Volume 214 — Connecticut Appellate Reports

The plaintiff, an inmate in a state correctional institution, sought to recover damages from the defendant M, an employee of the Department of Correction, in his individual capacity, pursuant to federal law (42 U.S.C. § 1983), for the alleged violation of his federal constitutional rights in connection with a motor vehicle accident during which he sustained injuries. The plaintiff, who was being transported to and from a medical appointment in a vehicle operated by M, was placed in full restraints in the rear seat of the vehicle, in which there was not enough room for the plaintiff to sit upright. The plaintiff informed M that the vehicle was too small, but M said that he could not obtain a larger vehicle. The plaintiff did not ask M to secure his seat belt, and M did not check to see if the seat belt was fastened. On the return trip, M drove erratically and in excess of the speed limit, ultimately colliding with another vehicle. The plaintiff alleged that M had violated his civil rights under the eighth amendment to the United States constitution, claiming that M's failure to abide by reasonable safety standards while transporting him gave rise to a claim of deliberate indifference. The trial court denied M's motion for summary judgment, finding that there was a disputed question of fact as to whether M knew and was indifferent to an excessive risk to the plaintiff's health and safety. On M's appeal to this court from the denial of his motion for summary judgment, held that the trial court erred in holding that M was not entitled to qualified immunity, as the allegations in the plaintiff's complaint and the record before the court did not give rise to a claim for deliberate indifference because no federal precedent clearly established that M's conduct violated the eighth amendment constitutional right against cruel and unusual punishment: the Court of Appeals for the Second Circuit, in Jabbar v. Fischer (683 F.3d 54), held that the failure of prison officials to provide inmates with seat belts does not, without more, violate the eighth amendment, and other federal courts have held the same and largely have held that dangerous road conditions, distracted driving and speeding while trans- porting inmates do not give rise to a claim for deliberate indifference; moreover, in the few instances in which a federal court has found that a constitutional violation occurred during the transportation of an inmate, the plaintiff typically has alleged that he was not seat belted, the defendant purposefully drove in a reckless manner and the plaintiff asked the defendant to fasten his seat belt or to drive more safely but the defendant ignored the requests, and, in the present case, the plaintiff neither alleged nor presented evidence that he requested to be seat belted, requested that M drive more safely or requested that M obtain a larger vehicle for safety rather than for comfort; furthermore, M's conduct was not severe enough to constitute an obvious constitutional violation in the absence of clearly established law, as the present case involved a motor vehicle accident with circumstances under which no federal court has found an eighth amendment violation. Argued March 9—officially released July 26, 2022

The defendant acquittee, who previously had been found not guilty of certain crimes by reason of mental disease or defect, appealed to this court from the trial court's denial of his motion to dismiss the state's petition, filed pursuant to statute (§ 17a-593), to extend his commitment to the jurisdiction of the Psychiatric Security Review Board. On appeal, the acquittee claimed that this court had subject matter jurisdiction over his appeal because the trial court's order denying his motion satisfied at least one prong of the finality test set forth in State v. Curcio (191 Conn. 27). Held that the trial court's order denying the acquittee's motion to dismiss the state's petition did not satisfy either prong of Curcio and was not a final judgment for purposes of appeal: the order did not terminate a separate and distinct proceeding for purposes of the first prong of Curcio as the order involved a constitutional challenge that was inextricably intertwined with the adjudication of the petition and, as a result, the proceedings concerning that order were not wholly severable from the merits of the state's petition; moreover, the order did not result in the irreparable loss of a claimed right if immediate appellate review was not afforded, required to satisfy the second prong of Curcio, as the petition remained pending before the trial court, the acquittee's claimed right to discharge from the board's jurisdiction on the basis of his right to equal protection pursuant to the United States constitution was still intact and further proceedings could still affect the acquittee's claimed right; accordingly, this court lacked subject matter jurisdiction over the appeal. Argued December 7, 2021—officially released July 26, 2022

The plaintiff escrow agent sought, by way of an action for interpleader, a determination of the rights to certain funds that the defendant purchaser had placed in escrow with the plaintiff as a deposit pursuant to a the purchase and sale agreement made in 2018 for certain real property owned by the defendant seller. Prior to closing, the purchaser learned that the seller had entered into an agreement (neighbor agreement) several years prior with the owners of neighboring properties, which included a provision for an easement on the seller's property in order to connect the neighbors' properties to the town's sanitary sewer system via a sewer line to be installed across the seller's property. The purchase and sale agreement did not reference the neighbor agreement or the potential sewer easement and further represented in § 16 (m) that the seller was not aware of any claims for rights of passage, easement, or other property rights to the property. Because of the neighbor agreement, the purchaser's title insurance company refused to issue a title policy. As a result thereof, the purchaser invoked § 9 (b) of the purchase and sale agreement relating to encumbrances of title and the seller's obligation to cure such claimed encumbrance or other defect in marketable title, specifically the sewer easement, and thereafter terminated the contract when the seller failed to cure such claimed encumbrance prior to closing. Subsequently, the plaintiff initiated an interpleader action to determine the defendants' rights to the deposit held in escrow by the plaintiff. Thereafter, each of the defendants filed cross claims against the other, claiming, inter alia, breach of contract and return of deposit. At trial, the seller sought to introduce a letter of intent, signed by the defendants in 2016 during the early negotiations for the sale of the property, which provided that there was an existing sewer easement that ran with the land. The purchaser objected to the introduction of the letter of intent on the basis of the parol evidence rule, arguing that the purchase and sale agreement contained an integration clause, and, therefore, any extrinsic evidence related to the contract should be excluded. The trial court overruled the purchaser's objection and admitted the letter of intent as an exhibit, recognizing that it would not be considered in connection with interpretation or application of the contract and, there- fore, could not be used to impute or presume knowledge on the pur- chaser or alter the contract, but could be used in connection with other claims such as fraudulent inducement. Following a trial, the trial court concluded that the seller breached the purchase and sale agreement and that the purchaser was entitled to a return of its deposit and rendered judgment in favor of the purchaser, from which the seller appealed to this court. On appeal, held: 1. Contrary to the seller's claims that the purchaser could not invoke § 9 (b) of the purchase and sale agreement and could not argue that the failure to include the existence of the neighbor agreement in the pur- chase and sale agreement resulted in a material breach of that agreement because the letter of intent established the purchaser's knowledge of the neighbor agreement and potential sewer easement at the time the purchaser signed the purchase and sale agreement, § 16 (m) of the purchase and sale agreement established the purchaser's knowledge at the time that the agreement was signed and any evidence offered to alter the purchaser's knowledge was impermissible under the parol evidence rule: the trial court correctly determined that the seller relied on the letter of intent to alter the extent and manner of the parties' understanding as established in the purchase and sale agreement, as the agreement was explicit that the property was not subject to any easements or potential easements and contained no reference to the neighbor agreement or any potential easement on the property, and, therefore, the letter of intent was offered to vary or contradict the terms of the written purchase and sale agreement and was not proper evidence regarding what the parties agreed to in 2018; moreover, the seller's claim that the court erred in determining that the purchaser had no actual knowledge of the potential sewer easement failed, as the seller relied exclusively on the letter of intent and, therefore, constituted an addi- tional, impermissible attempt to alter the understanding between the parties established when they signed the purchase and sale agreement in 2018. 2. This court declined to review the seller's claim that the neighbor agreement was not an additional encumbrance pursuant to § 9 (b) of the purchase and sale agreement because the purchase and sale agreement required both the refusal of the purchaser's title insurer to issue title insurance and a qualified encumbrance pursuant to title standards, that claim having been inadequately briefed as the seller failed to cite any law or analysis in support of this argument that could render the court's action improper. 3. This court declined to address the seller's claim that that the trial court erred when it determined that the failure to disclose the existence of the neighbor agreement was a material breach of the purchase and sale agreement: because the trial court found that the seller had breached the purchase and sale agreement both by failing to return the deposit after the purchaser terminated the purchase and sale agreement and in his misrepresentations in the contract itself, there was no practical relief that this court could grant the seller with respect to his claim regarding a material breach, even if the court agreed with such claim, because the seller failed to challenge the other basis the trial court found a breach of the contract, and the seller's liability for breach of the purchase and sale agreement would remain intact. Argued February 1—officially released August 2, 2022

The petitioner, who had been convicted of murder and several other crimes in connection with a shooting incident, appealed to this court from the judgment of the habeas court dismissing in part and denying in part his fourth petition for a writ of habeas corpus. The petitioner had reasserted claims he made in his prior unsuccessful habeas petitions, alleging that the trial court violated his right to due process by failing to instruct the jury that its verdict must be unanimous and that his trial counsel, F, and two of his prior habeas counsel, V and G, rendered ineffective assistance. The court in the present case denied the petitioner's claims against F and V and rejected the petitioner's claim that G rendered ineffective assistance in failing to file a petition for certification to appeal from the second habeas court's judgment because, as a special public defender, she had no legal obligation to file an appeal on his behalf. The court dismissed the petitioner's remaining ineffectiveness claims against G on the ground that they were not ripe for adjudication and, thus, not justiciable. The court reasoned that the petitioner could not demonstrate that he was prejudiced until he had been denied permission to untimely file certain posttrial pleadings, including a late petition for certification to appeal. After the close of evidence in the present habeas action, the petitioner filed with the second habeas court a motion for permission to file a late petition for certification to appeal from its judgment, which had not been adjudicated at the time the habeas court in the present case rendered judgment. The petitioner thereafter filed a motion to open the judgment in the present habeas case to consider the second habeas court's denial of his motion for permission to file a late petition for certification to appeal. The court denied the motion to open, reasoning that no legal authority existed requiring a court to take judicial notice of pleadings and decisions after the close of evidence. Held: 1. The habeas court did not abuse its discretion in denying the petitioner certification to appeal as to his claim that his right to due process was violated when the trial court failed to instruct the jury that its verdict must be unanimous: the habeas court correctly concluded that the trial court properly denied the petitioner's request for a specific unanimity charge and his motion for a new trial, which was based on similar grounds, as the jury was instructed that its verdict on each count of the state's information must be unanimous, and the petitioner expressly conceded that the court's instructions did not sanction a nonunanimous verdict; moreover, contrary to the petitioner's assertion, the lack of a specific unanimity charge did not permit each juror to reach separate and distinct conclusions under different theories of liability premised on different evidence; furthermore, this court could not ignore the Supreme Court's determination in State v. Famiglietti (219 Conn. 605) that the petitioner was obligated to demonstrate that the jury instructions expressly sanctioned a nonunanimous verdict and that the absence of that threshold requirement ended review of his claim that he was deprived of his constitutional right to a unanimous verdict. 2. The habeas court did not abuse its discretion in denying the petitioner certification to appeal as to his ineffective assistance claims against F and V and correctly dismissed certain of his ineffective assistance claims against G for lack of justiciability: a. This court could not conclude that the habeas court erred in finding that F made a valid strategic decision not to obtain copies of the tran- scripts from the separate criminal trial of R and S, who were present at the time of the shooting, or that F's cross-examination of the state's witnesses was hindered by that decision; moreover, there was no merit to the petitioner's claim that F's failure to obtain the transcripts rendered him unable to make informed decisions as to which witnesses to call and how to cross-examine the state's witnesses, as F had attended the trial of R and S and observed the witnesses testify, the petitioner con- ceded to this court that F had pointed out inconsistencies in the wit- nesses' testimony, and F's concern that the transcripts could be used against the petitioner was not unfounded; furthermore, this court con- cluded that the habeas court did not err in finding that F did not render ineffective assistance by failing to obtain the transcripts from the trial of R and S, the petitioner could not prevail on his claim that V rendered ineffective assistance by failing to submit those transcripts to the court in the petitioner's first habeas trial and to assert that F's failure to do so at the criminal trial greatly inhibited F's ability to impeach the credibil- ity of the state's witnesses. b. The petitioner could not prevail on his claim that the habeas court erred in dismissing as nonjusticiable his ineffective assistance of counsel claim against G, which was based on the court's determination that the claim was not ripe for adjudication because he failed to file a petition for certification to appeal from the second habeas court's judgment: because the petitioner did not file a motion for permission to file a late petition for certification to appeal from the second habeas court's judgment until after the close of evidence in the present case, his right to seek appellate review of that judgment had not been foreclosed and, thus, he could not demonstrate that he suffered any prejudice; moreover, the petitioner could not demonstrate that the court's denial of his motion to open the judgment in the present case reflected an abuse of discretion, as he could have sought permission from the second habeas court to file a late petition for certification to appeal at any time since that court's 2006 judgment and, thus, could have presented to the court in the present case evidence that he sought to present had his motion to open the judgment been granted. Argued February 3—officially released August 2, 2022

The plaintiff, an inmate in a state correctional institution, sought, inter alia, to recover damages, pursuant to federal law (42 U.S.C. § 1983), from the defendants, three current or former employees of the Department of Correction, in their individual capacities, for the alleged violation of his constitutional rights in connection with injuries he allegedly sus- tained during a fire in his housing unit. An electrical fire occurred in a different cell in the plaintiff's housing unit, and the plaintiff, who was not evacuated from his cell during the three minutes between when the fire was reported and was declared extinguished, claimed that he suf- fered from smoke inhalation as well as labored breathing and mental trauma following the incident. The trial court granted the defendants' motion for summary judgment, finding that the facts alleged by the plaintiff were insufficient to demonstrate malevolent intent by the defen- dants as required for purposes of proving an eighth amendment violation pursuant to Whitley v. Albers (475 U.S. 312). The plaintiff appealed to this court, claiming that the trial court should have applied the deliberate indifference test adopted in Estelle v. Gamble (429 U.S. 97). Held that the trial court correctly concluded that the defendants were entitled to summary judgment, as the facts alleged by plaintiff did not give rise to a triable issue for determination by the fact finder under even the lesser deliberate indifference standard: the defendants did not consciously disregard a substantial risk of serious harm to the plaintiff, as they responded immediately to the fire, which was confined to a single cell that the plaintiff was not occupying, the fire was extinguished within three minutes of being reported, and the plaintiff was afforded medical attention within minutes after the fire was extinguished and demon- strated no serious ill effects; moreover, the defendants were justified in not evacuating the plaintiff or other potentially affected inmates for safety and security reasons, as there were ninety-two inmates in the unit and the staff was beginning a shift change when the fire was discovered. Argued February 15—officially released August 2, 2022

Convicted, after a jury trial, of the crime of operating a motor vehicle while under the influence of intoxicating liquor, and, under a part B information, on a plea of guilty, of being a second time offender pursuant to statute (§ 14-227a (g) (2)), the defendant appealed to this court. The defendant had attempted to make a U-turn when the car he was driving twice struck a car being driven by A. The defendant drove away from the accident scene and went home, where he claimed to have consumed a significant amount of alcohol and smoked a ''spliff.'' When the defendant reappeared at the scene on foot about twenty minutes later, A identified him as the driver of the other car. Police officers noticed that he was acting aggressively, slurring his speech and moving unsteadily. The defendant thereafter failed three sobriety tests the police administered to him and was taken to the police station where he was questioned after being advised of his rights pursuant to Miranda v. Arizona (384 U.S. 436). The defendant was charged under subdivision (1) of § 14- 227a (a), the behavioral subdivision, pursuant to which blood alcohol levels generally are excluded from evidence without a defendant's con- sent, in accordance with § 14-227a (c). The defendant testified on his own behalf, including testifying that he had not begun to consume alcohol until after he returned home after the incident with A. The state offered as rebuttal evidence the testimony of its expert witness, L, a forensic toxicologist. L testified in response to a set of hypothetical facts about the amount of time it typically takes for alcohol to have observable effects on an individual's motor functions and typical behav- ior associated with certain blood alcohol levels. The court overruled the defendant's objection to L's testimony. On appeal, the defendant claimed, inter alia, that L's testimony was tantamount to testimony about the defendant's blood alcohol content and, thus, violated the prohibition of such testimony under § 14-227a (c) in a prosecution under the behav- ioral subdivision. Held: 1. The evidence was sufficient to support the defendant's conviction of operating a motor vehicle while under the influence of intoxicating liquor: the defendant's reckless driving, the fact that he drove away from the accident scene, and his slurred speech and belligerent behavior toward the police when he returned to the scene permitted the jury reasonably to infer that he was intoxicated when his car struck A's car; moreover, the defendant admitted that he had been driving, he was substantially unable to follow the police officers' instructions when he failed the sobriety tests, and his refusal to take a breath analysis or urine test at the police station permitted an inference that a test would have revealed that he had an elevated blood alcohol content; further- more, the jury reasonably could have inferred that the defendant's intoxi- cation when he reappeared at the accident scene was not reasonably attributable to his drinking when he arrived home after leaving the scene, which was supported by L's testimony, and, although the defen- dant claimed that A's testimony was suspect and that the jury was obligated to credit his testimony that he consumed a significant amount of alcohol when he returned home, it was within the jury's province to determine whose testimony to credit. 2. The defendant could not prevail under State v. Golding (213 Conn. 233) or the plain error doctrine on his unpreserved claim that the trial court improperly permitted L to testify, in violation of § 14-227a (c), about the likely blood alcohol content of a person who was slurring his speech: a. Because the defendant objected to L's testimony on the ground that it was irrelevant and that L could not provide any definite conclusions about the defendant's blood alcohol content, the defendant's claim on appeal was unpreserved, as he did not cite to § 14-227a (c) or otherwise inform the trial court that the admission of L's testimony without the defendant's consent would violate § 14-227a (c). b. The defendant's claim that he was denied his right to due process as a result of L's testimony was unavailing; the defendant failed to demon- strate that the testimony was so crucial, critical and highly significant that he was denied a fair trial, as his claim did not implicate anything more than an evidentiary or statutory claim and, thus, could not be reviewed because it was not constitutional in nature, as required by Gold- ing. c. Although the state violated the spirit if not the letter of § 14-227a (c) by seeking to admit opinion testimony in a behavioral case under § 14- 227a (a) (1) that implicitly related to the defendant's blood alcohol content, the defendant nevertheless failed to demonstrate the existence of plain error. 3. The trial court did not abuse its discretion in determining that the defen- dant failed to establish a proper foundation to cross-examine L about whether other substances could have affected the rate at which an individual can become visibly intoxicated from alcohol: although the defendant had the opportunity to lay a factual foundation as to what substances he ingested, he did not define what a spliff was or what substances it contained, and, without that evidentiary foundation, any opinion by L regarding the effect of other substances in combination with alcohol on the rate of intoxication lacked relevance; accordingly, the court's decision to preclude L's testimony on that basis did not violate the defendant's sixth amendment right to confrontation. 4. The record was inadequate to review the defendant's claim that the trial court improperly denied his motion to suppress statements he made at the accident scene and at the police station, as he failed to seek a proper memorandum of decision from the court addressing all of the arguments he raised in his motion or to seek an articulation of the court's decision, which was made without having conducted an evidentiary hearing prior to ruling on the motion. Argued April 11—officially released August 2, 2022

Pursuant to statute (§ 52-470 (d) (1)), when a habeas petitioner files a subsequent petition for a writ of habeas corpus more than two years after the date on which judgment on a prior habeas petition challenging the same conviction is deemed final, there is a rebuttable presumption that the filing of the subsequent petition has been delayed without good cause. The petitioner, who had been convicted of the crimes of sexual assault in the first degree and risk of injury to a child, filed a third petition for a writ of habeas corpus. Because the third petition was filed beyond the two year time limit for subsequent petitions set forth in § 52-470 (d) (1), the habeas court, upon the request of the respondent Commissioner of Correction, issued an order to show cause why the petition should be permitted to proceed and scheduled an evidentiary hearing on the issue. Prior to the show cause hearing, the petitioner moved to disqualify the habeas judge on the ground that he had presided over the petitioner's first habeas trial and that his comments related to the credibility of the petitioner's testimony in that case would create the appearance of impropriety if he were to preside over the present case. The habeas court denied the petitioner's motion for disqualification. At the show cause hearing, the petitioner testified that he had filed a timely second habeas petition, but it was withdrawn prior to trial on the advice of his counsel and that his counsel had advised him to wait at least sixty days before filing another petition to avoid the suspicion of the court. The habeas court dismissed the third habeas petition as untimely, concluding that the petitioner failed to demonstrate good cause for the nearly ten month delay in filing the petition and that the withdrawal of the second petition was strategically filed to manipulate or delay proceeding to trial. Thereafter, the habeas court denied the petitioner's petition for certification to appeal, and the petitioner appealed to this court. Held: 1. The habeas court did not abuse its discretion in denying the petition for certification to appeal, the petitioner having failed to demonstrate that his claims involved issues that were debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions raised were adequate to deserve encouragement to proceed further. 2. The habeas court did not abuse its discretion in determining that the petitioner failed to demonstrate good cause for the delay in filing his third habeas petition: contrary to the petitioner's claim that he estab- lished good cause because the delay was due to his second habeas counsel's incorrect advice, the petitioner failed to establish that some- thing outside of his or his counsel's control caused or contributed to the delay in filing the third petition, and, even assuming that it was reasonable for him to withdraw the second petition prior to his pending trial and to wait at least sixty days before filing another petition, the petitioner did not file his third petition until nearly ten months after the statutory deadline had elapsed, and he provided no explanation as to why he waited an additional eight months beyond his counsel's suggested sixty day period before filing it; moreover, in making its determination, the habeas court reasonably considered the fact that the petitioner made no claim that the delay was due to missing witnesses or newly discovered evidence and reasonably concluded that the petitioner's actions were an attempt to manipulate or delay proceeding to trial. 3. The habeas court did not abuse its discretion in denying the petitioner's motion for disqualification of the habeas judge: contrary to the petition- er's contention that certain comments made by the judge during the petitioner's first habeas trial created the appearance of impropriety, the judge indicated that he had no recollection of the prior proceeding, which had occurred seven years earlier, and the subject comments were made in the purview of his judicial role and reflected credibility determinations made with respect to the specific testimony given and the demeanor exhibited at the first habeas trial, and, therefore, it was clear that the judge's previous credibility determinations would not cause a reasonable person to question his impartiality in presiding over the present case nor were his comments so extreme as to display a clear inability to render fair judgment. Argued March 10, 2021—officially released August 9, 2022

The plaintiff bank sought to recover damages for alleged tortious interfer- ence with business expectancy and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.), for the defendants' actions in connection with the plaintiff's attempt to collect amounts owed to it by S Co., which the plaintiff alleged was a shell company controlled by the defendant A. The plaintiff sought to enforce a judgment it previously obtained against S Co. in a different jurisdiction and alleged that the defendants deliberately interfered with a court-ordered sale of certain assets to satisfy that judgment by fabricating a document purporting to grant the defendant C the right of first refusal to acquire the asset, shares in a software company. The trial court denied the defendants' motion to dismiss the plaintiff's complaint, in which they claimed that the court lacked subject matter jurisdiction because the plaintiff's allegations arose out of communications made and actions taken in past judicial proceedings and were thus barred by the litigation privilege. On the defendants' appeal to this court, held: 1. The trial court erred in denying the defendants' motion to dismiss the plaintiff's claim for tortious interference with business expectancy, as the claim was predicated on communications made during and relevant to prior judicial or quasi-judicial proceedings: multiple paragraphs of the plaintiff's complaint included allegations concerning the defendants' participation in or commencement of legal actions or appeals, and the fact that the plaintiff characterized the defendants' alleged legal actions as conduct that was meritless, frivolous or an abuse of the legal system did not bring the conduct within the limited exception to the litigation privilege, as the cause of action of tortious interference does not chal- lenge the purpose of the underlying litigation procedure; moreover, the plaintiff could have pursued other remedies to address the defendants' claimed abuses, including an abuse of process or vexatious litigation claim, but chose not to do so. 2. The trial court erred in denying the defendants' motion to dismiss the plaintiff's claim asserting a violation of CUTPA; the plaintiff's claim, premised largely on the defendants' alleged communications and con- duct in prior judicial proceedings, including the alleged introduction of false and/or fabricated evidence and the alleged filing of false and/or frivolous actions and appeals, closely resembled CUTPA claims that courts in Connecticut consistently have held are barred by the litiga- tion privilege. 3. Although the plaintiff's complaint included allegations unrelated to com- munications in the course of judicial proceedings, the litigation privilege barred those claims, as the complaint was permeated with allegations pertaining to the defendants' communications and participation in prior judicial proceedings, which were both central to the plaintiff's claims and inextricably intertwined with the allegations of extrajudicial conduct. Argued February 14—officially released August 23, 2022

The defendant, who had been convicted, on a plea of guilty, of the crimes of assault in the first degree and carrying a pistol without a permit, appealed to this court from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant was sentenced in 2017 to a term of incarceration followed by a period of special parole. Subsequently, the legislature enacted No. 18-63, § 2, of the 2018 Public Acts (P.A. 18-63), which repealed and replaced subsection (b) of the special parole statute ((Rev. to 2017) § 54-125e), to require a trial court, when sentencing a person, to determine, based on various factors, whether a period of special parole was necessary to ensure public safety. The defendant alleged in his motion to correct an illegal sentence that P.A. 18-63 applied retroactively to his sentence of special parole and that the court should vacate that part of his sentence and hold a new sentencing hearing. The court denied the defendant's motion, concluding that P.A. 18-63 did not apply retroactively. On the defendant's appeal to this court, held: 1. The defendant could not prevail on his claim that § 2 of P.A. 18-63 was intended to apply retroactively to his sentence of special parole on the basis that § 54-125e is procedural in nature rather than substantive: this court concluded that the defendant's claim was governed by its decision in State v. Omar (209 Conn. App. 283), in which it determined that, because P.A. 18-63 repealed and replaced the imposition of a form of punishment for a criminal conviction, the plain meaning analysis set forth in State v. Bischoff (337 Conn. 739) controlled and the criminal savings statutes (§§ 54-194 and 1-1 (t)) applied to P.A. 18-63, and, having considered the plain language of § 2 of P.A. 18-63, determined that the act clearly and unambiguously prohibited retroactive application; moreover, this court determined in Omar that, in the absence of a clear and unequivocal expression of legislative intent that an amendment to a criminal penalty applied retroactively, an act repealing and replacing the imposition of a form of punishment is governed by the presumption in the criminal savings statutes against retroactivity. 2. The defendant could not prevail on his claim that P.A. 18-63 was intended to apply retroactively to his sentence of special parole because the legislative history and amendatory language of P.A. 18-63 demonstrated that it was meant to clarify § 54-125e, rather than effect a change in the law: this court concluded that its decision in State v. Smith (209 Conn. App. 296) controlled this claim, this court having held in Smith that the legislature, in passing P.A. 18-63, did not intend to clarify § 54-125e, that the language in the prior version of § 54-125e (b) was already clear prior to the amendment, and the language that was added changed § 54-125e (b) by narrowing its application; moreover, contrary to the defendant's contention that Smith was concerned primarily with § 1 and not § 2 of P.A. 18-63, it was clear that this court in Smith considered both sections of P.A. 18-63 and determined that neither was intended to clarify the statutes at issue, including § 54-125e. Argued May 11—officially released August 23, 2022

The defendant, who had been convicted of the crimes of murder and assault in the first degree, appealed to this court from the judgment of the trial court dismissing his motion to correct an illegal sentence. At the time the defendant committed the crimes, he was twenty-one years old. Following trial, the defendant was sentenced to sixty years of incarceration. In his motion to correct, the defendant argued that his right to due process was violated when the court made assumptions at his sentencing pro- ceeding regarding his future rehabilitative potential that were materially false when contrasted with the brain science underlying the continuous growth and development of young adults during late adolescence. He also contended that he was entitled to a resentencing hearing because the due process clause of the fourteenth amendment to the United States constitution permitted him to present evidence demonstrating that juve- nile criminal records are not indicative of rehabilitation potential. The court dismissed the motion to correct, concluding that the defendant failed to state a colorable claim for relief under Miller v. Alabama (567 U.S. 460), and its progeny. On the defendant's appeal to this court, held: 1. Although the trial court erred in holding that the defendant failed to state a colorable claim for relief, the defendant could not prevail on his motion to correct an illegal sentence: because the defendant's claim relied on the theory of youth related brain science set forth in Miller and its progeny for purposes of sentence mitigation, the defendant properly invoked the trial court's subject matter jurisdiction as his claim chal- lenged his sentence or sentence proceedings and not the underlying conviction, his claim having been predicated on the theory that the court impermissibly failed to properly consider his potential for rehabilitation when imposing the sentence of incarceration; moreover, it is well settled that a defendant who was an adult at the time he committed the offense for which he was sentenced could not succeed on a federal constitutional claim that he was entitled to be resentenced based on the youth related brain science underlying Miller and its progeny, and, here, the defendant was twenty-one years of age when he committed the underlying offenses; accordingly, because the defendant stated a colorable claim properly invoking the court's subject matter jurisdiction, but could not prevail on his motion to correct an illegal sentence, the court should have denied rather than dismissed his motion. 2. The defendant could not prevail on his claim that he was entitled to an evidentiary hearing to present expert testimony on juvenile brain science in support of his motion to correct; although the defendant relied on a state case, State v. Miller (186 Conn. App. 654), in which it was contended that the state constitution could be interpreted as permitting youth related sentencing mitigation for defendants above the age of eighteen, the defendant's state constitutional due process claim was not advanced in either his appellate brief or at oral argument on appeal, and, therefore, the claim was abandoned. Argued May 17—officially released August 23, 2022

The plaintiff, inter alia, sought to recover damages from the defendant property owner for breach of contract. The parties had entered into an oral management agreement for an unspecified term, pursuant to which the plaintiff agreed to act as the defendant's exclusive agent for the licensing of rooftop telecommunications equipment to be located at the defendant's property in exchange for a percentage of the monthly receipts generated by any licenses. The plaintiff procured two contracts for the placement of wireless telecommunications equipment on top of the building on the property and collected the commissions due in connection therewith for approximately eleven years. Thereafter, the defendant only intermittently remitted the commissions to the plaintiff. Additionally, unbeknownst to the plaintiff, the defendant had entered into similar contracts for the placement of wireless telecommunications equipment on the building with three other parties and had not remitted any commissions to the plaintiff in connection with those contracts. After commencing this action, the plaintiff filed an application for a prejudgment remedy, inter alia, to secure an amount equal to the amounts allegedly due to it with respect to the two original contracts and with respect to the commissions that it should have received in connection with the three additional contracts. In response, the defen- dant asserted special defenses, including that the plaintiff had violated the applicable statute (§ 20-325a), which barred the recovery of certain real estate commissions, and that enforcement of the oral management agreement was barred by the statute of frauds and the rule against perpetuities. The trial court granted the plaintiff's application for a prejudgment remedy with respect to its breach of contract count, determining that the plaintiff had established probable cause that the parties had entered into a valid and enforceable oral management agree- ment and that the defendant had breached that agreement by failing to remit to the plaintiff the commissions relating to the three additional contracts, and the defendant appealed to this court. Held: 1. The trial court properly rejected the defendant's special defense that the plaintiff's claims were barred by § 20-325a because the plaintiff was exempt from its prerequisites pursuant to the applicable statute (§ 20- 329 (9)), which provided an exception for leases or licenses of space on buildings for unattended personal wireless services facilities, related devices, and ancillary equipment used to operate such devices in an area not to exceed 360 square feet for any one service: it was not improper for the trial court to rely on the testimony of the plaintiff's expert, A, in determining the meaning of the language of the § 20-329 (9) exception because, pursuant to the applicable statute (§ 1-1 (a)), the undefined, technical statutory terms relating to the calculation of the square footage requirement of the exception were to be accorded the meaning that they would convey to an informed person in the applicable field, and, having worked in the wireless industry for nineteen years, A was an informed person in the applicable field; moreover, the defendant's argument that the definitions contained in the applicable federal statute (47 U.S.C. § 332) and regulation (47 C.F.R. § 1.6002) required the conclu- sion that the space occupied by antennas must be included within the square footage calculation for purposes of determining the applicability of the exception was unavailing because those definitions did not relate to measurement; furthermore, the defendant's proposed construction of the exception, which would limit its applicability to a single wireless facility, was unreasonable because it ignored the context of the phrase at issue, which suggested that the square footage limitation applied to each such facility; additionally, the defendant's argument that A improp- erly added together the square footage of certain components of the installation, rather than measuring the entire area in which the compo- nents were contained, was unavailing. 2. The trial court properly determined that the defendant's defense with respect to the rule against perpetuities did not defeat the finding of probable cause because such rule concerned only the rights to property, the oral management agreement did not create or transfer any right in property, and the plaintiff did not claim any interest in the defen- dant's property. 3. The trial court properly determined that the defendant's defense with respect to the statute of frauds did not defeat the finding of probable cause: the defendant's argument that the oral management agreement was unenforceable pursuant to statute (§ 52-550 (a) (4)) because the plaintiff's claims concerned real property was unavailing because the trial court correctly determined that the agreement was for services and did not confer any rights to an interest in real property; moreover, the defendant's argument that the oral management agreement was unenforceable pursuant to § 52-550 (a) (5) because it was not to be performed within one year from the making thereof was also unavailing because the trial court determined that the agreement was one of indefi- nite duration, and, accordingly, it was outside of the proscriptive force of § 52-550 (a) (5) regardless of how long it would actually take to complete performance. Argued March 1—officially released August 30, 2022

Convicted, after a jury trial, of the crimes of larceny in the third degree and identify theft in the third degree, and, under a part B information, on a plea of guilty, of being a persistent serious felony offender, the defendant appealed to this court. The defendant stole a wallet, belonging to his father, M, and used the credit cards, a debit card and his father's driver's license contained within to make several purchases from various stores, totaling in excess of $2000. On appeal, the defendant claimed, inter alia, that the evidence was insufficient to prove that the defendant had appropriated in excess of $2000 from M to himself and that certain documentary evidence was improperly admitted in violation of the defen- dant's constitutional right to confrontation and the rule against hear- say. Held: 1. The defendant could not prevail on his claim that, because the state presented evidence that M suffered only a loss of credit through the defendant's use of the stolen credit cards and that the state failed to prove that credit is money, the evidence was insufficient to prove that the defendant appropriated in excess of $2000 from M to himself: contrary to the defendant's assumption that the state's theory of the case at trial with respect to the use of the credit cards was that the defendant stole money, the state's theory of the case was that the defendant stole credit from M, and it was sufficient to present evidence of the transactions, the credit card statements posting the transactions and M's efforts to remove those transactions from his credit card statements, and the record clearly demonstrated that the defendant used M's credit cards to purchase items without authorization to do so, those items were charged to M, and M's credit card issuers billed him for those charges, and the defendant failed to provide other facts that the state could have produced to prove that unauthorized use of a credit card results in a taking of credit; moreover, although the credit card issuers eventually did not hold M responsible for the debt that the defendant incurred, the defendant's actions resulted in a reduction of M's available credit at the time of the unauthorized purchases; furthermore, although M's loss of credit was not permanent, it did not mean that his credit was not stolen. 2. The defendant could not prevail on his unpreserved claim that both a property report, created by the investigating police officer that detailed the fraudulent transactions made by the defendant, and M's statement to the police, constituted testimonial hearsay that was improperly admitted into evidence in violation of his sixth amendment right to confrontation, as the record clearly demonstrated that defense counsel waived any objection to the admission of the property report and M's statement. 3. The defendant could not prevail on his unpreserved claim that letters from two card issuers regarding the fraudulent charges, which were admitted into evidence as past recollections recorded under a provision (§ 8-3 (6)) of the Connecticut Code of Evidence, constituted testimonial hearsay that was admitted in violation of his sixth amendment right to confrontation, as any error in admitting these letters was harmless beyond a reasonable doubt; these letters were admitted to show that the fraudulent charges occurred and that M reported that he was not involved in those transactions, and, contrary to the defendant's claim that the other exhibits were all evidence of the same facts and, therefore, the letters were corroborative, the record demonstrated that the letters were cumulative. 4. The defendant could not prevail on his unpreserved claim that two state- ments from M's credit card issuers were improperly admitted as past recollections recorded under § 8-3 (6) of the Connecticut Code of Evi- dence, on the ground that the information contained therein was never personally known to M, through whom the statements were presented, as any such error did not substantially affect the verdict; the record demonstrated that M's statement to the police established the dates and values of the fraudulent transactions and, therefore, the statements, admitted only to prove those values, were merely cumulative, the testi- mony of M and the investigating police officer regarding the charges established the amounts listed on the property report and in M's state- ment to the police, and, accordingly, the two statements were not needed to corroborate the information presented. Argued April 12—officially released August 30, 2022

The defendant T Co. appealed to this court from the judgment of the trial court determining that it lacked subject matter jurisdiction to consider T Co.'s motion to reargue or to reconsider the trial court's prior denial of T Co.'s motion to open a judgment of strict foreclosure. The defendant R Co. had defaulted on a promissory note and mortgage it executed in favor of the plaintiff concerning a parcel of real property. The trial court rendered judgment of strict foreclosure in favor of the plaintiff and set the law day to run on May 20, 2019. R Co. did not file a timely appeal from the judgment but, on May 15, 2019, filed a motion to open and vacate the judgment. The court denied R Co.'s motion to open and set a new law day for June 24, 2019. On June 10, 2019, pursuant to the applicable rule of practice (§ 11-11) and within the twenty day appellate stay period, R Co. filed a motion to reargue or to reconsider the court's denial of its motion to open. The court denied the motion to reargue on July 3, 2019, and notice of the court's ruling was sent to the parties on July 5, 2019. The plaintiff thereafter filed a certificate of foreclosure on the land records and quitclaimed the property to another entity. On December 7, 2020, pursuant to statute (§ 49-15), T Co. filed a motion to open and vacate the foreclosure judgment. T Co. claimed that title to the property had never passed to the plaintiff because the June 24, 2019 law day fell within the twenty day appellate stay period and the parties did not receive notice of the trial court's denial of R Co.'s motion to reargue until July 5, 2019. The trial court concluded that T Co.'s motion to open was moot because the filing of R Co.'s motion to reargue did not stay the June 24, 2019 law day and, thus, absolute title had vested in the plaintiff on the passing of the June 24, 2019 law day. Held that the trial court erred in determining that it was without subject matter jurisdiction to hear T Co.'s motion to open and vacate the foreclosure judgment: under the applicable rule of practice (§ 63-1 (b)), R Co.'s timely filing of its motion to reargue the court's denial of R Co.'s motion to open and vacate the foreclosure judgment triggered the automatic stay provision in the applicable rule of practice (§ 61-11 (a)) until the parties received notice of the court's ruling on R Co.'s motion to reargue on July 5, 2019, and, because the June 24, 2019 law day fell within the extended appellate stay period, the June 24, 2019 law day had no legal effect and could not vest absolute title in the plaintiff; accordingly, the trial court retained jurisdiction to decide T Co.'s motion to open and vacate the foreclosure judgment. Submitted on briefs December 8, 2021—officially released August 30, 2022

The plaintiff tenant sought, inter alia, an order to compel the defendant to exterminate an infestation of insects and rodents in her leased premises, one of six rental units in a building for which the defendant is the landlord. The plaintiff, who was the recipient of a rent subsidy, first reported the infestation to the defendant and then contacted the munici- pal agency responsible for housing code enforcement in the city in which the premises was located. An inspector from the agency ordered the defendant to rid the premises of the infestation and issued a notice of compliance after the defendant treated the infestation. The plaintiff thereafter filed a complaint for housing code enforcement pursuant to the applicable statute (§ 47a-14h), alleging that the defendant violated the statute (§ 47a-7 (a) (1)) when it failed to exterminate the infestation in the premises, and she began paying her portion of the monthly rent to the clerk of the court pursuant to § 47a-14h. The defendant filed a counterclaim alleging that the plaintiff had prevented and/or failed to prepare for its access to the premises in an attempt to debilitate and/ or thwart its ability to comply with the housing code enforcement orders. The trial court determined that the premises had been infested with insects and rodents for more than one year, the defendant's efforts to remediate the infestation had not been reasonable as, inter alia, other units within the building also remained infested, and the defendant had violated its duties as a landlord pursuant to § 47a-7 and the housing code. The court rendered judgment in favor of the plaintiff on her complaint and on the defendant's counterclaim and awarded the plain- tiff, inter alia, an abatement of any rent in arrearage and six months of prospective abatement of rent based on her share of the subsidized rent. Thereafter, the defendant appealed to this court, claiming, inter alia, that the court improperly concluded as a matter of law that the defendant had violated the housing code and the housing code was unconstitution- ally vague, and the plaintiff filed a cross appeal, arguing that the court erred in calculating rent abatement based on her share of the subsidized rent. Held: 1. This court declined to review the defendant's claim that the trial court lacked subject matter jurisdiction to consider evidence of housing code violations that predated the filing of the plaintiff's complaint with the municipal agency; the defendant did not dispute that the trial court had subject matter jurisdiction over the plaintiff's complaint, as the plaintiff complied with the requirement pursuant to § 47a-14h that a complaint be made to the municipal agency responsible for enforcement of the housing code at least twenty-one days prior to the filing of a complaint with the court, and the defendant's claim that the trial court did not have jurisdiction over any evidence of housing code violations prior to the filing of the complaint was an evidentiary claim raised for the first time on appeal. 2. The defendant could not prevail on its claim that the trial court improperly concluded as a matter of law that the defendant violated the housing code; the city's housing code plainly and unambiguously required that, when an infestation exists in two or more dwelling units, the owner of the property was responsible for extermination, defined as the control and elimination of insects or other pests, and the court's factual findings that the defendant did not act reasonably to resolve the infestation problem because its actions were too slow and not effective were not clearly erroneous, as, on the basis of the evidence presented at trial, the court found that the premises and several other units in the building had been infested, that more than one year had elapsed between the initial report of infestation and the notice of compliance from the munici- pal agency, and that multiple other units remained infested in violation of the housing code. 3. The defendant could not prevail on its claim that the housing code, as applied to it in this case, was unconstitutionally vague: although the plaintiff claimed that the defendant failed to exhaust its administrative remedies, the doctrine of exhaustion of administrative remedies was not applicable, as the municipal agency responsible for enforcing the housing code was not a state agency as defined by statute (§ 4-166 (1)); moreover, the defendant's unpreserved claim that the housing code was void for vagueness failed to meet the requirement of State v. Golding (213 Conn. 233) that a constitutional violation occurred that deprived the defendant of a fair trial, as the defendant had proper notice of what constituted an infestation under the housing code and the required steps to remedy such an infestation, and the housing code did not lack minimal guidelines or sufficient standards to guide the municipal agency or the court with respect to its proper application in this case. 4. The plaintiff could not prevail on her claim in her cross appeal that the trial court erred in calculating rent abatement based on her share of the subsidized rent rather than the full market rent: § 47a-14h clearly and unambiguously authorized the court to order abatement of rent and return such rent paid to the court in proportion to the amount paid by each party; moreover, although the court was not required to make the subsidizing entity a party to the action, and the subsidizing entity was not made a party, the statute explicitly provided that, when a subsidizing entity is joined as a party and pays its share of rent to the court, any rent to be returned shall be returned to the tenant and such entity in proportion to the amount of rent each deposited with the court. Argued March 1—officially released August 30, 2022

The plaintiff property owner sought to recover damages from the defendant title insurance company for an alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.), based on a violation of the Connecticut Unfair Insurance Practices Act (CUIPA) (§ 38a-815 et seq.), in connection with a title insurance policy issued by the defendant to the plaintiff. The plaintiff brought the present action after protracted negotiations between the parties regarding the value of the plaintiff's claim as to a disputed property title. The plaintiff alleged that the defendant engaged in unfair and deceptive acts or practices in its administration of the policy and in its handling of the plaintiff's claim. Following a trial, the trial court found that the plaintiff had failed to demonstrate any unfair claim settlement practices under CUIPA by the defendant. On appeal, the plaintiff claimed, inter alia, that the evidence he presented at trial established that the defendant's unfair practices in failing to acknowledge and act with reasonable promptness upon communications with respect to his claim, in violation of the applicable provision (§ 38a-816 (6) (B)) of CUIPA, were part of a general business practice by the defendant, as required under § 38a-816 (6). Held that the trial court correctly rendered judgment in favor of the defendant with respect to the CUTPA claim, as the plaintiff, having failed to establish a general business practice of delaying communications by the defendant, failed to set forth a valid CUIPA claim, which was fatal to the plaintiff's CUTPA claim: the evidence presented by the plaintiff did not establish the existence of a general business practice by the defendant for pur- poses of § 38a-816 (6), as the cases relied on by the plaintiff to show a general business practice were factually distinguishable and had ques- tionable evidentiary value in light of their differences, and the plaintiff failed to present any testimony or other documentary evidence relating to the alleged business practice of the defendant; moreover, the delays in the plaintiff's case were caused by both the plaintiff and the defendant, and, although some delays resulted from corporate inefficiencies and mismanagement by the defendant, a fair portion of the delays in the present case were due, in part, to other causes, including the plaintiff's own delayed responses to communications and his insistence on receiv- ing compensation for the potential relocation of a replacement septic system, an issue that prolonged the negotiations and that the court ultimately found to be of tenuous relevance to the diminution in value of the property. Argued February 3—officially released September 6, 2022

The defendant appealed to this court from the judgment of the trial court granting the plaintiff's application for a civil restraining order pursuant to statute (§ 46b-15). At an evidentiary hearing, the plaintiff testified that there was a pending action for a dissolution of marriage between the parties and that she had been increasingly afraid of the defendant. The plaintiff testified that one evening, when she went to a restaurant with a group of people, she saw the defendant approach the hostess stand, he stared at her with a furrowed brow, locked eye contact with her, and that he seemed very agitated in his physical movements. After the defendant left the restaurant, he sent various text messages and emails to the plaintiff regarding the encounter. The trial court granted the application for a civil restraining order against the defendant, finding that the defendant's conduct created a pattern of threatening. On the defendant's appeal to this court, held that the trial court erred in failing to apply an objective standard to its determination when it issued the civil restraining order based on the pattern of threatening provision of § 46b-15 (a): the court viewed the evidence through the lens of the plaintiff's subjective reaction to the defendant's conduct, namely, her resulting fear, and stated that the plaintiff's testimony indicated a tone of hostility that she felt frightened her, and, although the reaction of an applicant can help provide context, subjective fear of an applicant is not a statutory requirement under § 46b-15, and, instead, what is required is the occurrence of conduct that constitutes a pattern of threatening; moreover, § 46b-15 does not contain any statutory language requiring a subjective-objective analysis, and there is nothing in the statutory language indicating that the legislature intended for courts to issue civil restraining orders under the pattern of threatening portion of § 46b-15 in situations other than where it is objectively reasonable to conclude, based on context, that the defendant had subjected the alleged victim to a pattern of threatening. Argued April 6—officially released September 6, 2022