, inter alia, $15,000 in attorney's fees to the plaintiff. Following the dissolu- tion of the parties' marriage, the trial court granted the plaintiff's motion to open the judgment of dissolution as to financial matters only on the ground of mutual mistake in connection with the defendant's failure to disclose information related to a certain disability policy. Thereafter, the plaintiff filed a motion for pendente lite alimony and attorney's fees. During the hearing on the motion, the plaintiff submitted a financial affidavit that listed liabilities totaling $91,094, including $47,105 in out- standing loans from family members. In addition, evidence was pre- sented as to whether the funds given to the plaintiff by her family members were loans or gifts and as to the plaintiff's access to nearly $30,000 in a bank account jointly held with her son. The trial court concluded that an award of $15,000 in attorney's fees to the plaintiff was warranted because, in light of her claimed debts, the plaintiff lacked ample liquid funds to pay for an attorney. In reaching its decision, the court raised, but did not resolve, the question of whether the funds from the plaintiff's family members constituted loans or gifts. Held: 1. The trial court abused its discretion in awarding the plaintiff attorney's fees; given the evidence before it, it was not reasonable for that court to conclude that the plaintiff lacked ample liquid funds to pay for her attorney's fees after it expressly declined to determine whether the funds that the plaintiff received from family members were, in fact, loans. 2. The trial court, in making its award of attorney's fees, expressly relied on the clearly erroneous factual finding that the plaintiff had access to only $3000 in bank accounts, which undermined this court's confidence in that court's fact-finding process and, therefore, could not be deemed harmless error; although the plaintiff testified that she did not wish to withdraw funds from the account that she held jointly with her son, that did not negate the fact that she expressly testified that she had access to the nearly $30,000 in that account. Argued November 15, 2021—officially released January 4, 2022

The plaintiff appealed from the judgment of the trial court granting the motion to dismiss filed by the defendants, the state and the Commis- sioner of Energy and Environmental Protection. The plaintiff owned and operated more than five gasoline facilities that had underground storage tanks used for petroleum products located on the premises and, accordingly, was a responsible party and a mid-size station applicant under the Act Concerning Underground Storage Tanks (§ 22a-449a et seq.), which established a clean-up program to reimburse responsible parties for costs incurred in remediating leaking underground storage tanks. The plaintiff remediated some of its properties pursuant to the act and submitted several applications to the Department of Energy and Environmental Protection, seeking reimbursement for the costs it incurred. At the time the plaintiff commenced this action, some of its applications had been approved and paid, at least one had been approved in 2009 but remained unpaid, and the commissioner had failed to act on certain other applications. The plaintiff claimed that the commis- sioner had unduly and unreasonably delayed the processing and payment of its applications for reimbursement under the program and sought a writ of mandamus ordering the commissioner to pay approved claims and to adjudicate its pending claims. It also sought monetary damages for the commissioner's failure to reimburse the plaintiff and to adminis- ter the program within a reasonably timely manner and further claimed that the failure to pay any approved applications and any pending appli- cations that should have been approved violated the takings clause of article first, § 11, of the Connecticut constitution. The defendants moved to dismiss the action for lack of subject matter jurisdiction on the ground that the plaintiff's claims were barred by sovereign immunity. Held: 1. The trial court erred by dismissing the plaintiff's request for a writ of mandamus because such a request was not barred by sovereign immu- nity: contrary to the defendants' claim, to the extent that there remained applications for which the plaintiff had requested a hearing before the commissioner, the plaintiff's mandamus claim was not moot because those applications had not been finally adjudicated for purposes of filing an appeal to the Superior Court under the applicable statute (§ 22a- 449g) and the trial court could grant the plaintiff practical relief by ordering the defendants to hold hearings in accordance with the act (§ 22a-449f (h)); moreover, this court determined that, in accordance with our Supreme Court's decisions in C. R. Klewin Northeast, LLC v. Fleming (284 Conn. 250) and Gold v. Rowland (296 Conn. 186), which required claims for injunctive relief against the state to satisfy one of the exceptions to the doctrine of sovereign immunity, there was no categorical exception to sovereign immunity for applications for writs of mandamus; furthermore, the trial court improperly determined that the plaintiff's requests for mandamus relief had to rise and fall together and, therefore, improperly dismissed the portion of the first count of the complaint seeking a writ of mandamus to compel the defendants to act on its pending applications, as established precedent confirmed that a court may dismiss a portion of a count of a complaint on the basis of sovereign immunity, our Supreme Court's decision in Miller v. Egan (265 Conn. 301) determined that sovereign immunity will not bar actions seeking declaratory or injunctive relief when the process of statutory interpretation establishes that the state defendants acted beyond their statutory authority, and the allegations in the plaintiff's complaint averred that the defendants' failure to act on its pending applications constituted actions in excess of the defendants' statutory authority; additionally, the plaintiff's mandamus claim was not tanta- mount to a claim for money damages, as the plaintiff was not seeking compensatory damages for losses it suffered but, rather, sought to com- pel the defendants to distribute funds to which the act entitled it, and the defendants' failure to pay the plaintiff's approved claim could consti- tute an act in excess of statutory authority because the act created a mandatory duty to pay approved applications, regardless of the fact that the statute did not specify a time period within which the payment must be made. 2. The trial court properly determined that the state had not waived its sovereign immunity under § 22a-449g and, accordingly, properly dis- missed the counts of the plaintiff's complaint that sought monetary damages: the statutory authorization to appeal to the Superior Court from an adverse decision by the commissioner under § 22a-449g did not authorize an action for damages against the state; moreover, the plain language of § 22a-449g, which does not refer to a general cause of action against the state or to the defense of sovereign immunity, did not support the plaintiff's claim of implied waiver of sovereign immunity. 3. The trial court properly determined that the plaintiff had not alleged a property interest sufficient to support a finding of an unconstitutional taking under article first, § 11, of the state constitution: the plaintiff did not possess any of the incidents of ownership identified in A. Gallo & Co. v. Commissioner of Environmental Protection (309 Conn. 810), as it never possessed the money it claimed it was owed, and, therefore, could not use the money, earn income from it, or transfer it to another party; moreover, because the plaintiff had no control over the disputed funds, its interest in the money was not a vested property interest but, rather, a contingent or expectant interest. Argued May 12, 2021—officially released January 11, 2022

Convicted of the crimes of murder and carrying a pistol without a permit as a result of the shooting death of the victim, the defendant appealed, claiming, inter alia, that he was deprived of his right to present a defense when the trial court improperly instructed the jury about the adequacy of the police investigation. The defendant's theory of defense was that the police conducted an inadequate investigation during which, among other things, they failed to investigate leads, did not attempt to obtain DNA profiles or request DNA testing of certain evidence, and failed to treat four individuals as suspects and take DNA samples from them, even though they were in the vicinity of the shooting at about the time it occurred. The defendant filed a request to charge as to the inadequacy of the police investigation that differed from the model jury instruction on the Judicial Branch website at that time. After conducting a charging conference with counsel, the trial court used the model instruction rather than the defendant's requested charge. The defendant claimed that the court's instructions effectively told the jurors to disregard the adequacy of the police investigation as it related to the strength of the state's case and to disregard his theory of the case. During the pendency of the defendant's appeal, our Supreme Court issued its decision in State v. Gomes (337 Conn. 826), in which it held that the model jury instruction improperly failed to inform the jury of a defendant's right to present evidence of investigative inadequacy and the jury's right to consider such deficiencies in evaluating whether the state proved its case beyond a reasonable doubt. Held: 1. The trial court erred when it instructed the jury regarding the adequacy of the police investigation, as it was reasonably possible that the instruc- tions misled the jury to believe it could not consider the defendant's arguments as to that issue: a. Contrary to the state's assertion that the defendant's claim was unpre- served because it was substantially different from the claim he raised at trial, his written request to charge sufficiently covered the matter, the defendant requested language that was different from and more comprehensive than that contained in the model jury charge on the Judicial Branch website, and his requested charge omitted language that the court in Gomes found presented a significant risk of misleading the jury. b. The defendant did not waive his preserved claim of instructional error: the defendant did not withdraw his request for a jury instruction on the inadequacy of the police investigation, and nothing in the record of the charging conference demonstrated an intention by the defendant to abandon his request; moreover, a reasonable reading of defense counsel's statement during the charging conference that the court included in its proposed charge two of his instructional requests was that counsel was mistaken as to the content of the court's proposed charge and wrongly believed the court included his proposed investigative inadequacy charge; furthermore, a reasonable reading of the prosecutor's comments during the charging conference was that he did not believe the defen- dant's request had been effectively withdrawn. c. The trial court's use of the model jury instruction on investigative inadequacy was harmful, and, thus, the defendant was entitled to a new trial: the state's case was not strong, as its primary evidence was from jailhouse informants who testified in exchange for beneficial treatment in their pending criminal matters, the physical evidence focused on a hat that was found in bushes near the crime scene, which contained the DNA of two other individuals in addition to that of the defendant, there was no evidence outside of the jailhouse informant testimony that the assailant wore a hat, and the gun allegedly used was problematic in that no forensic evidence linked it to the shooting and no casings were found at the scene; moreover, there were no eyewitnesses to the shooting, and the defendant did not appear on any of the surveillance videos obtained by the police. 2. The trial court did not abuse its discretion by admitting certain uncharged misconduct evidence pertaining to two shootings that occurred subse- quent to the victim's death: the probative value of the uncharged miscon- duct evidence was high, as the subsequent shootings connected the defendant with the gun allegedly used in the homicide of the victim, the defendant's guilty pleas as to the subsequent shootings and a state- ment he made to the police that he liked to play with guns were probative of his means and opportunity to commit the charged crimes, and a spent shell casing in a handgun the police recovered at the scene of one of the subsequent shootings, and testimony related thereto, were probative as to the lack of shell casings found at the scene of the victim's homicide; moreover, it was unlikely that the facts of the two subsequent shootings, which were significantly less severe than the charged crimes in that there were no injuries, unduly aroused the emotions of the jurors; fur- thermore, the uncharged misconduct evidence did not consume an undue amount of time or create an unduly distracting side issue, as the court limited the state to a narrow presentation of the basic facts of the subsequent shootings, the evidence was introduced through the testimony of multiple witnesses interspersed throughout three of the nine days of trial, a limited amount of the evidence was documentary, and the prosecutor did not belabor his examination of the witnesses. Argued October 14, 2021—officially released January 11, 2022

The petitioner, who had been convicted of murder in connection with the death of his wife, sought a writ of habeas corpus, claiming that he received ineffective assistance from his criminal trial counsel. At the criminal trial, the petitioner's trial counsel had acknowledged that the petitioner killed the victim and raised the defenses of extreme emotional disturbance and intoxication. The habeas court rendered judgment deny- ing the habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Held: 1. The habeas court properly concluded that the petitioner's trial counsel did not render ineffective assistance by declining to consult with and present the testimony of a crime scene reconstruction expert, the peti- tioner having failed to demonstrate deficient performance: although the petitioner argued that a crime scene reconstruction expert could have reviewed conclusions made by S, a detective who testified about the crime scene, and could have determined whether the evidence at the crime scene supported the defense theories, the decision of the petition- er's trial counsel not to consult with a crime scene reconstruction expert was reasonable given that S's testimony did not undermine the petition- er's theory of the case and because, through their cross-examination of S and during closing arguments, they were able to highlight the potential concerns regarding the crime scene and argue that the haphazard nature of the petitioner's alleged efforts to clean up the crime scene supported the theories of defense regarding the petitioner's mental state. 2. The habeas court properly concluded that the petitioner's trial counsel did not render ineffective assistance by declining to consult with and present the testimony of a forensic toxicologist, the petitioner having failed to demonstrate deficient performance: although the petitioner argued that a forensic toxicologist could have testified about the effects of his prescription medications to support his intoxication defense, apart from the evidence about his alcohol consumption, there was no evidence in the record regarding whether the petitioner took any of his prescrip- tion medications prior to committing the homicide. 3. The petitioner could not prevail on his claim that his trial counsel provided ineffective assistance by failing to adequately object to or otherwise seek to preclude the testimony of B, the petitioner's daughter, regarding his prior misconduct: because the record confirmed that there was ample evidence that the petitioner killed the victim, a fact admitted by the petitioner during the criminal and habeas trials, and that the jury considered, and rejected, the petitioner's extreme emotional disturbance and intoxication defenses, the petitioner could not demonstrate that there was a reasonable probability that the outcome of his criminal trial would have been different in the absence of his counsel's allegedly deficient performance; moreover, in the petitioner's direct appeal, this court concluded that the trial court minimized the potential prejudice of the prior misconduct evidence by giving the jury detailed limiting instructions as to the role that evidence was to play in its deliberations, which further supported this court's conclusion in the present appeal that the petitioner failed to demonstrate the prejudice necessary to prevail on his ineffective assistance of counsel claim. Argued September 21, 2021—officially released January 11, 2022

The plaintiff sought to recover damages from the defendants, including V Co., for, inter alia, conversion, relating to the repair of a jet ski. The trial court rendered judgment for the defendants. Thereafter, V Co. filed a postjudgment motion for attorney's fees, alleging that the plaintiff brought the claim against it in bad faith. The plaintiff objected to that motion. The court ordered that the plaintiff's counsel, L, provide any evidence found in discovery to explain why the plaintiff believed he had a colorable claim against V Co. The plaintiff filed a response to that order. Subsequently, and without scheduling a hearing, the court granted V Co.'s motion for attorney's fees, stating that the plaintiff had provided no evidence of a colorable claim. Thereafter, the court granted the plaintiff's motion for clarification of its order granting attorney's fees and specified that the order was against both the plaintiff and L, and the plaintiff and L appealed to this court. Held: 1. This court dismissed the appeal in part to the extent it was brought by L in connection with the award of attorney's fees to V Co.; as L was not a party to the underlying action, the court lacked subject matter jurisdiction over his portion of the appeal. 2. The trial court erred in granting V Co.'s motion for attorney's fees; the plaintiff was denied the opportunity to be heard on the motion, as the court never held a hearing on the issue of attorney's fees. Argued October 14, 2021—officially released January 11, 2022

The plaintiff sought to foreclose a mortgage on certain real property owned by the defendant, which was defaulted for failure to appear. Thereafter, the trial court granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon. The plaintiff sent notice of the judgment to the defendant, and certified to the court that notice had been mailed, pursuant to the applicable rule of practice (§ 17-22) and the court's uniform foreclosure standing orders. The defendant failed to redeem the property on or before its law day and title to the property vested in the plaintiff. More than one year after the passage of the law day, the defendant filed a motion to open the judgment of strict foreclosure. The court denied the defendant's motion to open and its subsequent motion to reargue/reconsider that ruling, and the defendant appealed to this court. Held that the trial court did not abuse its discretion in denying the defendant's motion to open the judgment of strict foreclosure and its motion to reargue/reconsider that ruling: the particularized factual allegations in this case did not present the rare and extreme circumstances that would justify granting the defendant the extraordinary equitable relief it sought, namely, opening the judgment of strict foreclosure more than one year after title had vested absolutely in the plaintiff, in contravention of the applicable statute (§ 49-15), given that the defendant raised no argument that it improperly had been defaulted for failure to appear or that the court lacked personal jurisdic- tion over it due to improper service, the record disclosed no nefarious conduct on the part of the plaintiff, and title had already passed to a nonparty purchaser; moreover, although the defendant asserted that it never received the notices sent by the plaintiff, that failure was not fairly attributable to the plaintiff but, instead, to the defendant's apparent failure to update its mailing address on file with the Secretary of the State; furthermore, because there was no error in the court's denial of the defendant's motion to open, the court did not abuse its discretion in denying the defendant's motion to reargue/reconsider that ruling. Submitted on briefs September 13, 2021—officially released January 11, 2022

Convicted of the crimes of larceny in the first degree, attempt to commit larceny in the first degree, larceny in the second degree and conspiracy to commit larceny in the first degree in connection with certain financial transactions involving an elderly victim, the defendant appealed to this court. The defendant was hired as an in-home aide for the victim, and increasingly involved herself in the victim's life. A few months after the defendant was hired, the pastor of the defendant's church was granted power of attorney over the victim, and from that point forward the victim's banking activity began to diverge from several long-standing patterns. Increasing sums of money were being withdrawn from the victim's bank accounts and used by the defendant to pay for her various personal expenses. Following a trial, the jury returned a verdict of guilty of all four counts against the defendant. Held: 1. The defendant could not prevail on her claim that the trial court improperly instructed the jury as to the wrongfulness element of the offense of larceny, the charge to the jury having adequately conveyed the appro- priate levels of intent for both taking and retaining property in accor- dance with State v. Saez (115 Conn. App. 295), which outlined the state's obligation to show that the defendant acted with the subjective desire or knowledge that her actions constituted stealing: the court's charge to the jury, when considered as a whole and in light of the penal code's definition of larceny, was sufficient to adequately guide the jury; more- over, the language in the court's charge linking the requirement that the state must prove the defendant intended to permanently deprive the owner of his property with the requirement that the state must prove that the defendant took the property with an unlawful purpose adequately conveyed the requirement that the defendant must have intended to take the property wrongfully, such that the jury properly was apprised of the elements of larceny and the bar that the state had to meet with respect to the specific intent requirement in order to convict the defendant. 2. The defendant could not prevail on her claim that the jury instructions provided by the trial court granted the jury impermissibly broad latitude in considering the possibility of the victim's mental incapacity, that contention not being supported by the plain language of the court's instructions: the jury was informed that, even if it concluded that the victim was mentally incapacitated in any way, the instructions did not mandate a conclusion that the victim could not and did not consent to the defendant's taking of the property, and, by instructing the jury that it ''may'' determine that the victim's mental incapacity prevented him from consenting to the taking of his property, the charge permitted the jury to exercise its discretion and consider whether the evidence before it supported such a finding; moreover, the jury charge clarified that an owner's inability to consent must be paired with the defendant's awareness of that inability in order to satisfy the wrongfulness require- ment of larceny, and the charge contained sufficient safeguards against the jurors improperly drawing conclusions as to the wrongfulness of the defendant's conduct. Argued September 13, 2021—officially released January 11, 2022