Volume 230 — Connecticut Appellate Reports

The plaintiff appealed from the judgment of the trial court dismissing his appeal, brought pursuant to statute (§ 7-278), from the decision of the Weth- ersfield Town Council approving his dismissal as chief of police for the defendant town. The plaintiff claimed, inter alia, that the court improperly concluded that it lacked subject matter jurisdiction over his cause of action because the appeal was moot. Held: This court affirmed the judgment of the trial court on the alternative ground that the plaintiff's administrative appeal was brought against the wrong party, as the plaintiff was required pursuant to § 7-278 to name the authority having the power of dismissal, namely, the town council, and, accordingly, the trial court lacked jurisdiction over the action and dismissal was war- ranted on that basis. Argued October 15—officially released December 31, 2024

The plaintiff appealed from the trial court's order remanding its administra- tive appeal from the decision of its human rights referee, which concluded that the defendant employer had discriminated against its former employee, M, on the basis of her disability but that M failed to establish that she had been constructively discharged. The plaintiff claimed, inter alia, that the court erred by remanding the matter to the referee without sustaining the appeal. Held: The trial court erred in remanding the matter to the referee for an amended decision while retaining jurisdiction over the appeal because, pursuant to statute (§ 4-183), there was no legal basis for the remand, as there was no ambiguity in the referee's decision that required a clarification or an articulation. The trial court should have dismissed the appeal because there was substan- tial evidence in the record to support the referee's finding that M failed to prove that she was constructively discharged. Argued October 16, 2024—officially released January 7, 2025

Convicted, following a plea of guilty, of the crime of manslaughter in the first degree, the defendant appealed, claiming that the trial court erred in failing to inform him, before accepting his plea, that he would be not eligible to accumulate risk reduction credits to reduce his sentence pursuant to statute (§ 18-98e) and, thus, his plea was not knowingly or voluntarily made. The defendant requested, as a remedy, that this court provide him with eligibility to earn those credits. Held: This court was unable to provide the defendant with the relief he requested, as it was not within the authority of this court to amend § 18-98e, which expressly provides that any person sentenced for manslaughter in the first degree is ineligible to earn risk reduction credits. Argued September 18, 2024—officially released January 7, 2025

The petitioner, who had been convicted, after a jury trial, of murder and other crimes, appealed from the habeas court's judgment denying his petition for a writ of habeas corpus. He claimed that the court improperly concluded that he had failed to demonstrate that his criminal trial counsel provided ineffective assistance by failing to move for a mistrial after an exhibit was published to the jury indicating that the petitioner had been incarcerated near the time of his criminal trial, which he claimed vitiated his right to the presumption of innocence and constituted structural error. Held: The petitioner failed to explain why the rule of State v. Rose (305 Conn. 594), that a conviction is reversible per se when a defendant is compelled to stand trial in identifiable prison clothing, should apply to his claim, nor did he provide any precedent requiring the application of structural error under the circumstances at issue. The petitioner could not prevail on his ineffective assistance of counsel claim, as he failed to establish that he was prejudiced under Strickland v. Washington (466 U.S. 668) as a result of counsel's failure to move for a mistrial. Argued September 9, 2024—officially released January 14, 2025

Convicted of misconduct with a motor vehicle in violation of statute (§ 53a- 57), the defendant appealed. He claimed, inter alia, that there was insufficient evidence to prove that he acted with criminal negligence as required by § 53a-57. Held: The trial court reasonably concluded that the evidence demonstrated beyond a reasonable doubt that the defendant acted with criminal negligence pursu- ant to § 53a-57 because, on the basis of the evidence before it, it was reasonable for the court to infer that the defendant was distracted for a prolonged period of time while driving, that he consequently failed to per- ceive the substantial and unjustifiable risk that the manner in which he was operating his vehicle would cause the death of the victim, and that such failure was a gross deviation from the standard of care that a reasonable driver would observe in that situation. Argued November 21, 2024—officially released January 21, 2025

The plaintiff appealed from the judgment of the trial court with respect to its dismissal of the count of her complaint alleging bad faith against the defendant insurance company. She claimed, inter alia, that the court improp- erly concluded that the litigation privilege applied and deprived the court of subject matter jurisdiction. Held: The trial court improperly granted the defendant's motion to dismiss the plaintiff's bad faith claim for lack of subject matter jurisdiction as the allegations of bad faith for conduct that occurred outside the judicial pro- ceeding and prior to the commencement of the underlying litigation had no connection or logical relation to any ongoing judicial proceeding and, therefore, were not covered by the litigation privilege. Argued October 15, 2024—officially released January 21, 2025

The plaintiff, an association comprised of town residents who opposed the construction of a bulk propane storage facility in the town, appealed from the judgment of the trial court dismissing its declaratory judgment action against the defendants. The plaintiff claimed that the court erred in dismiss- ing the action on the ground that it failed to exhaust its administrative remedies. Held: This court affirmed the trial court's judgment dismissing the action on the alternative ground that the plaintiff lacked standing to maintain the action against the defendants, the plaintiff having failed to allege sufficient facts to establish that any of its individual members were aggrieved, as is required to establish associational standing. The plaintiff's allegation that certain actions by one of the defendants, a town official, violated the public trust, without any allegation of how that violation affected the plaintiff's individual members in a manner distinguish- able from those in the community as a whole, was insufficient to establish that the plaintiff's members were aggrieved. Argued October 10, 2024—officially released January 28, 2025

The petitioner, who had been convicted of kidnapping in the second degree, appealed following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claimed, inter alia, that the court erred in concluding that he failed to establish good cause for his late filed petition pursuant to statute (§ 52-470). Held: The habeas court did not abuse its discretion in dismissing the petitioner's habeas petition as untimely pursuant to § 52-470, as the petitioner's argument essentially attacked the credibility determinations of the habeas court, and this court does not second-guess such credibility determinations on appeal. The habeas court did not abuse its discretion in denying the petitioner's petition for certification to appeal to this court, the petitioner having failed to show that the issues presented in his appeal were debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised deserved encouragement to proceed further. Argued November 19, 2024—officially released January 28, 2025

The petitioner, who previously had been convicted of murder, appealed following the denial of his petition for certification to appeal from the habeas court's judgment denying his habeas petition. He claimed, inter alia, that the court improperly concluded that his trial counsel, C, did not render ineffective assistance by failing to investigate and present the testimony of J, the petitioner's son, at the petitioner's criminal trial. Held: The habeas court abused its discretion in denying the petitioner's petition for certification to appeal, as this court disagreed with the habeas court's reasoning in rejecting the petitioner's ineffective assistance claim with respect to J's testimony, and, accordingly, this court addressed the merits of the petitioner's claims, concluding that the issues were debatable among jurists of reason and that a court could have resolved the issues in a differ- ent manner. The habeas court erred in concluding that C did not render ineffective assistance by failing to investigate and present the testimony of J, and, therefore, this court retained jurisdiction over the appeal and remanded the case to the habeas court to resolve the factual question of whether there was a reasonable probability that J's testimony exculpating the petitioner would have been credited by the jury if he had testified at the petitioner's criminal trial. Argued November 12, 2024—officially released February 4, 2025

The petitioner, who had been convicted of various crimes, including attempt to commit murder and kidnapping in the first degree, appealed following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claimed, inter alia, that the habeas court abused its discretion in denying his petition for certification to appeal. Held: The habeas court did not abuse its discretion in denying the petitioner's petition for certification to appeal to this court, as the claims raised on appeal lacked merit, and the petitioner failed to demonstrate that the habeas court's findings and conclusions were debatable among jurists of reason, that a court could have resolved the petitioner's claims in a different manner, or that there were any questions that deserved encouragement to pro- ceed further. Argued November 18, 2024—officially released February 4, 2025

The defendant state of Connecticut appealed from the trial court's judgment denying its motion to dismiss the count of the plaintiff's complaint asserted against it. The defendant claimed that the plaintiff's cause of action for personal injuries pursuant to statute (§ 13a-144) was barred by the doctrine of sovereign immunity because the defendant had abandoned that portion of the defective sidewalk where the plaintiff fell and, thus, the court lacked subject matter jurisdiction over her claim. Held: The trial court properly denied the motion to dismiss because the question of abandonment involved a disputed issue of fact, which was critical to the determination of whether the court had subject matter jurisdiction, and the court had discretion to postpone resolution of that question until after a trial on the merits. Argued November 14, 2024—officially released February 11, 2025

The plaintiff appealed from the trial court's judgment denying his application for a civil protection order against the defendant. The plaintiff claimed, inter alia, that the court violated his right to self-representation by limiting the manner in which he was permitted to present evidence in support of his application. Held: This court declined to address the merits of the plaintiff's claims because he failed to provide this court with an adequate record pursuant to the rule of practice (§ 61-10 (a)), as, instead of providing the complete transcript from the hearing on the application, he provided only self-selected excerpts. Submitted on briefs January 15—officially released February 11, 2025

The defendant appealed from the trial court's judgment granting the plain- tiff's motion, filed pursuant to statute (§ 46b-15 (g)), to extend an order of civil protection issued against the defendant. The defendant claimed that the court abused its discretion in extending the order because there was insufficient evidence that the defendant posed a continuous threat of present physical pain or physical injury to the plaintiff. Held: The trial court's decision to extend the order of civil protection was not an abuse of its discretion because the evidence was sufficient to show that the defendant posed a continuous threat of present physical pain or physical injury to the plaintiff, including evidence that the plaintiff resided in a home that was jointly owned by the parties, they were in the midst of a contested dissolution action, and there were criminal changes still pending against the defendant for an incident in which he assaulted the plaintiff. Argued November 18, 2024—officially released February 11, 2025

The plaintiff appealed from the trial court's judgment for the defendant, rendered following its grant of the defendant's motion for summary judgment on the plaintiff's complaint alleging, inter alia, employment discrimination based on disability. The plaintiff claimed, inter alia, that the court improperly concluded that a genuine issue of material fact did not exist with respect to whether the defendant's reasons for its termination of her employment were pretextual in nature. Held: The trial court properly granted the defendant's motion for summary judg- ment on the plaintiff's claim of disability discrimination, as it properly applied the burden shifting framework of McDonnell Douglas Corp. v. Green (411 U.S. 792) to evaluate the discrimination claim, and, after the defendant presented unrefuted evidence that its termination of the plaintiff's employ- ment was not based on her disability, the burden shifted to the plaintiff, and the plaintiff failed to present any evidence that the defendant's reasons for terminating her employment were pretextual. The trial court properly granted the defendant's motion for summary judg- ment on the plaintiff's claim that the defendant failed to provide her with a reasonable accommodation for her disability, as the plaintiff failed to present evidence to raise a genuine issue of material fact that she initiated a request for a reasonable accommodation or that the defendant had a position available to which she could have been reassigned prior to the termination of her employment. Argued September 9, 2024—officially released February 11, 2025

The petitioner, who had been convicted of several crimes, appealed, on the granting of certification, from the habeas court's judgment denying his habeas corpus petition. The petitioner claimed, inter alia, that the habeas court improperly rejected his claim that his prior habeas counsel, B, had rendered ineffective assistance, inter alia, by failing to allege that his criminal trial counsel, R, and his counsel on direct appeal, S, were ineffective in failing to raise a claim that the admission of statements by a jailhouse informant, M, at the petitioner's criminal trial violated the petitioner's sixth amendment right to confrontation under Crawford v. Washington (541 U.S. 36), which had been decided eleven days before his sentencing. The habeas court properly concluded that B did not render ineffective assistance by not raising the Crawford claim as to R because R did not perform deficiently by failing to move for a new trial in the eleven day period before the petitioner's sentencing, as no court during that time frame had further clarified how Crawford applied generally or specifically as to the statements of government informants such as M, and R's failure to advance a novel constitutional argument did not constitute ineffective assis- tance. This court concluded that B did not render ineffective assistance by not raising the Crawford claim as to S because, although S should have known that she could have raised the unpreserved Crawford claim on direct appeal in light of State v. Greene (274 Conn. 134), which had adjudicated an unpre- served Crawford claim several months before S filed her appellate brief, the habeas court properly concluded that any improper admission of M's statements constituted harmless error, as M's statements were unnecessary and cumulative of other independent evidence of the petitioner's guilt, and, because there was not a reasonable likelihood that the Crawford claim would have succeeded on appeal, the petitioner was not prejudiced by S's decision to forgo that claim. B did not render ineffective assistance by failing to claim that R had per- formed deficiently in making a tactical decision at trial not to assert that the state violated the petitioner's right to counsel under Massiah v. United States (377 U.S. 201) by using M to elicit incriminating statements about the petitioner, as it was M who had initiated contact with the state, and the state never asked M to collect information about the petitioner or promised or offered M any benefit for doing so. Argued September 5, 2024—officially released February 25, 2025

The plaintiffs, a corporation and five members of its board of trustees, appealed from the trial court's judgment dismissing, for lack of subject matter jurisdiction, their declaratory judgment action that sought, inter alia, an interpretation of the corporation's bylaws governing the appointment of trustees to its board. The plaintiffs, who had commenced the action after certain appointments to the board were made by the named defendant, the former archbishop of the diocese of Hartford, claimed that the court erred in determining that exercising jurisdiction over the action would have vio- lated the free exercise and establishment clauses of the first amendment to the United States constitution because adjudicating the dispute would have resulted in the excessive entanglement of government and religion. Held: The trial court improperly granted the defendants' motion to dismiss for lack of subject matter jurisdiction on the basis of its determination that the plaintiffs' action asked the court to entangle itself in matters of religious doctrine and practice and church polity, as there was no first amendment barrier prohibiting the court from applying neutral principles of state law governing corporations to the secular language of the corporation's bylaws for the purpose of declaring the process to be followed in appointing board members and determining the validity of certain appointments to the board. This court declined to adjudicate the defendants' alternative grounds for affirming the judgment, specifically, that the plaintiffs' lacked standing to bring the action, because doing so would have required a resolution of disputed jurisdictional facts, which require an evidentiary hearing, and, thus, the case was remanded to the trial court for consideration of those standing claims and a hearing thereon. Argued October 7, 2024—officially released February 25, 2025

Convicted of assault in the first degree, the defendant appealed. He claimed, inter alia, that the trial court improperly denied his motion to suppress certain statements he made to police officers while he was in a hospital receiving treatment for injuries he sustained in a physical altercation that led to his arrest and conviction. This court reversed the judgment of convic- tion and remanded the case for a new trial without addressing the other claims the defendant raised in his appeal. On the granting of certification, the state appealed to our Supreme Court, which determined that the defen- dant had not been in custody during any of his interactions with the police at the hospital and, therefore, his statements should not have been sup- pressed. The Supreme Court reversed the judgment of this court and remanded the case to this court with direction to consider the defendant's remaining claims on appeal, including his claim that the admission of his statements to the police violated his right to due process. Held: The trial court did not improperly deny the defendant's motion to suppress his statements to the police officers, as the state sufficiently demonstrated that the statements, under the totality of the circumstances, were voluntary and, thus, their admission at trial did not violate his right to due process. The trial court did not abuse its discretion in denying the defendant's motion for sanctions against the state for its failure to comply with certain of the court's discovery orders and its failure to disclose alleged impeachment evidence pursuant to Brady v. Maryland (373 U.S. 83) and Giglio v. United States (405 U.S. 150). This court declined the defendant's request to exercise its supervisory authority over the administration of justice to direct trial courts to conduct a formal, on the record inquiry during pretrial hearings to ascertain whether the state has exercised due diligence in locating evidence favorable to defendants, as the defendant failed to demonstrate that this case presented the rare circumstance in which traditional constitutional, statutory and pro- cedural limitations were inadequate to protect the rights of the defendant and the integrity of the judicial system. Submitted on briefs October 7, 2024—officially released February 25, 2025

The plaintiff union appealed from the judgment of the Superior Court denying its application to vacate an arbitration award in favor of the defendant city. The plaintiff claimed that the court improperly concluded that the arbitration panel did not exceed its powers when it determined that the defendant had just cause to terminate the employment of one of the plaintiff's members, an officer with the defendant's police department. Held: The trial court properly concluded that the arbitration award conformed to the parties' submission to the arbitration panel, the arbitration panel having decided an issue that the parties had given it the authority to decide. This court declined to review the plaintiff's claim that the trial court improp- erly refused to vacate the award because the arbitration panel's reliance on a certain expert opinion constituted a manifest disregard of the law, as the plaintiff abandoned that claim in the Superior Court and failed to adequately brief it before this court. Argued January 7—officially released February 25, 2025

The plaintiffs, all retired police officers who had previously worked for the defendant city, appealed from the trial court's judgment for the defendant on their complaint alleging, inter alia, breach of a collective bargaining agreement between the defendant and a union governing the defendant's police force. On appeal, the plaintiffs, former members of the union, claimed that the court improperly determined that the plaintiffs, as retirees and not active employees, were not entitled to retroactive wages pursuant to the terms of the collective bargaining agreement. Held: The trial court properly determined that the defendant did not breach the terms of the collective bargaining agreement, as the agreement unambigu- ously provided that, to be eligible for retroactive wages, a member of the union must be an active employee on the date of distribution, and all but one of the plaintiffs had retired prior to the first distribution date. Argued January 8—officially released February 25, 2025

The plaintiff appealed from the trial court's judgment granting the motion to strike filed by the defendant general contractor, G Co., with respect to a count of the complaint alleging negligence for an injury that occurred on May 24, 2020. The plaintiff claimed that the court improperly determined that the action was time barred pursuant to statute (§ 52-584). Held: The trial court properly concluded that the plaintiff's negligence claim against G Co. was time barred because it correctly determined, in accordance with Executive Order Nos. 7G and 10A, issued during the COVID-19 pan- demic, that the two year limitation period set forth in § 52-584, which had been suspended for a period of time during the pandemic, began to run on March 1, 2021, and expired on March 1, 2023, and it was undisputed that the plaintiff commenced the action on March 24, 2023. Argued February 4—officially released February 25, 2025