Volume 334 — Connecticut Reports

The petitioner, who had been convicted of felony murder in connection with the stabbing death of the victim inside the victim's home during what appeared to be a botched burglary, sought a writ of habeas corpus, claiming, inter alia, that the state deprived him of his due process right to a fair trial insofar as it failed to correct the trial testimony of L, a former director of the state police forensic laboratory, that a red substance on a towel found in the victim's home after the murder tested positive for blood when no such test had been conducted and when subsequent testing conducted in connection with the present habeas action revealed that the red substance was not in fact blood. The habeas court rendered judgment denying the habeas petition. With respect to the petitioner's due process claim, the court concluded that, because L mistakenly but honestly believed that the towel tested positive for blood and, thus, did not give perjured testimony, the burden was on the petitioner to demonstrate that there was a reasonable probability of a different verdict if the correct evidence had been disclosed. Applying this standard, the habeas court determined that L's testimony was immaterial because, among other things, the state's criminal case against the petitioner did not rely on forensic evidence. Rather, the state proved its case primarily on the basis of testimony from witnesses who testified as to certain incriminating statements that the petitioner had made to them, testimony from neighbors of the victim that they heard a loud vehicle in the vicinity around the time of the murder, when the petitioner and his alleged accomplice, B, had stolen and were driving a vehicle without a muffler, and the testimony of the petitioner's girlfriend, who contradicted the petitioner's statements to the police regarding his whereabouts on the night of the murder. On the granting of certification, the petitioner appealed, claiming that the habeas court applied the incorrect standard for determining whether the petitioner was entitled to a new trial and that, upon application of the correct standard, which required the respon- dent, the Commissioner of Correction, to establish beyond a reasonable doubt that L's incorrect testimony was immaterial, he was entitled to a new trial. Held that the state's failure to correct L's incorrect testimony that there was blood on the bathroom towel deprived the petitioner of a fair trial, and the habeas court's judgment was reversed, as it was predicated on a determination that the petitioner was not entitled to a new trial because L's incorrect testimony was immaterial: the habeas court incorrectly concluded that the respondent was not required to establish beyond a reasonable doubt that the state's failure to correct L's incorrect testimony was immaterial, as controlling case law made it clear that such a standard applies whenever the state fails to correct testimony that it knew or, as in the present case, should have known to be false; moreover, L, as the representative of the state police forensic laboratory, should have known that the towel had not been tested for blood, as he had an affirmative obligation to review any relevant test reports before testifying so as to reasonably ensure that his testimony would accurately reflect the findings of those tests, and L's incorrect testimony must be imputed to the prosecutor who, irrespective of whether he elicited that testimony in good faith, is deemed to be aware of any and all material evidence in the possession of any investigating agency, including the state police forensic laboratory; furthermore, the respondent did not meet his burden of establishing beyond a reasonable doubt that L's incorrect testimony was immaterial, as L's testimony concerning the towel was elicited for the purpose of explaining why no evidence of blood connecting the petitioner to the murder was found, the state's case against the petitioner was not so strong as to take it out of the purview of cases in which, as a result of the state's use of testimony that it knew or should have known was false, reversal is virtually automatic, and the state's failure to correct L's testimony was material because it deprived the petitioner of the opportunity to impeach certain other testimony by L regarding how it was possible that the petitioner and B stabbed the victim twenty-seven times in a narrow space and tracked blood all over the victim's home but somehow managed not to leave any trace of blood in their getaway vehicle, which showed no signs of having been cleaned when the police recovered it a few days after the murder. Argued October 11, 2018—officially released June 14, 2019

The petitioner, who had been convicted of felony murder in connection with the stabbing death of the victim, filed a petition for a new trial based on a claim of newly discovered DNA and other evidence. Thereafter, the petitioner's case was consolidated with the petitioner's closely related habeas action. The habeas court denied the petition for a new trial, and the petitioner appealed, claiming, inter alia, that the habeas court incorrectly determined that the newly discovered DNA evidence did not warrant a new trial. Held that this court having determined in Henning v. Commissioner of Correction (334 Conn. 1), which addressed the petitioner's appeal from the denial of his habeas petition, that the peti- tioner is entitled to a writ of habeas corpus granting him a new trial insofar as the state deprived him of a fair trial by failing to correct certain incorrect trial testimony, the petitioner's appeal from the denial of his petition for a new trial was rendered moot, and, accordingly, the appeal was dismissed. Argued October 12, 2018—officially released June 14, 2019

The petitioner, who had been convicted of felony murder in connection with the stabbing death of the victim inside the victim's home during what appeared to be a botched burglary, sought a writ of habeas corpus, claiming, inter alia, that the state deprived him of his due process right to a fair trial insofar as it failed to correct the trial testimony of L, a former director of the state police forensic laboratory, that a red substance on a towel found in the victim's home after the murder tested positive for blood when no such test had been conducted and when subsequent testing conducted in connection with the present habeas action revealed that the red substance was not in fact blood. The habeas court rendered judgment denying the habeas petition. With respect to the petitioner's due process claim, the court concluded that, because L mistakenly but honestly believed that the towel tested positive for blood and, thus, did not give perjured testimony, the burden was on the petitioner to demonstrate that there was a reasonable probability of a different verdict if the correct evidence had been disclosed. Applying this standard, the habeas court determined that L's testimony was immaterial because, among other things, the state's criminal case against the petitioner did not rely on forensic evidence but, rather, on the testimony of numerous lay witnesses. On the granting of certification, the petitioner appealed, claiming that the habeas court applied the incorrect standard for determining whether the petitioner was entitled to a new trial and that, upon application of the correct standard, which required the respondent, the Commissioner of Correction, to establish beyond a reasonable doubt that L's incorrect testimony was immaterial, he was entitled to a new trial. Held that, on the basis of this court's analysis in the companion case of State v. Henning (334 Conn. 1), this court concluded that the state's failure to correct L's incorrect testimony that there was blood on the bathroom towel deprived the petitioner of a fair trial, and the habeas court's judgment was reversed, as it was predicated on a determi- nation that the petitioner was not entitled to a new trial because L's incorrect testimony was immaterial: the habeas court incorrectly con- cluded that the respondent was not required to establish beyond a reasonable doubt that the state's failure to correct L's incorrect testi- mony was immaterial, as controlling case law made it clear that such a standard applies whenever the state fails to correct testimony that it knew or, as in the present case, should have known to be false; moreover, L, as the representative of the state police forensic laboratory, should have known that the towel had not been tested for blood, as he had an affirmative obligation to review any relevant test reports before testifying so as to reasonably ensure that his testimony would accurately reflect the findings of those tests, and L's incorrect testimony must be imputed to the prosecutor who, irrespective of whether he elicited that testimony in good faith, is deemed to be aware of any and all material evidence in the possession of any investigating agency, including the state police forensic laboratory; furthermore, the respondent did not meet his burden of establishing beyond a reasonable doubt that L's incorrect testimony was immaterial, as the state apparently offered L's testimony concerning the towel to demonstrate the petitioner's efforts to conceal evidence of the murder before he left the victim's home, the jury reasonably could have relied on the state's theory regarding the petitioner's use of the towel to conceal evidence, the state's case against the petitioner was not so strong as to take it out of the purview of cases in which, as a result of the state's use of testimony that it knew or should have known was false, reversal is virtually automatic, and the state's failure to correct L's testimony was material because it deprived the petitioner of the opportunity to impeach certain other testimony by L regarding how it was possible that the petitioner and his alleged accomplice, H, stabbed the victim twenty-seven times in a narrow space and tracked blood all over the victim's home but somehow managed not to leave any trace of blood in their getaway vehicle, which showed no signs of having been cleaned when the police recovered it a few days after the murder. Argued October 11, 2018—officially released June 14, 2019

The petitioner, who had been convicted of felony murder in connection with the stabbing death of the victim, filed a petition for a new trial based on a claim of newly discovered DNA and other evidence. Thereafter, the petitioner's case was consolidated with the petitioner's closely related habeas action. The habeas court denied the petition for a new trial, and the petitioner appealed, claiming, inter alia, that the habeas court incorrectly determined that the newly discovered DNA evidence did not warrant a new trial. Held that this court having determined in Birch v. Commissioner of Correction (334 Conn. 37), which addressed the petitioner's appeal from the denial of his habeas petition, that the peti- tioner is entitled to a writ of habeas corpus granting him a new trial insofar as the state deprived him of a fair trial by failing to correct certain incorrect trial testimony, the petitioner's appeal from the denial of his petition for a new trial was rendered moot, and, accordingly, the appeal was dismissed. Argued October 12, 2018—officially released June 14, 2019

Pursuant to statute (§ 9-329a [a]), ''[a]ny (1) elector . . . aggrieved by a ruling of an election official in connection with any primary . . . [or] (2) elector . . . who alleges that there has been a mistake in the count of the votes cast at such primary . . . may bring [a] complaint to . . . the Superior Court for appropriate action.'' Pursuant further to statute (§ 9-329 [b]), a court may order a new primary if it finds that, ''but for the error in the ruling of the election official, [or] any mistake in the count of the votes . . . the result of [the primary election] might have been different and [the court] is unable to determine the result of such primary.'' The plaintiffs, three electors in the 2019 Democratic primary election for municipal office in the city of Bridgeport, brought an action pursuant to § 9-329a (a), challenging the results of that election and seeking an order directing a new primary election on the basis of, inter alia, various alleged improprieties in the handling of absentee ballots. The plaintiffs claimed that certain individuals associated with the defendants, who are certain Bridgeport election officials and certain candidates for elected office in the primary, had engaged in improper primary election activity and violated certain state election laws by virtue of, inter alia, the alleged misrepresentation of absentee voting eligibility and the improper handling of absentee ballots. As a result of the alleged improprieties, the plaintiffs claimed that they were aggrieved by the ruling of an election official within the meaning of § 9-329a (a) (1) and that there had been a mistake in the count of the votes within the meaning of § 9-329a (a) (2). The defendants moved to dismiss the plaintiffs' complaint, claiming, inter alia, that the plaintiffs lacked standing because they were not personally aggrieved by the ruling of any election official. The trial court granted the motion as to the claims brought under § 9-329a (a) (1), concluding that the plaintiffs were not aggrieved by any of the claimed election violations because they had not suffered a personal or individual injury that was different from that suffered by any other elector eligible to vote in the primary. The court, however, denied the motion to dismiss as to the claims brought under § 9-329a (a) (2). Following an expedited trial to the court, the court concluded that, although there were certain irregularities in the handling of absentee ballots, the plaintiffs had not established that a mistake in the count of the votes cast in the primary election entitled them to an order directing a new primary pursuant to § 9-329 (b) because it was unable to determine the extent to which the improper conduct had affected the primary as a whole. Accordingly, the trial court rendered judgment for the defendants. Thereafter, the plaintiffs requested that the trial court certify two questions of law to this court for review pursuant to statute (§ 9-325), and, upon the trial court's granting of the plaintiffs' request, the plaintiffs appealed to this court. Held: 1. The plaintiffs' appeal challenging the result of the primary election, which involved the selection of Democratic candidates for the general election, was not moot, even though the general election had already occurred, because this court could afford the plaintiffs practical relief by ordering a new general election: if this court were to reverse the trial court's judgment, invalidate the results of the primary election, and deem its decision effective as of the time this appeal was heard, which was before the general election occurred, then the results of the general election necessarily would be invalid because the candidates selected in the invalidated primary election would not have been validly elected candi- dates for the general election; accordingly, this court concluded that § 9-329a (b), which does not place any time restrictions on when a court may issue an order directing a new primary election, implicitly authorizes a court to order a new general election if the earlier general election was invalidated by operation of a court order invalidating the underlying primary election. 2. The trial court correctly determined that the plaintiffs lacked standing to bring their claims pursuant to § 9-329a (a) (1) and, accordingly, properly dismissed those claims: in order to have standing to bring a claim pursuant to § 9-329a (a) (1), a party must establish that he or she has a specific, personal and legal interest in the subject matter of the contro- versy, as opposed to a general interest that members of the community share; moreover, the plaintiffs failed to demonstrate that they had a specific, personal interest that was affected by the improprieties in the handling of absentee ballots, as the only harm they claimed to have suffered was that the primary election was unfair as a result of those improprieties, and an unfair election affects every voter and constitutes an injury to the general interest shared by all members of the community, which was insufficient to establish standing. 3. The plaintiffs could not prevail on their claim that the trial court applied an improper legal standard in determining that they had failed to estab- lish that a mistake in the count of the votes cast in the primary election entitled them to an order directing a new primary election under § 9- 329a (b): to be entitled to an order directing a new primary election under § 9-329a (b), a plaintiff must demonstrate that there were substantial violations of § 9-329a (a) and that, as a result of those violations, the reliability of the result of the election is seriously in doubt, and, when the trial court's memorandum of decision was read in its entirety, it was clear that the trial court properly understood and applied the correct standard; moreover, under that standard, the trial court correctly con- cluded that the plaintiffs had failed to establish that the reliability of the result of the primary election was seriously in doubt, the plaintiffs having failed to challenge any of the trial court's factual findings or legal conclusions as to which absentee ballots should have been counted, and having failed to present any evidence that there was a serious risk that any of the losing candidates in the primary election would have won in the absence of the alleged improprieties. Argued November 4—officially released November 29, 2019

The plaintiff sought to recover damages from the defendants, B and two limited liability companies solely owned by B, C Co. and T Co., for their mismanagement in connection with certain business transactions, alleging, inter alia, breach of contract, fiduciary duty, and the implied covenant of good faith and fair dealing, and violations of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) and the Connecti- cut Limited Liability Company Act (CLLCA) ([Rev. to 2017] § 34-100 et seq.). The plaintiff also sought the judicial dissolution of R Co. and F Co. R Co. was a limited liability company owned equally by T Co. and S, the plaintiff's son, and had been formed for the purpose of conducting a commercial real estate lending business. S later transferred his 50 percent interest in R Co. to the plaintiff. F Co., a limited liability company owned by the plaintiff and B, was created to act as the controlling general partner of a related fund, which provided a vehicle for pooling outsider investor capital for R Co.'s loans. The plaintiff agreed to source loans, secure investors and financers, and provide bridge financing, and, in return, the plaintiff would receive certain profits and fees from the loan transactions. When the plaintiff and S rejected B's request for a larger share of the profits, B created C Co. in order to divert outsider capital away from R Co., negatively affecting R Co.'s profits. B also allegedly misallocated investor profits, improperly increased invest- ments by his insider investors and improperly charged R Co. for expenses incurred by T Co. After the plaintiff initiated the present action, the parties agreed to hire a joint, court-appointed fiduciary, A Co., to wind up the fund and F Co. A Co. issued a report detailing the lack of internal controls and concluded that R Co., the fund, and F Co. had underpaid the investors and principals, particularly the plaintiff. At trial, the court allowed W, a partner of A Co., to testify about his findings and admitted A Co.'s report into evidence. Following a bench trial, the court rendered judgment for the plaintiff on four of his derivative counts alleging, on behalf of R Co., breach of contract against T Co., and violations of CUTPA against all of the defendants, and, on behalf of R Co. and F Co., breach of fiduciary duty against T Co. The trial court rendered judgment for the plaintiff on four of his direct counts alleging breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty by T Co. and B for their failure to repay a portion of a loan funded by the plaintiff's single-member limited liability company, S Co. The trial court found against the plaintiff on his claim that B should be required to reimburse the plaintiff for fees relating to tax and accounting services provided by A Co. but awarded the plaintiff attorney's fees in connection with his derivative CUTPA claim. On appeal, the defendants claimed that the trial court lacked subject matter jurisdiction to review the plaintiff's derivative claims because CLLCA did not provide a derivative remedy, and, in the absence of a statutory remedy, the common law did not afford a member or manager of a limited liability company derivative standing because CLLCA, the statutory scheme that created the limited liability company structure, exclusively governs such claims. The defendants also claimed that the trial court incorrectly rendered judgment for the plaintiff on his direct claims concerning the failure of B and T Co. to repay one of the plaintiff's loans to R Co. because the plaintiff lacked standing to seek repayment on the ground that S Co. provided the investment and was the proper party to have asserted that claim. The defendants further claimed on appeal that the trial court had abused its discretion in admitting W's testimony relating to certain of the plaintiff's derivative claims and that the trial court improperly awarded attorney's fees associated with both the plaintiff's CUTPA and non- CUTPA claims rather than those fees attributable to only the CUTPA claims. The plaintiff cross appealed, claiming that the court had abused its discretion in declining to order B to reimburse R Co. for the fees incurred for work performed by W and another accountant retained by the plaintiff or to hold a hearing for the purpose of apportioning those fees. Held: 1. This court concluded that, in the absence of a provision in the operating agreements of R Co. and F Co. authorizing the filing of a derivative action, the plaintiff lacked standing to bring his derivative claims on behalf of those companies because neither CLLCA nor the common law provided for a derivative remedy when the plaintiff commenced the present action, and, accordingly, the trial court improperly exercised subject matter jurisdiction over the plaintiff's derivative claims: CLLCA ([Rev. to 2017] § 34-187) authorized only members or managers to collec- tively commence an action in the name of the limited liability company upon a requisite vote of disinterested members or managers, the com- mon law of this state does not recognize limited liability companies, which were created by the enactment of CLLCA, and recognition of a common-law remedy would conflict with or frustrate the purpose of CLLCA; moreover, because the plaintiff lacked standing to assert its derivative CUTPA claim, the trial court's order awarding the plaintiff attorney's fees and costs under CUTPA was vacated, and this court did not need to address the issues of whether the trial court properly admit- ted W's testimony and whether the trial court incorrectly apportioned the plaintiff's award of attorney's fees between his CUTPA and non- CUTPA claims. 2. The plaintiff had standing to bring direct claims with respect to the failure of B and T Co. to repay a portion of S Co.'s loan to R Co., and, accordingly, the trial court properly exercised subject matter jurisdiction over the plaintiff's direct claims: this court concluded that, when the member of a single-member limited liability company seeks to remedy a harm suf- fered by the company, the trial court may, in its discretion, permit the member to bring an action raising derivative claims as a direct action and may order an individual recovery if it finds that to do so will not unfairly expose the company or defendants to a multiplicity of actions, will not materially prejudice the interests of creditors of the company, and will not negatively impact other owners or creditors of the company by interfering with a fair distribution of the recovery among all interested parties; the record revealed that there was no dispute that the plaintiff was the sole member of S Co. and that the loan from S Co. was funded with the plaintiff's personal funds, there was no evidence that creditors of S Co. existed that would have been prejudiced by the plaintiff's recovery, and the trial court's decision to permit the plaintiff to recover directly would not lead to a multiplicity of actions or interfere with a fair distribution of recovery with respect to other interested parties. 3. The trial court did not abuse its discretion in declining to order the defendants to reimburse the plaintiff for the fees he incurred from work performed by W and another accountant retained by the plaintiff to effectuate the winding up process; on the basis of the numerous findings made by the trial court, including the discrepancy of the experience between the parties and the fact that the plaintiff did not timely protect his interests insofar as he failed to hire professional legal and accounting experts to ensure that the management duties of the companies were properly performed, it was reasonable for the court to determine that the plaintiff's neglect contributed to the complex untangling that W and the other accountant faced during the winding up process. (Three justices concurring in part and dissenting in part in one opinion) Argued December 20, 2018—officially released December 17, 2019

Convicted, after a jury trial, of the crimes of assault in the first degree as an accessory and conspiracy to commit assault in the first degree, the defendant, an African-American, appealed to the Appellate Court, claim- ing that the prosecutor engaged in racially disparate treatment during jury selection, in violation of Batson v. Kentucky (476 U.S. 79), by excusing a prospective juror, R, on the basis of his employment history, even though the prosecutor accepted two other venirepersons, I and G, whom the defendant claimed were nonminority venirepersons with work restrictions similar to those of R. The Appellate Court affirmed the judgment of the trial court and concluded that the record was inadequate to review the defendant's unpreserved Batson claim because, inter alia, the transcripts of the voir dire did not indicate the racial composition of the empaneled jury. The Appellate Court also found that, although the trial court had, sua sponte, remarked that R was not the same race as the defendant, there was nothing in the record to indicate the race or ethnicity of either R or I, and, without that information, the court could not engage in a disparate treatment analysis under Batson. On the granting of certification, the defendant appealed to this court. Held that the defendant could not prevail on his claim that the Appellate Court incorrectly concluded that the failure of the record to indicate the racial composition of the empaneled jury rendered it inadequate to review his Batson claim: this court adopted the Appellate Court's well reasoned opinion as a proper statement of the certified issue and the applicable law concerning that issue and, accordingly, affirmed the Appellate Court's judgment; moreover, this court agreed with the state's alternative ground for affirmance that the trial court's finding that the prosecutor did not commit purposeful discrimination in exercising a peremptory challenge to strike R was not clearly erroneous; furthermore, with respect to the defendant's request that this court exercise its super- visory authority over the administration of justice to require that pro- spective jurors identify their race prior to jury selection, this court anticipated that such a proposal would be addressed by the Jury Selec- tion Task Force that the Chief Justice will appoint, pursuant to this court's decision in the companion case of State v. Holmes (334 Conn. ), to suggest changes to court rules, policies, and legislation necessary to ensure that Connecticut juries are representative of the state's diverse population. Argued January 16—officially released December 24, 2019

Pursuant to statute (§ 51-183c), a judge who has tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court, may not again try the case. The defendant property owner appealed from the trial court's judgment rendered following a hearing in damages that was held on remand in connection with the plaintiff conservation trust's claim that the defen- dant had wilfully violated a conservation easement in contravention of the statute (§ 52-560a [b]) prohibiting encroachment on such an ease- ment. After a trial to the court, which found that the defendant had violated the easement, the court ordered the defendant to restore the property to its prior condition in accordance with a plan proposed by the plaintiff's expert at a cost of approximately $100,000. The court also awarded the plaintiff $350,000 in punitive damages pursuant to § 52-560a (d), which permits damages of up to five times the cost of restoration, and ordered further hearings to address the specific manner and timing of implementation of the restoration plan. At a subsequent hearing, at which experts for both parties proposed differing courses of action to effectuate restoration, the trial court ordered a new restoration plan but did not take evidence as to the cost of the new restoration plan or revisit its punitive damages award. The defendant thereafter appealed, and this court concluded that, although the trial court had properly found that the defendant violated the easement and that the new restora- tion plan was authorized and supported by sufficient evidence, the trial court's punitive damages award under § 52-560a (d) lacked the requisite evidentiary foundation. Specifically, that award had been compliant with § 52-560a (d) at the time it was initially issued, as it was based on evidence that restoration costs would be approximately $100,000, but, when the trial court adopted the new restoration plan with no evidence of its cost, the ratio of actual damages to punitive damages could not be determined. Accordingly, this court reversed the trial court's judgment as to damages and remanded the case to the trial court with direction to take evidence as to the cost of the new plan to fashion a new damages award that was within the framework of § 52-560a (d). On remand, the defendant filed a motion to disqualify the trial judge, K, from further participation in the proceedings pursuant to § 51-183c, which K denied. K concluded that he was not disqualified because this court had not ordered a new trial but reversed only a portion of the trial court's judgment and remanded on two precise matters, affirming the judgment in all other respects. K also denied the defendant's motions to open the judgment and to allow new evidence regarding the implementation of the restoration plan, and, after the parties presented expert testimony as to the cost of the new restoration plan, K found that its cost was $242,244 and again awarded $350,000 in punitive damages. On the defen- dant's appeal, held: 1. K was required to disqualify himself from the proceedings held on remand after the first appeal, this court having determined that its decision in the first appeal reversing the trial court's judgment in part and remanding the case to the trial court with direction to take evidence and to recalcu- late damages fell within the ambit of § 51-183c and, therefore, required a different trial judge to preside over the case on remand: this court construed § 51-183c in a manner to advance its policy of requiring the disqualification of a judge in order to protect against a lack of impartiality or an appearance thereof and concluded that § 51-183c was applicable when a judgment is reversed in part and fewer than all of the issues must be retried, including situations, such as in the present case, in which the judgment is reversed as to damages and remanded for a new trial only on the issue of damages; accordingly, the trial court's judgment was reversed with respect to the award of damages, and the case was remanded for a recalculation of damages, before a different judge, con- sistent with this court's opinion in the first appeal. 2. This court declined to address the defendant's claims that K improperly denied her motions to open the judgment and to allow new evidence and improperly awarded the plaintiff $350,000 in punitive damages on the ground that the plaintiff failed to prove the cost of the new restoration plan, as those claims could not be analyzed or adjudicated independently of the disqualification issue because they emanated from rulings that resulted from the same trial judge's improper presiding over the proceed- ings on remand; a new judge on remand will make his or her own determinations regarding the merits of the motion to open and what evidence will or may be submitted in support of the claims and defenses raised by the parties, and the plaintiff may adopt a different litigation strategy involving different evidence on remand. Argued May 2—officially released December 31, 2019

Convicted of the crime of conspiracy to commit robbery in the first degree in connection with his involvement, along with that of four other cocon- spirators, in the shooting death of a drug dealer, the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court's failure to instruct the jury on the requisite intent necessary to find him guilty of that offense constituted plain error. The trial court had instructed the jury on the elements of the substantive crime of robbery in the first degree, including the element that one or more participants in the robbery be armed with a deadly weapon, and that, to find the defendant guilty of conspiracy, it had to find that the defendant specifically intended to commit the substantive crime. On appeal, the defendant claimed that the court's instructions were plainly erroneous because they relieved the state of its burden of proving, as required by State v. Pond (138 Conn. App. 228), that he specifically intended that every element of the conspired offense be accomplished because the court did not expressly instruct the jury that, to return a guilty verdict, it must find that he had agreed and specifically intended that he or one of his coconspirators would be armed with a deadly weapon. The Appellate Court affirmed the judgment of conviction, concluding, inter alia, that the defendant implicitly had waived his unpreserved claim of instruc- tional error and, therefore, was not entitled to relief under the plain error doctrine. Thereafter, this court granted the defendant's petition for certification to appeal and remanded the case to the Appellate Court with direction to reconsider the defendant's plain error claim in light of this court's decision in State v. McClain (324 Conn. 802), which held that an implicit waiver does not foreclose appellate review of unpreserved claims of instructional error under the plain error doctrine. On remand, the Appellate Court again affirmed the judgment of convic- tion, concluding that the defendant had failed to establish that an obvious error had occurred or that a manifest injustice would result from failing to reverse his conviction. On the granting of certification, the defendant appealed to this court. Held that the defendant could not prevail on his claim that the trial court committed plain error by failing to instruct the jury that, to find the defendant guilty of conspiracy to commit robbery in the first degree, it had to find that he intended and specifically agreed that he or another participant in the robbery would be armed with a deadly weapon; although it is the better practice for the trial court to instruct the jury in direct terms that the defendant must have specifically intended each element of the offense, this court could not conclude that the trial court committed an error so clear or obvious as to necessitate reversal because, when read as a whole, the jury charge, which instructed the jury on the intent requirement for conspiracy to commit robbery in the first degree and set forth the elements of the substantive crime of first degree robbery, was sufficient to guide the jury to a correct verdict and logically required the jury to find that the defendant had agreed and specifically intended that he or another participant in the robbery would be armed with a deadly weapon. Argued September 23—officially released December 31, 2019

The respondent father appealed to the Appellate Court from the trial court's judgment terminating his parental rights with respect to his minor child, T. The respondent had been incarcerated when T was two years old, and T had last spoken with the respondent around that time. While the respondent was incarcerated, T was placed in the custody of the petitioner, the Commissioner of Children and Families, after the peti- tioner became aware that T's mother, who was the custodial parent, was experiencing mental health and substance abuse issues. The petitioner thereafter filed a petition to terminate the respondent's parental rights on the statutory (§ 17-112 [j] [3] [D]) ground that he had no ongoing parent-child relationship with T. In terminating the respondent's parental rights with respect to T, the trial court found that T, who was six years old at the time of the termination hearing, did not know who his father was or have any positive parental memories of the respondent. On appeal, the respondent claimed, inter alia, that the trial court, in conclud- ing that he had no ongoing parent-child relationship with T, failed to consider the petitioner's interference with the development of that rela- tionship and his own positive feelings toward T in light of T's young age at the time the respondent was incarcerated. The Appellate Court disagreed and affirmed the trial court's judgment, concluding that there was no evidence that the respondent sought visitation with or attempted to contact T while he was incarcerated, and that there was no evidence that T's mother, who had custody of T during that period, had interfered with the development of an ongoing parent-child relationship, or that the petitioner's alleged interference led to the lack of such relationship. On the granting of certification, the respondent appealed to this court. Held that the Appellate Court properly upheld the trial court's termina- tion of the respondent's parental rights on the ground that there was clear and convincing evidence of a lack of an ongoing parent-child relationship, and the virtual infancy and interference exceptions to the lack of an ongoing parent-child relationship ground for termination did not apply in this case: at the time of the termination hearing, T had no knowledge or memory of the respondent as his father; moreover, the virtual infancy exception did not apply because, although T was two years old when he was separated from the respondent as a result of his incarceration, it is the child's age at the time of the termination hearing that controls for purposes of that exception, and T was six years old at the time of the respondent's termination hearing and able to communi- cate that he lacked present memories of the respondent as his parent; furthermore, the respondent could not prevail on his claim that the interference exception applied on the basis of the apparent inability of T's mother to foster a relationship between T and the respondent during the respondent's incarceration, as that exception is triggered only by the conduct of the petitioner rather than that of a third party or some other external factor that occasioned the separation between parent and child. Argued September 18—officially released December 31, 2019

The plaintiff, whose marriage to the defendant previously had been dis- solved, appealed to the Appellate Court from certain postjudgment orders of the trial court modifying alimony, finding her in contempt for her wilful violation of a court order, and awarding, inter alia, attorney's fees to the defendant. After the trial court granted the plaintiff's motion for modification of alimony, increased the amount of monthly alimony and extended the duration of those payments, the plaintiff moved to open and vacate the judgment on the ground that the defendant had failed to disclose a pending employment offer at considerably higher compensation. The trial court granted the motion and opened the judg- ment for the purpose of hearing new evidence. Thereafter, the parties and their counsel appeared before the court, requesting to place on the record an oral stipulation regarding alimony payments and other terms that they had negotiated. The stipulation required the defendant to increase his alimony payments, with a provision that the plaintiff could assign those payments to a special needs trust, under which the defen- dant was to be a residuary beneficiary. The stipulation obligated the plaintiff to draft the special needs trust and to secure or endeavor to secure a legal opinion that the trust arrangement would not affect the defendant's right to deduct the alimony payments from his federal tax obligations. Following the trial court's canvass of the parties, the court approved and ordered the stipulation, and, subsequently, the defendant moved for an order, asking the court to approve a written embodiment of the oral stipulation prepared by his counsel, to which the plaintiff objected. The plaintiff claimed, among other things, that the parties were unaware when they drafted the stipulation that it was impossible to create a legally valid special needs trust or to afford the defendant a tax deduction for the alimony according to the terms of the stipulation and, therefore, that the defendant's motion for order should be denied and the stipulation should be vacated. The plaintiff then filed a motion to open and vacate the court's order approving the stipulation, to which the defendant objected. In support of her motion, the plaintiff asserted that she had received an opinion from an accountant who had deter- mined that the defendant's alimony payments would not be deductible under the terms of the stipulation. Following several hearings, the court presented the parties with its memorandum of decision on the postjudg- ment motions resolved by stipulation, which reduced the oral stipulation to writing. The plaintiff objected on the ground that the decision did not reflect her counsel's statement that, if the parties were unable to obtain an opinion that confirmed that the alimony payments were deductible and that the plaintiff would receive those payments as con- templated, the plaintiff would not agree to the stipulation. The trial court responded that a binding agreement had been approved and ordered and that it was not contingent in nature. The plaintiff declined to with- draw her motion to open, and the court declined to deny it because there had not yet been a hearing on the merits but stated that the motion was procedurally defective. The defendant then filed a motion for sanctions and for contempt, claiming that, after settling years of litigation by stipulating to the modification, the plaintiff failed to meet her obligations under that stipulation and contested her own settlement through improper procedural mechanisms. In connection with his request for sanctions, the defendant sought an award of attorney's fees and expert fees incurred for defense against the plaintiff's motions, and he asked that the court find the plaintiff in contempt for her wilful failure to create the special needs trust and to seek the legal opinion required by the order approving the stipulation, as well as for intention- ally not acting in good faith to implement that order. He requested that the order of contempt include an award of expenses he had incurred in defending against the plaintiff's motion to open and in employing an expert to draft the special needs trust that the plaintiff had failed to produce. The trial court thereafter granted the defendant's motion for contempt and for sanctions, finding by clear and convincing evidence that the plaintiff had wilfully violated the trial court's order approving the stipulation. The court awarded the defendant attorney's fees and expert fees in an amount corresponding to all litigation expenses incurred by the defendant after the date on which the trial court entered the order approving the stipulation. On appeal to the Appellate Court, that court upheld the trial court's decision on the postjudgment motions resolved by stipulation but reversed its decision with respect to the contempt order, concluding that, in light of the undisputed fact that the plaintiff made at least some effort to obtain the legal opinion she was required to secure or endeavor to secure, it was left with a definite and firm conviction that the trial court's finding of contempt was clearly erroneous. In light of that conclusion, the Appellate Court did not address the reasonableness of the award of attorney's fees and expert fees. From the Appellate Court's judgment, the defendant, on the granting of certification, appealed, claiming that the plaintiff did not comply with the legal opinion requirement but that, in any event, the trial court's award was based on a broader course of conduct than the failure to secure the legal opinion. After oral argument, and in response to a request from this court, the trial court issued an articulation, stating, inter alia, that its order was based both on the plaintiff's wilful contempt of its order approving the stipulation and on the plaintiff's subsequent litigation misconduct, which caused undue delay and expense to the defendant. As the basis for its finding of wilful contempt, the trial court noted, inter alia, that the plaintiff violated three provisions in the parties' stipulation, the first prohibiting the parties from disparaging each other, the second requiring the plaintiff to obtain the legal opinion, and the third limiting the parties' disclosure or publication of the settlement. The court cited, as an additional basis for its finding of wilful contempt, the parties' representation at the hearing on the order approving the stipulation that the parties would work together to reduce the stipulation to writing and that, in the event of a dispute, the parties would seek the court's involvement. Held: 1. The trial court's order of contempt must be reversed, as none of the bases on which the court relied for that order supported it, and, accordingly, this court upheld the Appellate Court's reversal of the contempt order: with respect to the plaintiff's purported violation of the nondisparage- ment and nonpublication provisions of the stipulation, the defendant did not advance either ground in his motion for contempt or at the hearing on that motion, the articulation did not identify any particular statement that violated either provision, and to allow the order of con- tempt to rest on either basis would contravene the plaintiff's due process rights; moreover, the trial court's reliance in its articulation on the undisputed fact that there was no letter from an accountant in the court file or submitted into evidence as proof of the plaintiff's wilful violation of the stipulation's provision requiring the plaintiff to secure or endeavor to secure a legal opinion was problematic, as there was a draft written opinion by an accountant appended to one of the plaintiff's motions, the court's requirement that the plaintiff prove the existence of the letter misallocated the burden of proof because the defendant had the burden, as the party moving for the contempt order, to prove by clear and convincing evidence that the plaintiff wilfully violated this provision, and the defendant offered no testimony regarding the availability of, or the plaintiff's failure to undertake good faith efforts to obtain, the legal opinion; furthermore, the court's finding of contempt on the basis of the parties' representation that they would work together to reduce the oral stipulation to writing was also problematic, as the defendant did not seek a contempt order on this ground, thereby raising due process concerns, the defendant did not offer any evidence to prove contempt on this basis and therefore could not meet his burden of proof, and the pleadings did not support the trial court's conclusion, as the defendant's motion for order did not allege that the defendant's counsel made any effort to work with the plaintiff or her counsel to memorialize the stipulation before the defendant filed his motion for contempt, and, insofar as the stipulation obligated the parties to bring disputes over its wording to the trial court's attention, the record clearly revealed that the plaintiff did so. 2. Insofar as the trial court's award of attorney's fees and expert fees was based on litigation misconduct, it lacked the requisite findings, and, accordingly, this court remanded the case for further proceedings on the defendant's motion for sanctions; although attorney's fees generally are not awarded to the successful party in the absence of a contractual or statutory exception, a court has inherent authority to award attorney's fees when the losing party has acted in bad faith, but the trial court in the present case failed to make the findings necessary to support its award for litigation misconduct, that is, that the plaintiff acted in bad faith and did not advance any colorable claims. Argued February 19, 2019—officially released January 14, 2020

The plaintiff sought to foreclose a mortgage executed by the defendant T in support of her personal guarantee of a promissory note. The named defendant had obtained a construction loan from the original lender, S Co., and executed a promissory note in connection with that transaction. Subsequently, the note was modified, and T executed a limited guarantee in favor of S Co. ensuring payment of the amount due under the modified note. In order to secure T's guarantee, T executed a mortgage in favor of S Co. on certain of T's real property. S Co. subsequently assigned T's mortgage and interest in the note to the plaintiff. At that time, S Co. and the plaintiff executed an allonge endorsing the note to the plaintiff as the obligee. After the named defendant defaulted on the note, the plaintiff sought, inter alia, to collect on T's guarantee and to foreclose the mortgage on T's property. At the foreclosure trial, the plaintiff introduced into evidence an exhibit that documented its computation of the amount then due on the note, which incorporated an initial entry concerning the original balance on the note that was based on information that S Co. had provided to the plaintiff in conjunction with S Co.'s sale of the note. The trial court rendered a judgment of strict foreclosure, and T appealed to the Appellate Court, claiming that the plaintiff lacked stand- ing to foreclose the mortgage and that the plaintiff's exhibit failed to establish the amount then due on the note because the initial entry in the exhibit was inadmissible hearsay. The Appellate Court concluded that the trial court correctly determined that the plaintiff had standing to foreclose the mortgage but reversed with respect to the admission of the exhibit under the statutory (§ 52-180) business records exception to the hearsay rule, concluding that the original note balance for the computation of debt was not calculated by the plaintiff and that it was received, rather than made, in the ordinary course of business, and, thus, the exhibit failed to satisfy the requirements of the business records exception. The Appellate Court reversed the trial court's judgment of foreclosure as to T and remanded the case for a new trial. On the granting of certification, the plaintiff and T filed separate appeals with this court. Held: 1. The Appellate Court correctly determined that the plaintiff had standing to foreclose T's mortgage: although the allonge that was executed in conjunction with the assignment of the note from S Co. to the plaintiff did not explicitly incorporate or mention T's guarantee, T's guarantee, when read in its entirety, clearly provided that its benefit would continue to any and all future holders of the note, which included the plaintiff as the uncontested owner of the note; moreover, S Co.'s assignment of the note to the plaintiff operated as an assignment of T's guarantee because the explicit language in T's guarantee indicated that it was the intention of S Co. and T that T's guarantee would follow the note to future note holders, including the plaintiff. 2. The Appellate Court incorrectly concluded that the initial entry provided by S Co. and contained in the exhibit setting forth the plaintiff's calcula- tion of debt owed on the note was not admissible under the business records exception to the hearsay rule and that, without that entry, the trial court could not properly determine the amount owed: when one business provides information to another business in the context of a business transaction, as is often the case with loan records transferred in connection with the purchase and sale of debt, the business acquiring the information and seeking to introduce the information under the business records exception simply must show that the information it acquired became part of its own business record as part of the transac- tion in which the provider of the information had a business duty to transmit accurate information, as it is the providing business' duty to report the information in the business context that provides the reliabil- ity to justify its admission under the business records exception; in the present case, the plaintiff did not introduce a document as a business record that was created by a third party to prove the debt owed on the note at the time it was assigned to the plaintiff but, rather, introduced its own record of the debt that incorporated an initial entry that S Co. had provided to the plaintiff in conjunction with the sale of the note, and, because S Co. had a business duty to report the amount due on the note to the plaintiff as part of the sale of the note and the plaintiff incorporated the amount due as provided by S Co. into its own business records, this was sufficient to establish that the exhibit setting forth the plaintiff's calculation of debt owed on the note, including the initial entry that S Co. had provided, was admissible under the business records exception to the hearsay rule; moreover, although T could have disputed the accuracy of the initial entry by highlighting the fact that the plaintiff failed to introduce supplemental documentation or testimony indicating that the plaintiff had accurately recorded the amount of debt as provided by S Co. in the initial entry or by offering contradictory evidence as to the amount due in order to discredit the weight of that evidence, the trial court found that T had failed to do so. Argued September 24, 2019—officially released January 14, 2020

The plaintiff, which develops and sells information technology products, sought to recover damages for the defendant's alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) and for defamation in connection with certain allegedly false statements that the defendant had published in a market research report. The defendant provides consulting services to vendors of information tech- nology and publishes market research reports in which it rates vendors, including those that purchase its services. The defendant claims in its marketing materials that the opinions expressed in its reports are objec- tive and impartial. The defendant published a report in which it rated vendors, including the plaintiff, in the network performance monitoring and diagnostics market, and, although the plaintiff previously had accepted the defendant's invitation to participate in the report's evalua- tion process, the plaintiff had declined to purchase any consulting ser- vices from the defendant. The report included a graphical ranking of vendors, which was presented in the form of a square divided into four quadrants, and vendors were plotted along the axes of the graph on the basis of the defendant's application of certain weighted criteria, including the subjective evaluations of the vendors' customers. On the basis of its placement in the upper left quadrant of the graph, the plaintiff was designated a ''challenger,'' whereas vendors placed in the upper right quadrant received the more desirable designation of ''leader.'' The report defined the term ''challenger'' in relevant part as a vendor that is currently struggling to deal with new technical demands and rising expectations, whereas a ''leader'' is defined in relevant part as having comprehensive portfolios and the ability to handle multiple application and technology types. The report also included three specific ''cautions'' about the plaintiff and its limitations in its market. The plaintiff alleged that the statements in the report were false and defamatory, and that the defendant had engaged in a pay to play scheme, pursuant to which it rated vendors in a biased manner, on the basis of the amount of consulting services each vendor purchased from the defendant. The defendant moved for summary judgment, claiming that, because the statements in the report constituted protected speech, the plaintiff's claims were barred by the first amendment to the United States constitu- tion. Although the trial court concluded that the defendant's designation of the plaintiff as a challenger rather than as a leader constituted nonac- tionable opinion, it also determined that certain statements contained in the definition of the term ''challenger'' and in the cautions specific to the defendant either were factual or implied, undisclosed facts. With respect to those statements, the court nevertheless concluded that the plaintiff's claims were barred by the first amendment because the defen- dant was a limited purpose public figure, the defendant's statements were on a matter of public concern, and the plaintiff failed to prove by clear and convincing evidence that the defendant had made the state- ments with actual malice. The court also found that there was no evi- dence that the defendant's placement of the various vendors in the quadrants on the graph was correlated to the amount of consulting services the vendors had purchased from the defendant. Accordingly, the trial court granted the defendant's motion for summary judgment on both the defamation count and the CUTPA count and rendered judgment thereon, from which the plaintiff appealed. Held that the trial court properly granted the defendant's motion for summary judgment, this court having concluded that all of the defendant's statements were nonactionable expressions of opinion, there was insufficient evidence to create a genuine issue of material fact regarding the truth of the defendant's claims of objectivity and impartiality, and the plaintiff failed to present sufficient evidence to support its pay to play claim: a reason- able person could construe the defendant's designation of the plaintiff as a challenger only to be an expression of opinion, as ratings of products and services are inherently subjective and the criteria used by the defen- dant in ranking the vendors, including the subjective evaluations of the vendors' own customers, and the weight assigned to those criteria could not be proven true or false; moreover, contrary to the conclusion of the trial court, this court concluded that, in light of the context in which they were made, the statements contained in the definition of the term ''challenger'' and in the cautions about the plaintiff were neither factual nor implied, defamatory statements of fact, as the parties were operating in a sophisticated market and their customers understood that the rating of products and services is based on inherently subjective evaluations, the report expressly stated that it consisted of the defendant's own opinions that should not be construed as statements of fact, and the language used in the definitions and cautions, which was highly technical and employed terms of art specific to the plaintiff's specific market, was abstract, unquantifiable, and comparative, such that the statements were insusceptible of being verified; furthermore, the fact that the defen- dant had claimed in its marketing materials that the opinions presented in its research reports are objective and impartial, in the absence of evidence establishing that those claims of objectivity were false, did not transform the nonactionable statements of opinion contained in the report into express or implied, defamatory factual statements, as such claims of objectivity, like puffery, are insusceptible of being proven true or false and are unlikely to induce reliance in a reasonable person viewing such statements. Argued January 14, 2019—officially released January 21, 2020

Pursuant to State v. Dickson (322 Conn. 410), in cases in which the state seeks to present an in-court identification that has not been preceded by a successful identification during a nonsuggestive identification pro- cedure, the state must request permission to do so, and the trial court may grant such permission only if it determines that there is no factual dispute as to the identity of the perpetrator or that the ability of the eyewitness to identify the defendant is not at issue. Convicted of the crimes of felony murder, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, and criminal possession of a firearm in connection with the shooting of the victim, the defendant appealed to the Appellate Court. The defendant and two friends, B and V, had driven to an apartment complex intending to commit a robbery. B waited in the car while the defendant and V, who were armed with guns, attempted to rob the victim. When the victim fled, the defendant and V fired gunshots, fatally wounding the victim, and then drove with B to the apartment of a friend, O. B, V and O gave statements to the police that incriminated the defendant. B also inculpated the defendant during his testimony at the defendant's probable cause hearing, and V inculpated the defendant when he pleaded guilty to charges related to the shooting. At trial, the state granted B, V and O immunity from prosecution, pursuant to statute (§ 54-47a), in exchange for their testimony during the state's case-in-chief. B, V and O then repudiated their prior statements that incriminated the defendant and testified so as to exonerate him during the state's case-in-chief. The state introduced their prior inconsistent statements and questioned them regarding those statements. On cross-examination, defense counsel questioned B, V and O extensively about their prior, incriminating state- ments and their new, exculpatory testimony. When B, V and O were later called to testify in the defendant's case-in-chief, the prosecutor informed them that the state was not extending its grant of immunity to their testimony for the defense. The trial court informed B, V and O that the law was unclear as to whether the immunity they already had been granted extended to their testimony as defense witnesses and stated that they should be guided by the advice of their counsel. B, V and O then invoked their fifth amendment rights against self-incrimina- tion. The defendant claimed, inter alia, that the trial court violated his rights to due process and to compulsory process when it improperly permitted the state to revoke the immunity that it had granted to B, V and O. He contended that the testimony of B, V and O would have addressed exculpatory, material and noncollateral matters, and would have rehabilitated his credibility and the credibility of B, V and O. The Appellate Court upheld the defendant's conviction and rejected his constitutional claim, reasoning that the state did not revoke the immunity it had granted to B, V and O when they were called to testify in the defendant's case-in-chief but, rather, refused to grant additional immu- nity for any transaction, matter or thing not testified to and immunized during the state's case. The Appellate Court also determined, inter alia, that the defendant was not constitutionally entitled to have additional immunity granted to B, V and O because he failed to establish that the additional testimony would have been essential to his defense or would not have been cumulative. The defendant thereafter filed a motion for reconsideration in light of Dickson, a case that was decided after his criminal trial but that applied retroactively to all cases then pending on appeal, claiming that the trial court had improperly permitted two witnesses, the victim's mother, R, and the victim's brother, G, to make first time in-court identifications of him as one of the persons who shot at the victim, in violation of the rule that such identifications must be prescreened by the trial court. The Appellate Court denied the motion. On the granting of certification, the defendant appealed to this court. Held: 1. The defendant could not prevail on his claim that his rights to due process and to compulsory process were violated when the state declined to extend the immunity that it had granted under § 54-47a to B, V and O during the state's case-in-chief to their testimony during the defendant's case-in-chief because, even if that immunity could not be revoked during the defendant's case-in-chief and the state's failure to extend such immu- nity violated § 54-47a, that violation was not constitutional in nature and, accordingly, did not violate his constitutional rights: to the extent that B, V and O could have invoked their fifth amendment rights even if immunity had been extended to their testimony during the defendant's case-in-chief, the defendant failed to establish that any improper revoca- tion of immunity by the state violated his constitutional rights because the witnesses would not have answered questions for which they validly invoked those rights, and, thus, their testimony in response to those questions would not have been exculpatory; moreover, this court con- cluded, with respect to those matters for which B, V and O could not have validly invoked their fifth amendment rights if the previously granted immunity had extended to the defendant's case-in-chief, that, even if the state acted unfairly and committed misconduct by engaging in a discriminatory grant of immunity to gain a tactical advantage when it declined to extend immunity to the witnesses' testimony during the defendant's case-in-chief, the defendant failed to establish that the testi- mony he was prevented from offering during his case-in-chief was not cumulative, as the defendant failed to establish what new information B, V and O would have provided if the state had not declined to extend immunity beyond the state's case; furthermore, the state's purported revocation of immunity, coupled with the trial court's warnings to B, V and O that the law on whether immunity extended to their testimony as defense witnesses was unclear and that they should be guided by the advice of their counsel, did not drive them from the witness stand and, therefore, did not violate the defendant's constitutional rights, as neither the trial court nor the state threatened B, V or O that testifying for the defendant or in a manner unfavorable to the state would lead to perjury charges or to having a plea deal revoked, and the state's informing those witnesses of what it believed to be the scope of § 54- 47a was not so coercive or intimidating as to substantially interfere with their decision whether to testify in the defendant's case-in-chief. 2. The defendant could not prevail on his claim that his right to due process was violated, pursuant to Dickson, when R and G purportedly gave first time in-court identification testimony about him, as that testimony, to the extent that it was improper, was harmless beyond a reasonable doubt: contrary to the state's assertion that the rule created in Dickson was inapplicable to the unsolicited and unanticipated identification testi- mony of R and G, all first time in-court identifications are subject to Dickson, regardless of whether the state intends or attempts to introduce such an identification, and, because the defendant's identity as a shooter was not at issue as to all of the charges except for criminal possession of a firearm, the testimony of R and G did not implicate the defendant's due process rights as to those charges; moreover, although the defen- dant's identity as a shooter was at issue with respect to the charge of criminal possession of a firearm and, thus, the testimony of R and G implicated the defendant's due process rights with respect to that charge, the admission of that testimony was harmless beyond a reasonable doubt, as the statements of B, V and O to the police and the testimony of other witnesses indicated that the defendant possessed or used a gun during the shooting and that he possessed a gun after the shooting, defense counsel extensively cross-examined G as to his testimony and attacked his credibility, the state's overall reliance on the testimony of R and G was minimal, and, even without their testimony, there was sufficient evidence for the jury to find the defendant guilty beyond a reasonable doubt. Argued November 7, 2018—officially released January 21, 2020

Convicted of the crimes of felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, attempt to commit robbery in the first degree, and assault in the first degree in connection with the shooting deaths of the victim and two of the defendant's accom- plices, A and M, the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court had violated his constitutional right to confrontation when it admitted into evidence the former testimony of a purportedly unavailable witness, P, and the testimony of the state's expert witness, S, about ballistic evidence. Pursuant to a court order, P reluctantly testified at the defendant's probable cause hearing. P testified that she had met with the defendant in Brooklyn, New York, on the day after the shootings in question and that the defendant confessed that he had gone to East Hartford with A and M intending to rob B, a drug dealer. According to P, the defendant stated that he had kicked open the door to B's apartment and encountered the victim, who was armed with a gun. The defendant disarmed the victim and proceeded to another room of the apartment, from where he heard several gunshots and the shooter ask the victim how many people remained in the apartment. P further testified that the defendant had told her that he then used the gun he had taken from the victim to shoot his way out of the apartment and past the bodies of A and M, both of whom apparently had been shot. The state could not locate P before the defendant's trial and sought to admit her former testimony from the probable cause hearing pursuant to the provision (§ 8-6 [1]) of the Connecticut Code of Evidence allowing for the admission at a subsequent trial of an unavailable witness' prior testimony. The defendant moved to suppress P's former testimony on the ground that the state had failed to establish P's unavailability insofar as it had not made diligent and good faith efforts to procure her atten- dance at trial. The court held a hearing on the motion at which an inspector for the state's attorney's office, H, testified about his efforts to locate P. H testified that he first conducted electronic searches in the Hartford Police Department's in-house computer database and the National Crime Information Center (NCIC) database, a national reposi- tory of criminal records, but that those searches yielded no results. He then used CLEAR, a subscription based search engine that aggregates publicly available data, which revealed two addresses for P and one address for P's mother, all of which were in New York, as well as several phone numbers for P, none of which was in service or receiving calls. H forwarded the addresses to the Kings County District Attorney's Office in Brooklyn, and an investigator in that office, G, was assigned to serve an interstate summons on P. Over two days, G visited one of P's addresses on three occasions and P's other address and her mother's address one time each, but no one was home on any of those occasions. The trial court denied the defendant's motion to suppress P's former testimony, concluding that the state's efforts to locate P were sufficient to establish her unavailability under both § 8-6 (1) of the Connecticut Code of Evidence and the confrontation clause of the federal constitu- tion. The defendant also moved to suppress S's expert testimony about ballistic evidence, arguing that its admission would violate his right to confrontation because it was based on a ballistic report, which the defendant claimed contained testimonial hearsay, prepared by a former employee of the state forensic laboratory who had examined the ballistic evidence recovered from the crime scene but who was unavailable to testify because he died before the defendant's trial. The trial court denied the defendant's motion to suppress S's testimony, agreeing with the state that there was no confrontation clause issue because S had formed his own independent conclusions after reviewing the former employee's report and photographs, and the defendant could cross-examine S at trial. S ultimately testified, and the state emphasized during its closing argument that the ballistic evidence indicated that the bullet that killed the victim came from the gun used by the defendant. The Appellate Court affirmed the judgment of the trial court, concluding, inter alia, that the defendant's right to confrontation was not violated by the admis- sion of P's former testimony. On the granting of certification, the defen- dant appealed to this court. Held: 1. The Appellate Court incorrectly concluded that the admission of P's former testimony did not violate the defendant's right to confrontation, the state having failed to establish that it undertook a reasonable, dili- gent, and good faith effort to procure P's attendance at the defendant's trial: this court, having concluded that the issue of whether a witness is unavailable for purposes of the confrontation clause presents a mixed question of law and fact subject to plenary review, employed four objec- tive criteria for determining the reasonableness of the state's efforts to demonstrate the unavailability of a witness, including the importance of the witness to the state's case, the seriousness of the crimes for which the defendant was tried, whether the witness had reason to favor the prosecution, and whether the state made the same sort of effort to procure the witness for trial that it would have made if it did not have the witness' prior testimony available; in the present case, although the record did not reflect that P received any consideration for her testi- mony, such as an immunity arrangement, the other three criteria weighed in favor of the defendant because the defendant was charged with extremely serious crimes, P's testimony was critical to the state's case as she provided crucial, inculpatory testimony regarding the defendant's role in the commission of the crimes that directly contradicted the defendant's own statements about his version of the events and that was not provided by any other witness, namely, that the defendant had confessed that he had gone to the apartment intending to commit a robbery, he was armed with a gun that he had taken from the victim, and he had used that gun to shoot his way out of the apartment, and, in light of the crucial nature of P's testimony, the serious nature of the crimes, and the state's knowledge that P was a reluctant witness who had been compelled to testify at the probable cause hearing by court order, this court could not conclude that the state's efforts to locate P were as vigorous as they would have been if the state did not have her former testimony to rely on, as H conducted electronic searches for P in only three content limited databases, the usefulness of his searches in two of those databases was of questionable value in light of H's knowledge that P was a New York resident with no known criminal record, H's search in the third database was limited to only basic location information, H did not search any New York governmental databases for P's motor vehicle, social service, housing court, family court, or child support records, H did not conduct any routine Internet searches on Google or social media sites, once H had forwarded the three addresses he found for P to G, he never spoke to or requested that G, who visited the addresses associated with P only during normal business hours, make any additional efforts to locate her by returning to the addresses at other times of day, speaking with neighbors or landlords, or conducting surveillance, and, after G failed to locate P at any of the three addresses that H had provided, the state made no further efforts to locate her. 2. The admission of S's expert testimony did not violate the defendant's sixth amendment right to confrontation because, even if it was predicated in part on testimonial hearsay purportedly contained in a ballistic report prepared by a former employee of the state forensics laboratory and photographs that S had reviewed, such hearsay was not admitted into evidence or otherwise introduced to the jury for the truth of the matter asserted; although the jury had been informed that S had reviewed certain reports and photographs in preparation of his testimony, neither those materials nor the out-of-court statements that they contained were admitted into evidence as an exhibit or through the conduit of S's in- court testimony, the jury was not informed of the nature of the reports, who had prepared them, or whether S's opinions were consistent with those contained in the reports, and the trial court sustained the defen- dant's objection when the state attempted to question S as to which materials he had reviewed and ruled that S's testimony must be limited to S's own conclusions; accordingly, this court concluded that S applied his training and experience to reach an independent judgment about the ballistic evidence, the basis of which could be tested through cross- examination at the defendant's trial, and that S did not merely transmit the testimonial hearsay purportedly contained in the ballistic report prepared and photographs generated by the former employee of the state forensics laboratory. (Two justices concurring in part and dissenting in part in one opinion) Argued January 23, 2019—officially released January 28, 2020

Pursuant to the rules of practice (§ 23-24), once a petition for a writ of habeas corpus is filed in the Superior Court, ''[t]he judicial authority shall promptly review [the] petition . . . to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that . . . the court lacks jurisdiction . . . the petition is wholly frivo- lous on its face . . . or . . . the relief sought is not available.'' Pursuant further to the rules of practice (§ 23-29), ''[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition . . . if it determines [inter alia] that . . . the court lacks jurisdiction . . . [or] the petition . . . fails to state a claim upon which habeas corpus relief can be granted . . . .'' The petitioner, who had been convicted, on a guilty plea, of the crime of robbery in the third degree, filed a petition for a writ of habeas corpus, seeking to withdraw his guilty plea and to have his conviction vacated or dismissed. The petitioner alleged that he had received a sentence of unconditional discharge in connection with the robbery conviction but that he remained incarcerated on unspecified other charges and that the robbery conviction was adversely affecting his eligibility for parole on the other charges. The habeas court granted the petitioner's applica- tion for a waiver of fees but took no action as to his request for the appointment of counsel. Shortly thereafter, however, the court, sua sponte and without providing the petitioner with notice or an opportunity to be heard, dismissed the petition pursuant to Practice Book § 23-29 on the ground that the habeas court lacked jurisdiction because the petitioner was not in custody for the conviction that he was challenging at the time he filed the petition. On the granting of certification, the petitioner appealed to the Appellate Court, which affirmed the habeas court's judgment, and the petitioner, on the granting of certification, appealed to this court, claiming that the habeas court improperly dis- missed the petition without first acting on his request for the appoint- ment of counsel and providing him with notice and an opportunity to be heard. Held that, although the Appellate Court correctly concluded that the petitioner was not entitled to the appointment of counsel, notice or a hearing under the circumstances, that court improperly upheld the habeas court's dismissal of the habeas petition under § 23-29 because that dismissal occurred before the habeas court ordered the issuance of the writ pursuant to § 23-24, and the habeas court, upon preliminary review of the petition, should have declined to issue the writ under § 23- 24 for lack of jurisdiction rather than dismissing the petition pursuant to § 23-29: upon review of the historical development of the writ of habeas corpus, the language of §§ 23-24 and 23-29, and the relationship of those sections to the provisions generally governing habeas corpus procedure (§ 23-21 et seq.) set forth in the Practice Book, this court concluded that a dismissal under § 23-29 may not precede the habeas court's determination to issue the writ of habeas corpus under § 23-24, as that rule dictates the procedure by which the judicial authority must conduct a preliminary review of the petition, prior to commencement of the habeas action through issuance of the writ, to determine whether the petition is patently defective because the court lacks jurisdiction, the petition is wholly frivolous on its face, or the relief sought is not available, and § 23-24 expressly requires the court to issue the writ if its initial review does not result in a decision to decline to issue the writ on the basis of one or more grounds enumerated in § 23-24, whereas § 23-29 contemplates the dismissal of a habeas petition only after the writ has issued and the habeas action has commenced; accordingly, because the habeas court dismissed the habeas petition for lack of jurisdiction under § 23-29, even though it did so in its preliminary consid- eration of the petition under § 23-24 and before issuing the writ of habeas corpus initiating the habeas proceeding, and, because it was undisputed that the petitioner would not have been entitled to the appointment of counsel, notice or an opportunity to be heard in connection with the habeas court's decision to decline to issue the writ, the judgment of the Appellate Court was reversed and the case was remanded to that court for remand to the trial court with direction to decline to issue the writ of habeas corpus. Argued September 16, 2019—officially released January 28, 2020

The plaintiffs, four school-age children diagnosed with autism spectrum disorder and enrolled in the Norwalk public school system, and their parents, brought an action seeking damages from the defendant Board of Education of the City of Norwalk and three of its members in connec- tion with the hiring of the defendants S Co. and L, S Co.'s owner, to provide autism related services to certain children in the Norwalk school district. The plaintiffs alleged, inter alia, that, under state law, the negli- gent hiring and supervision of L by the board and board members proximately caused them to suffer permanent and ongoing injuries and losses. L represented when she was hired that she had received various master's degrees and was a board certified behavior analyst, but the board and three board members never performed a background check or confirmed her credentials. The board and board members filed a motion to dismiss those counts of the complaint asserted against them on the ground that the plaintiffs sought relief for the board's and board members' alleged failure to provide special education services under the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.), thus triggering an administrative exhaustion requirement contained in that act and in the applicable state statutory (§ 10-76a et seq.) scheme that implements the federal act, thereby depriving the trial court of subject matter jurisdiction. The board and board members specifically contended that, although the plaintiffs did not allege a violation of the federal act, they sought relief for the denial of a free appropriate public education under the federal act and that, regardless of whether the complaint alleged a violation of the federal act or some other common- law claim, the federal act and state law (§ 10-76h) mandated the exhaus- tion of administrative remedies insofar as the crux of the complaint was the alleged denial of a free appropriate public education. The board and board members alleged, in the alternative, that they were entitled to sovereign immunity because they were acting as agents of the state in providing special education services. The trial court granted the motion to dismiss and rendered judgment for the board and board members, concluding that the plaintiffs were required to exhaust their administrative remedies but had failed to do so. The court denied the motion as to the claim that the plaintiffs' action was barred by sovereign immunity. On appeal, the plaintiffs claimed, inter alia, that they were not required to exhaust their administrative remedies because they did not seek relief for the denial of a free appropriate public education but, rather, asserted common-law claims under state law that were not subject to the exhaustion requirements. Held: 1. The trial court incorrectly concluded that the plaintiffs were required to exhaust their administrative remedies, the plaintiffs having alleged common-law negligence claims that were not subject to an exhaustion requirement, and, accordingly, the judgment was reversed as to the trial court's dismissal on the basis of the plaintiffs' failure to exhaust their administrative remedies, and the case was remanded for further proceed- ings: although the federal act contains an exhaustion requirement (20 U.S.C. § 1415 (l)) that is applicable to civil actions brought under federal laws that protect the rights of disabled children, the plaintiffs' claims were not subject to federal exhaustion requirements because those claims did not allege violations of federal laws protecting the rights of disabled children but, rather, alleged common-law negligence under state law; moreover, although the state legislature implemented the substantive and procedural requirements of the federal act by statute in § 10-76a et seq. and required the exhaustion of administrative remedies under § 10-76h for state law claims seeking relief for the denial of a free appropriate public education, a claim by claim analysis of the plaintiffs' complaint revealed that the plaintiffs, in asserting claims of negligence and loss of parental consortium, did not seek relief for the denial of education services but, rather, for an alleged regression in the children's symptoms of autism spectrum disorder and an inability to communicate effectively resulting from the time that the children spent under the care of unqualified personnel, and, accordingly, the plaintiffs' claims did not trigger the exhaustion requirement of § 10-76h; further- more, this court relied on the framework set forth in the United States Supreme Court's recent decision in Fry v. Napoleon Community Schools (137 S. Ct. 743), in determining that, because the plaintiffs' negligence claims could have been brought outside the school setting, and because the history of the proceedings prior to the filing of their complaint demonstrated that the plaintiffs never invoked the formal procedures of filing a due process complaint or requested a hearing, the plaintiffs sought relief for something other than the denial of a free appropriate public education. 2. The board and board members could not prevail on their claim, as an alternative ground for upholding the dismissal of the plaintiffs' action, that they were entitled to sovereign immunity because they were acting as agents of the state in providing special education services, and, accordingly, this court upheld the trial court's denial of the motion to dismiss on the basis of sovereign immunity: although a local board of education acts as an agent of the state when it is fulfilling the statutory duties imposed on it by the legislature pursuant to the state constitutional (art. VIII, § 1) mandate of free public education and, thus, when it is carrying out the educational interests of the state, a local board of education acts as an agent of a municipality in its function of maintaining control over the public schools within the municipality's limits, and when a board of education acts on behalf of a municipality rather than the state, sovereign immunity is not implicated; in the present case, this court, upon reviewing the statutes (§§ 10-240 and 10-241) delegating control of the public schools to municipalities, concluded that a private lawsuit, such as the plaintiffs' action, alleging a violation of the duties within a municipality's control, does not constitute a serious interference with the performance of the state's functions or its control over its respective instrumentalities, funds and property, and, because the plain- tiffs did not allege that the board and board members failed to develop or design a special education program in accordance with state mandates but claimed that their alleged injuries occurred in the execution of such a program, the municipality, rather than the state, was subject to liability, and, accordingly, sovereign immunity was not implicated. Argued September 16, 2019—officially released February 4, 2020

The plaintiff, whose marriage to the defendant had been dissolved, appealed, challenging the trial court's custody orders and claiming that the trial court improperly declined to enforce the parties' purported agreement to revoke an earlier postnuptial agreement and incorrectly determined that the postnuptial agreement was enforceable. Approximately six years into the parties' marriage, during which they had two children, the parties, after seeking and obtaining the advice of counsel, entered into a postnuptial agreement pursuant to which they agreed that, if either party sought a divorce between certain specified dates, the plaintiff would receive a certain amount of alimony and a specified distribution of marital property. Thereafter, the plaintiff filed for divorce when the postnuptial agreement was effective, and the parties entered into divorce mediation. The parties retained S as a mediator. The defendant agreed to retain S in reliance on S's representation on S's website that mediation was voluntary and that any party could withdraw from mediation without sacrificing his or her rights. Moreover, the mediation agreement between the parties and S provided that the parties agreed to keep all statements made and materials and documents prepared and disclosed during medi- ation confidential and that this confidentiality would extend to any future judicial proceedings. Shortly after mediation commenced, the plaintiff sent an e-mail to S and the defendant, requesting a revocation of the parties' postnuptial agreement. S responded in an e-mail addressed to both the plaintiff and the defendant that he could help with that matter but that the ultimate separation agreement that the parties would reach at the conclusion of mediation would govern and would effectively override the parties' postnuptial agreement. S nevertheless prepared a revocation agreement, which the parties signed after making full disclose to one another regarding their financial information. Although the plain- tiff received legal advice from her own attorney in conjunction with the signing of the revocation agreement, the defendant attempted to obtain but was unsuccessful in securing legal advice from an independent attorney prior to signing the revocation agreement. Mediation ultimately ended without the parties reaching a separation agreement, and the matter was tried to the court. The trial court heard testimony from H, a court-appointed psychologist who performed a forensic custody evaluation, and B, the guardian ad litem for the children, among other witnesses. The trial court determined that, with the exception of one provision that was severable from the remainder of the postnuptial agreement, that agreement was enforceable. The trial court also deter- mined that the agreement purporting to revoke the postnuptial agree- ment was unenforceable because, inter alia, the defendant had no legal counsel when he signed the revocation agreement, the defendant relied on a provision in the mediation agreement signed by both parties that all materials prepared during mediation, presumably including the pur- ported revocation of the postnuptial agreement, would remain confiden- tial and were to be used solely in an effort to obtain a complete settlement that never occurred, and the defendant relied on S's representations on his website that the defendant could withdraw from mediation at any time without sacrificing his rights, including those previously guaranteed in the postnuptial agreement. The trial court rendered judgment dissolv- ing the parties' marriage, awarding alimony and a share of the marital assets to the plaintiff in accordance with the parties' postnuptial agree- ment, and awarding the parties joint legal and physical custody of the children but granting the defendant final decision-making authority as to matters concerning the children about which the parties disagreed. On the plaintiff's appeal, held: 1. The trial court correctly concluded that the parties' agreement purporting to revoke their postnuptial agreement was unenforceable: the defen- dant's purported understanding that the revocation agreement would not be binding unless the parties reached a full and final settlement of the disputed issues was supported by S's representations to the defendant on S's website, in S's e-mail to the parties during mediation, and in the mediation agreement, and the trial court's finding that the defendant's understanding was based on those representations was amply supported by his testimony; accordingly, the revocation agreement was unenforce- able against the defendant over his objection because a full and final resolution of the issues during mediation was a condition precedent to the enforcement of the revocation agreement, and it was undisputed that no such resolution ever occurred; moreover, there was no merit to the plaintiff's claim that the trial court's consideration of S's represen- tations on his website, in the e-mail to the parties, and in the mediation agreement for the purpose of ascertaining the defendant's understanding and intent with respect to the revocation agreement violated the parol evidence rule, as that rule does not prevent a party from relying on extrinsic evidence to establish the existence of a condition precedent to the formation of a contract, and, therefore, the trial court properly considered parol evidence in evaluating the defendant's claim that the revocation agreement was not binding in the absence of a final settle- ment agreement. 2. The plaintiff could not prevail on her claim that the trial court had incorrectly determined that the parties' postnuptial agreement was enforceable because it was fair and equitable at the time of execution and was not unconscionable at the time of dissolution: the trial court, in considering the entirety of the evidence, reasonably concluded that the plaintiff's decision to enter into the postnuptial agreement was volun- tary and not the product of duress; moreover, the evidence supported the trial court's finding that the plaintiff understood her rights and obligations under the postnuptial agreement notwithstanding its length and complexity, as the plaintiff was highly educated, had independent counsel during the negotiation and execution of that agreement, and acknowledged in the agreement her complete understanding of the effects of the agreement; furthermore, the plaintiff failed to identify a single change of circumstance since the execution of the postnuptial agreement that would warrant the conclusion that its enforcement at the time of dissolution would be unconscionable. 3. The trial court did not abuse its discretion when, in its custody orders, it granted the defendant final decision-making authority with respect to the parties' children in situations in which the parties were unable to agree: notwithstanding the plaintiff's claim that the trial court improperly based its custody orders on the testimony of B, the guardian ad litem, on the ground that B testified that she had not seen the children in two years, there was nothing in the record to suggest that B did not conduct an investigation into the best interests of the children during the pen- dency of the dissolution, because, even though B met with the children only once, shortly after her appointment, due to their tender years and to keep them removed from their parents' marital conflicts, B was in regular communication with the parties, read the reports prepared by H, the court-appointed psychologist, and consulted with him about his findings, and attended all court proceedings and depositions; moreover, the plaintiff had a full and fair opportunity to cross-examine B about any possible deficiencies concerning the time she spent with the children and how, if at all, any such deficiencies impaired her ability to form a legitimate opinion as to their best interests, and the plaintiff failed to demonstrate that she was prejudiced by B's limited contact with the children; furthermore, H, who spent far more time evaluating the chil- dren, largely agreed with B's observations and recommendations, and the trial court's granting of final decision-making authority to the defen- dant was based on its finding that the defendant had more insight into the children's developmental needs, activities, education and environment, which in turn was based on the testimony of B as well as other witnesses. Argued November 14, 2018—officially released February 11, 2020

The petitioner, who is not a United States citizen, filed a petition for a writ of habeas corpus, challenging, inter alia, his conviction of illegal possession of less than four ounces of marijuana. At some point after his release from custody in connection with that conviction, the petitioner traveled outside of the United States. When he attempted to return, he was denied reentry to and ordered removed from the United States on the basis of his conviction. At the time he filed his habeas petition, the petitioner was in federal immigration detention pending deportation. The habeas court, sua sponte, rendered judgment dismissing the petition, concluding that it lacked jurisdiction to consider the merits of that petition on the ground that the protections afforded in Padilla v. Ken- tucky (559 U.S. 356), which was decided after the petitioner was con- victed, did not apply retroactively to the petitioner's case. Thereafter, the petitioner, on the granting of certification, appealed to the Appellate Court. After the petitioner filed his initial brief with that court, the respondent, the Commissioner of Correction, filed an amended prelimi- nary statement of the issues in which he raised, for the first time, as an alternative ground for affirmance, the issue of whether the habeas court had subject matter jurisdiction when the petitioner failed to allege that he was in custody at the time he filed his habeas petition within the meaning of the statute (§ 52-466) governing applications for a writ of habeas corpus. In his initial brief to the Appellate Court, the respondent conceded that the habeas court improperly dismissed the petition on the basis of the nonretroactive application of Padilla but claimed that the judgment of dismissal should be affirmed on the alternative ground that the conviction challenged in the habeas petition had expired and the collateral consequences of that conviction were insufficient to estab- lish that the petitioner was in custody when he filed his petition. In his reply brief, the petitioner addressed the custody issue and argued that, although detention in a federal immigration facility as a result of an expired state conviction is insufficient to establish that he was in custody within the meaning of § 52-466 under this court's precedent, the Appel- late Court nonetheless should construe custody expansively to include individuals, such as the petitioner, who are in federal immigration deten- tion pending deportation as a consequence of an expired state convic- tion. The Appellate Court affirmed the judgment of the habeas court on the alternative ground advanced by the respondent, concluding that the habeas court lacked jurisdiction because the petitioner was not in custody when he filed his habeas petition, but declined to review the petitioner's argument that custody should be construed expansively, citing the fact that he had raised that claim for the first time in his reply brief. Thereafter, the petitioner, on the granting of certification, appealed to this court. Held: 1. The Appellate Court improperly declined to review the petitioner's argu- ment that it should have construed custody expansively on the ground that it was contained in his reply brief, this court having concluded that the petitioner was not raising a new claim but, rather, merely was responding at his first opportunity to the jurisdictional issue that the respondent raised as an alternative ground for affirmance after the petitioner already had filed his initial appellate brief, and the Appellate Court was obligated to dispose of the issue of subject matter jurisdiction once the respondent raised it; nonetheless, the Appellate Court's refusal to consider the petitioner's argument was harmless because the issue was properly before this court in the petitioner's certified appeal and the Appellate Court was bound by this court's precedent construing the custody requirement, which the petitioner conceded required the Appellate Court to reject his request for an expansive construction of custody. 2. The petitioner could not prevail on his claim that the habeas court had subject matter jurisdiction over his habeas petition because the custody requirement of § 52-466 was satisfied by his detention in a federal immi- gration facility pending deportation as a result of his expired state conviction: this court previously has rejected claims that the custody requirement in § 52-466 be interpreted more expansively and concluded that, in order to satisfy the custody requirement, a petitioner must be in custody for the conviction being challenged when the habeas petition is filed, and collateral consequences flowing from an expired conviction, including deportation proceedings, are insufficient to render a petitioner in custody within the meaning of § 52-466, and it was undisputed that the petitioner was not in the custody of the respondent for the state conviction he was challenging when he filed his petition; moreover, an examination of the legislative history of a 2006 amendment to § 52-466 (P.A. 06-152, § 5) clearly indicated, contrary to the petitioner's claim, that that amendment was not a substantive modification to the statutory custody requirement intended to overrule this court's precedent but, rather, was enacted as a technical amendment to court operations through which the legislature intended to centralize in the judicial district of Tolland the filing of habeas petitions brought by and on behalf of inmates or prisoners claiming illegal confinement or a deprivation of liberty, and any challenge to the legality of the petitioner's federal immi- gration detention could have been pursued, if at all, only by way of a habeas petition in federal court directed against that detention. Argued October 24, 2019—officially released February 18, 2020

Convicted of the crimes of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree, the defendant appealed, claiming, inter alia, that his federal due process right to a fair trial was violated when the trial court improperly admitted testimony from a police officer, W, and other evidence regarding the location of the defen- dant's cell phone on the day of the victim's murder. The victim had been fatally shot while standing on a sidewalk when he was approached by two people who fired a series of gunshots. The victim's medallion and gold chain were later recovered at a nearby pawn shop. W testified that he had performed a call detail mapping analysis of the defendant's cell phone, which the police recovered after the shooting, and generated cell tower coverage maps and a time lapse video showing the movement of the cell phone. The state relied on the cell tower coverage maps to establish that the defendant was in the area of the crime scene at the time of the shooting and in the area of the pawn shop after the shooting. The Appellate Court concluded that the defendant's claim was unpre- served and unreviewable under State v. Golding (213 Conn. 233), as modified by In re Yasiel R. (317 Conn. 773), because it was evidentiary and not constitutional in nature. In addition, the Appellate Court declined to review the defendant's claim under the plain error doctrine, conclud- ing that defense counsel had assented to the admission of the cell phone evidence that the defendant claimed violated his right to due process. The Appellate Court also declined to review the defendant's claim under its supervisory authority over the administration of justice, concluding that the defendant had failed to present extraordinary circumstances that warranted such review. Accordingly, the Appellate Court affirmed the judgment of conviction. On the granting of certification, the defen- dant appealed to this court, claiming, inter alia, that the Appellate Court incorrectly concluded that he was not entitled to Golding review of his unpreserved claim that the trial court violated his right to a fair trial by admitting W's testimony and the cell phone evidence without conduct- ing a hearing pursuant to this court's decision in State v. Porter (241 Conn. 57), which held that testimony based on scientific evidence must be assessed to determine whether it is derived from and based on reliable scientific methodology. Held: 1. The defendant having failed to establish that any error occurred in the admission of W's testimony and the cell phone evidence, he was not entitled to review of his unpreserved claim under Golding: this court having determined, contrary to the defendant's claim, that its recent decision in State v. Edwards (325 Conn. 97) did not obligate the trial court to conduct a Porter hearing to assess the reliability of W's testi- mony and the cell phone evidence in the absence of a party's request for such a hearing, and the defendant having failed to request such a hearing or to object to the admission of W's testimony and the cell phone evidence, his claim, which was evidentiary in nature, was unpre- served and there was no error, and, accordingly, the defendant could not establish that the trial court's failure to conduct such a hearing sua sponte was constitutional in nature or violated his constitutional rights under the second and third prongs of Golding; moreover, because the defendant failed to request a Porter hearing, the record was unclear as to what the trial court would have done if he had requested such a hearing, and this court declined to find facts not in the record or to presume that the trial court committed evidentiary error when it was never asked to decide the issue; furthermore, the record was inadequate to determine whether W's cell tower coverage map evidence satisfied the requirement of Porter that the proffered scientific testimony be demonstrably relevant to the facts of the case, as it was impossible to determine, without a Porter hearing or an objection to W's testimony and the cell phone evidence, whether the state would have been able to satisfy that requirement. 2. The defendant could not prevail on his claim that the trial court's failure to conduct a Porter hearing constituted plain error; this court declined the defendant's request to adopt the federal plain error standard, under which the determination of whether an error was clear is made on the basis of the law existing at the time of appeal rather than the time of trial, and, because the case law existing at the time of the defendant's trial did not guarantee the defendant the right to a Porter hearing regard- ing cell phone data, this court could not conclude that the plain error doctrine afforded the defendant any relief. 3. This court declined the defendant's request to exercise its supervisory authority over the administration of justice to review his unpreserved claim that the trial court improperly had admitted W's testimony and the cell phone evidence without conducting a Porter hearing, as this case did not present the exceptional and unique circumstances that would justify the exercise of such authority, and this court's decision not to exercise its supervisory authority was consistent with its holding in Edwards, as Edwards entitles a defendant to a Porter hearing regard- ing cell phone data only upon request, and the defendant failed to request such a hearing. Argued September 25, 2019—officially released February 18, 2020

Convicted of, among other crimes, murder, conspiracy to commit murder, assault in the first degree, and conspiracy to commit assault in the first degree in connection with an incident in which two men opened gunfire on a car and killed a fifteen year old victim and seriously injured two other victims, the defendant appealed to this court, claiming, inter alia, that the trial court improperly had admitted certain out-of-court state- ments by two witnesses, T and M, identifying the defendant as the shooter and improperly instructed the jury on third-party culpability by omitting the names of certain potential third-party culprits. On the day of the shooting, the defendant was attending a social gathering at which numerous other individuals were present, including F, T, C, M and H. The defendant had driven F and an unidentified man wearing a do-rag or a hat to the social gathering in a car that the defendant had been renting for approximately three weeks, but F was separated from the defendant shortly after arriving. At some point thereafter, two armed men approached a black car that was stopped in the vicinity and began shooting into the vehicle. The shooters then ran toward the defendant's parked car, entered it, and fled the scene, at which point a nearby driver recorded its license plate number. The following day, the defendant spoke to T and C and told them that he had ''done it'' but that the driver of the black car had been the intended target, not the fifteen year old victim. Subsequently, M came forward and stated to the police that he had seen the defendant by the driver's side of the black car during the shooting and that the defendant was one of the shooters. The defendant thereafter was arrested while attempting to flee Connecticut for Califor- nia. At the defendant's trial, the state questioned M on direct examination regarding his statements to the police, but M maintained that he could not recall making those statements or the events surrounding the shoot- ing. The trial court admitted into evidence a portion of a transcript of testimony that M previously had given to a federal grand jury in which M stated that he observed the shooter on the driver's side of the black car wearing clothes similar to clothing the defendant had been wearing earlier on the day of the shooting and that he also observed the shooters run to the defendant's car. During redirect examination, the trial court twice overruled defense counsel's hearsay objection and permitted the state to question M regarding his statements to the police. The state subsequently questioned W, a detective with the New Haven Police Department, about what M had told W about the shooting, but defense counsel objected to that line of questioning on hearsay grounds, and the trial court sustained the objection. The state then objected when defense counsel asked W, on cross-examination, about his interviews of two eyewitnesses to the shooting who had been unable to identify the defendant as the shooter. The trial court overruled the state's objec- tion but cautioned that the door would be open for the state to question W, during its redirect examination, regarding who had identified the shooter. During redirect examination, the state then asked W how many people had identified the defendant as the shooter, and defense counsel objected, not on the basis of hearsay but because the testimony would be cumulative. The court overruled counsel's objection, and W testified that M, H, and T, who did not testify at the defendant's trial, had identified the defendant as one of the shooters. Thereafter, the defendant submit- ted a request to charge the jury with a third-party culpability instruction that named six individuals as potential culprits, including F and J, who was a friend of the defendant, whose fingerprints and DNA were found in the defendant's car, and who had been arrested on unrelated charges while in possession of a mask similar to one identified by witnesses as being worn by one of the shooters. At a charge conference, the trial court granted the defendant's request for a third-party culpability instruc- tion but determined that there was sufficient evidence to require the charge only as to J. Defense counsel countered that there was sufficient evidence to require a third-party instruction as to F, and the court responded that it would either give a general instruction without naming anyone or one that named only J. Following closing arguments, the court held a second charge conference, at which it reiterated that it would either name only J or refer generally to a third party, and, after the defendant repeated his preference for naming both F and J, the court gave an instruction that omitted the names of the potential third- party culprits. On appeal from the judgment of conviction, held: 1. The defendant's claim that the trial court improperly admitted hearsay evidence by allowing W to testify that M and T had identified the defen- dant as one of the shooters was unpreserved and, accordingly, was unreviewable: although defense counsel objected on hearsay grounds to W's testimony during the state's direct examination regarding M's out-of-court statements to the police, including M's identification of the defendant as one of the shooters, counsel's sole stated basis for objecting to W's testimony, during redirect examination, regarding M's and T's statements identifying the defendant as one of the shooters was that it was cumulative, and, accordingly, counsel failed to apprise the trial court that he continued to object to the admission of the challenged out-of-court statements on the basis of hearsay. 2. The defendant could not prevail on his claim that the admission, through W's testimony, of T's out-of-court statement identifying the defendant as the shooter violated his right to confrontation because, even if the admission of that statement violated the defendant's right to confronta- tion, any such error was harmless: the state satisfied its burden of proving that any error in admitting T's statement was harmless beyond a reasonable doubt, as that statement, which was cumulative of other evidence and which the state did not rely on or refer to during closing argument, was inconsequential in light of the overwhelming, indepen- dent evidence of the defendant's guilt, including testimony from numer- ous witnesses placing the defendant at the crime scene and demonstra- ting that he drove there in the car in which the shooters later fled, testimony from multiple witnesses that the defendant was one of the shooters, testimony from two witnesses that the defendant admitted that he was involved in the shooting, evidence establishing that the defendant was motivated by revenge against the driver of the black car, who previously had flirted with the defendant's girlfriend, K, and whose friends had been involved in an altercation with K's son several months before the shooting, and evidence of the defendant's consciousness of guilt, including evidence that the defendant returned the rental car the morning after the shooting, K's testimony that the defendant had denied hearing about the shooting the night it occurred but later devised and implemented a plan to flee to California in K's car, and evidence that the defendant was apprehended with $1000 in cash and a California address programmed in a navigation device in K's car. 3. The trial court did not abuse its discretion in declining to include the names of J and F in its third-party culpability instruction to the jury: although the trial court did not provide the jury with the exact instruction that the defendant sought due to that court's determination that there was sufficient evident to support a third-party culpability instruction as to J only, the court included the substance of the requested instruction, namely, that evidence had been presented that a third party may have committed the crimes for which the defendant was charged, which was consistent with the court's indication at two charge conferences that it would name only J in the instruction or refer generally to third parties, and with the defendant's stated preference that he did not want to omit F from the instruction; moreover, there was little evidence supporting a direction connection between F and the offenses with which the defendant was charged, and, even if this court had concluded that the trial court was required to identify J by name in the instruction, it was not reasonably possible that the jury was misled by the omission of J's name, as the court's instruction required the jury to consider the evi- dence presented implicating any third party, which necessarily included J, the defendant presented evidence implicating J, and defense counsel referred to J's possible culpability during closing argument, and, accord- ingly, the court's instruction provided the jury with sufficient guidance to allow it to consider all of the third-party culpability evidence and to determine the defendant's guilt in light of such evidence. Argued September 19, 2019—officially released February 25, 2020

Pursuant to statute (§ 14-60 (a) (3)), a motor vehicle dealer may loan a dealer license plate to a person who ''has purchased a motor vehicle from such dealer, the registration of which is pending,'' for a period of ''not more than thirty days in any year,'' and a dealer that has complied with the requirements of § 14-60 (a) is not liable for damages caused by an insured operator of the motor vehicle while the dealer license plate is displayed within that thirty day period. The plaintiffs, in three separate actions, sought to recover damages from the defendant D Co., a motor vehicle dealer, among others, for personal injuries sustained in an automobile accident involving a vehicle driven by the defendant M and displaying D Co.'s dealer license plate. On May 9, 2013, at approximately 7 p.m., M executed an agreement with D Co. in connection with his purchase of the vehicle from D Co., and D Co. loaned M a dealer license plate pursuant to § 14-60 (a) while the vehicle registration process was pending. The accident occurred on June 8, 2013, at approximately 3 p.m. The plaintiffs alleged, inter alia, that D Co. was liable for the damages resulting from the accident because it occurred beyond the thirty day period set forth in § 14-60 (a). D Co. filed a motion for summary judgment in each action, claiming that it was not liable because the accident had occurred within the statutory thirty day period and it otherwise had complied with the requirements of the statute. In granting D Co.'s motions for summary judgment and rendering judgments thereon for D Co., the trial court concluded, inter alia, that the June 8, 2013 accident occurred on the thirtieth day after D Co. loaned M the dealer license plate on May 9, 2013, because the day on which the loan of the dealer license plate occurred did not count for purposes of the statute. The trial court thus concluded that the accident occurred within the thirty day period. The plaintiffs appealed to the Appellate Court, which affirmed the judgments of the trial court, concluding, inter alia, that the trial court properly excluded the day on which the loan of the plate was made in calculating whether the accident occurred within the thirty day time limit of § 14-60 (a). On the granting of certification, the plaintiffs filed a joint appeal with this court. Held: 1. The Appellate Court correctly concluded that the trial court had properly excluded May 9, 2013, the date on which D Co. loaned the dealer license plate to M, for purposes of calculating the thirty day period under § 14- 60 (a), and, because May 10, 2013, was the first day of that period and the accident occurred on June 8, 2013, the accident occurred within the thirty day limitation period of § 14-60 (a): applying relevant principles of statutory construction to § 14-60 (a), which does not define the word ''days'' or specify how the thirty day period is to be computed, this court concluded that, in the absence of any explicit textual evidence to the contrary, the legislature intended the term ''days'' in § 14-60 (a) to be interpreted consistently with its established legal meaning as an indivisi- ble calendar day that runs for a twenty-four hour period from midnight to midnight rather than a fraction of a day, and, because D Co. loaned the dealer license plate to M at approximately 7 p.m. on May 9, 2013, and, therefore, not for a full calendar day on May 9, 2013, that date must be excluded for purposes of computing the thirty day period under § 14-60 (a); moreover, such a construction is consistent with the well established rule that, in the absence of statutory language requiring otherwise, the day of the act from which a future time is to be ascertained is to be excluded from the calculation, and this court uniformly has adhered to that rule as a matter of policy in order to ensure uniformity and predictability in the computation of statutory deadlines. 2. The plaintiffs could not prevail on their claim that a genuine issue of material fact existed as to whether the parties intended the date of the loan of the dealer license plate to be included in computing the thirty day period under § 14-60 (a), as the evidence on which the plaintiffs relied, including the terms of the loan agreement, related only to when the parties intended the loan agreement to begin running, and, as a matter of law, the intent of the parties does not bear on the issue of whether the date of the loan is to be excluded from the thirty day period, which is a question of statutory construction that depends instead on the intent of the legislature. Argued September 23, 2019—officially released February 25, 2020

Convicted of murder, conspiracy to commit murder, and four counts of assault in the first degree in connection with a shooting in which one person died and four others were injured, the defendant appealed, chal- lenging various evidentiary rulings and the trial court's decision to deny a motion for a continuance to allow him to retain an expert to respond to the testimony of W, whom the state belatedly disclosed to the defense and called as an expert witness on cell site location information. On the day of the shooting, the defendant and his friend, R, were driven by R's cousin to and from a housing complex where the shooting occurred. Approximately five to six months before his trial, the defendant filed a motion seeking disclosure of the expert witnesses the state intended to call and the opinions to which each witness was expected to testify. At a hearing on that motion approximately one week later, the court ordered the state to disclose to the defense any expert that it may ultimately select to testify about the proximity of the defendant's cell phone to a particular cell tower. Approximately three months later, the state provided the defense with a list of potential witnesses, including W, but did not identify him as an expert witness or describe the intended nature of his testimony. Approximately two months later, after voir dire commenced and seven days before evidence was to begin, the state provided the defense with W's resume and a copy of a certain computer software presentation that W had prepared and that purportedly charted the locations of the defendant's and R's cell phones around the time of the shooting. Thereafter, one day before evidence commenced, the defendant filed a motion in limine, seeking to preclude W's testimony. At the hearing on the defendant's motion, which the trial court conducted several days after evidence had begun, defense counsel requested that the court preclude W's testimony or, alternatively, grant a reasonable continuance of at least six weeks. The court denied the defendant's motion in limine insofar as he sought to exclude W's testimony, conclud- ing, inter alia, that the defendant had not suffered prejudice as a result of the late disclosure. The court also denied counsel's request for a continuance. On appeal, the Appellate Court affirmed the judgment of conviction, concluding, inter alia, that the trial court had not abused its discretion in denying the motions in limine and for a continuance. On the granting of certification, the defendant appealed to this court, claim- ing that, contrary to the Appellate Court's conclusion, the trial court had abused its discretion in permitting W to testify in light of the state's late disclosure of W as an expert or, alternatively, in declining counsel's request for a continuance to obtain his own expert on cell site location information. Held: 1. The Appellate Court incorrectly concluded that the trial court had not abused its discretion when it allowed W to testify without first granting the defense a reasonable continuance so that it could retain its own expert witness on cell site location information, and, because the trial court's error was harmful, the defendant was entitled to a new trial: there was no valid reason why the disclosure of W was not made until after voir dire began and only one week before evidence was to begin, and the defendant was prejudiced by the late disclosure, as W's testimony included information that was beyond the knowledge of the average juror, it was essential for the defense to be able to retain its own expert in order to meaningfully understand and challenge W's testimony, and the two brief continuances that the trial court did afford the defense to obtain clarification from W regarding certain changes that W had made to his computer software presentation before he was to testify, did not meaningfully alleviate that prejudice; moreover, contrary to the state's claim, defense counsel did not abandon his request for a continuance by not renewing it after the state's direct examination of W, as counsel noted numerous times after W's testimony that the defen- dant was prejudiced by the denial of counsel's request for a reasonable continuance, and counsel's statement that he was not seeking a further continuance was merely in response to the trial court's misunderstanding that the defense was seeking a continuance before proffering the testi- mony of its investigator on cell site location information; furthermore, the trial court's error of allowing W to testify without first giving the defense a reasonable continuance to obtain its own expert was harmful because, in view of the centrality of W's expert testimony to the state's case, which was the only objective evidence placing the defendant's cell phone in the same area as R's cell phone around the time of the shooting and the only evidence identifying the defendant as the second suspect in the shooting, this court could not conclude that it had a fair assurance that the error did not substantially affect the verdict. 2. This court declined to address the defendant's claims that the Appellate Court improperly upheld the trial court's exclusion of his investigator's testimony and that the Appellate Court incorrectly concluded that the defendant had failed to preserve his claim that the trial court was required to hold a hearing in accordance with State v. Porter (241 Conn. 57) before allowing W to testify because those claims were not sufficiently likely to arise during the defendant's retrial, and also declined to address the defendant's claim that the trial court abused its discretion by admitting evidence regarding his failure to appear in court on unre- lated criminal charges as evidence of consciousness of guilt, as the record could look different on retrial. Argued September 25, 2019—officially released March 3, 2020

The plaintiffs, K and her husband, sought to recover damages from the defendants, G, a physician, and G's medical practice, for personal injuries that K had suffered in connection with G's alleged negligence in, inter alia, failing to perform a proper and adequate episiotomy repair after the birth of the plaintiffs' son. G had performed an episiotomy to facilitate the delivery of the plaintiffs' son. After the delivery, G evaluated K and diagnosed her with a third degree episiotomy extension, which G repaired. After the repair was completed, G performed a digital examina- tion of K's rectum and determined that there were no breaks or defects in K's rectal mucosa. Although an exam of K's perineum the day after the delivery indicated no issues with the repair, K subsequently reported complications, including pain, an infection, and a rectovaginal fistula that required surgery. At trial, the plaintiffs' expert witness, Y, testified that the standard of care requires that a physician, after performing an episiotomy, correctly diagnose and repair the episiotomy and any extension thereof, which must involve a thorough rectal examination before the repair. Y also testified that G failed to satisfy the standard of care because, in failing to conduct a proper examination, G misdiag- nosed and repaired the episiotomy extension as a third degree rather than a fourth degree extension, and that this error led to the rectovaginal fistula. According to the defendants' expert, L, G complied with the standard of care, which required that the rectal exam be performed after rather than before the episiotomy repair. L also testified that G had correctly diagnosed and repaired a third degree episiotomy extension. Finally, another expert witness presented by the defendants testified that K's rectovaginal fistula was not caused by an unrepaired fourth degree episiotomy extension but, rather, an infection. The trial court instructed the jury that the plaintiffs had alleged that G breached the standard of care by failing to identify a fourth degree episiotomy exten- sion and by failing to properly examine and adequately repair a fourth degree extension. The court also charged the jury on the acceptable alternatives doctrine concerning the standard of care for conducting the digital rectal examination. The jury returned a verdict in favor of the defendants, finding that the plaintiffs had sustained their burden of establishing the standard of care but failed to sustain their burden of establishing that G breached the standard of care. On appeal, the plain- tiffs claimed, inter alia, that the trial court improperly instructed the jury by including a charge on the acceptable alternatives doctrine and limiting their allegations regarding breach of the standard of care. Held: 1. Although the trial court improperly instructed the jury on the acceptable alternatives doctrine, that charge was harmless under the circumstances of the present case, and this court declined the plaintiffs' request to abolish that doctrine: the inclusion of an acceptable alternatives charge in the court's instructions was improper when the testimony of both parties' experts failed to establish that conducting a rectal examination either before or after the episiotomy repair was an acceptable method of diagnosing the particular degree of the extension, as Y testified that the examination should be performed before the repair, whereas L testified that it should be performed after the repair and that an examina- tion prior to the repair generally was not an approved method of diagnos- ing the degree of the extension, and when the parties argued during summation that there was only one proper method of examination to properly diagnose the degree of the extension and neither party argued that G chose between two acceptable alternatives in performing the examination after the repair; nevertheless, the trial court's improper inclusion of an acceptable alternatives charge in its jury instructions was harmless, as that error would not have confused or misled the jury because, whether G properly performed the rectal examination mattered only if there was a fourth degree episiotomy extension, and the jury necessarily found that there was no fourth degree extension in finding that G did not breach the standard of care, and the improper charge did not otherwise interfere with the jury's determination regarding the credibility of the experts or exculpate G by suggesting that both methods of examination were accepted within the medical community; moreover, this court declined the plaintiffs' request to abolish the acceptable alter- natives doctrine, as it determined that this case, in which the doctrine was held to be inapplicable, was not the appropriate case for deciding whether the doctrine should be abolished. 2. The trial court's supplemental instruction, in response to the jury's request for clarification, that the plaintiffs' expert, Y, testified that an internal rectal examination must be performed prior to an episiotomy repair as a required component of the standard of care, did not improperly limit the plaintiffs' allegations regarding breach of the standard of care: the trial court's response to the jury's request for clarification was consistent with the evidence presented at trial and how the plaintiffs' counsel had argued the case to the jury, and nothing in the supplemental instruction negated the plaintiffs' allegation that, by breaching the standard of care in failing to perform an examination before the repair, G failed to diag- nose and repair a fourth degree extension; moreover, in reading the trial court's charge as a whole, this court determined that it was clear that the trial court instructed the jury that the plaintiffs' allegations regarding breach of the standard of care included insufficient inspection, diagnosis and repair of a fourth degree extension and, accordingly, would not have confused and misled the jury into determining that, even if a fourth degree extension had existed, the defendant did not breach the standard of care; furthermore, to the extent that the court's supplemental instruction did limit the plaintiffs' allegations, a second supplemental instruction by the court, which contained language nearly identical to the language the plaintiffs sought to include in the first supplemental instruction, cured any error in the first supplemental instruction. Argued October 15, 2019—officially released March 10, 2020

The named defendant, the Stamford Fire Department, appealed from the decision of the Compensation Review Board, which reversed the deci- sion of the Workers' Compensation Commissioner denying the plaintiff's claim for benefits under the statute (§ 7-433c) governing compensation for municipal police officers or firefighters with hypertension or heart disease. While employed as a firefighter, the plaintiff filed a claim for hypertension benefits pursuant to § 7-433c. The plaintiff subsequently retired, and the commissioner issued a finding and award, concluding that the plaintiff's hypertension claim was compensable. Shortly there- after, D, the plaintiff's physician, issued a report assigning a permanent partial disability rating of the heart for the plaintiff's hypertension, which was acknowledged in a subsequent stipulated finding and award, and D, in that report and a supplemental report, diagnosed the plaintiff with coronary artery disease. D concluded that the plaintiff's hypertension was a significant factor in the development of his coronary artery dis- ease. The plaintiff then pursued compensation for his coronary artery disease, claiming that it flowed from his initial hypertension claim. Following a hearing, the commissioner found that the plaintiff was neither diagnosed with nor filed a claim under § 7-433c for coronary artery disease until after he had retired. The commissioner concluded that the plaintiff did not suffer from coronary artery disease or the resulting disability while he was on or off duty as a regular member of a municipal fire department and that D's opinion that the plaintiff was developing coronary artery disease while he was employed as a fire- fighter was not sufficient to render the claim compensable under § 7- 433c. Accordingly, the commissioner dismissed the plaintiff's claim for benefits related to his coronary artery disease. The plaintiff appealed from that decision to the board, which reversed the commissioner's decision and remanded the case for further proceedings. The board concluded that, on the basis of D's unchallenged medical reports, it was reasonable to infer that the plaintiff's coronary artery disease was the sequela of his compensable claim for hypertension and that a cardiac event that occurs subsequent to an initial injury that is compensable under § 7-433c is not necessarily a new injury that would require the filing of a new notice of claim. On the defendant's appeal from the board's decision, held that the defendant could not prevail on its claim that the plaintiff was not entitled to benefits under § 7-433c for his coronary artery disease insofar as he was not diagnosed with such disease until after he retired from his position as a firefighter and as his coronary artery disease was a separate and distinct injury from his hypertension: a claim for heart disease that occurs after an initial, compensable claim for hypertension under § 7-433c may qualify for benefits without the need to file a notice of new claim, as long as there is a causal connection between the two injuries or conditions, and a claimant may pursue such a claim for heart disease even after retirement, as long as causation between the injury or condition that formed the basis for the initial, compensable claim and the subsequent heart disease is established; accordingly, because it was undisputed that the plaintiff's initial claim for hypertension was timely and compensable under § 7- 433c, and because the record contained unchallenged medical reports in which R concluded that the plaintiff's hypertension was a significant factor in the development of his coronary artery disease, the evidence was sufficient to uphold the board's conclusion that the plaintiff was entitled to compensation for his coronary artery disease under § 7-433c. Argued November 12, 2019—officially released March 10, 2020

The named defendant, the city of Stamford, appealed from the decision of the Compensation Review Board, which vacated the Workers' Compen- sation Commissioner's dismissal of the plaintiff's claim for benefits under the statute (§ 7-433c) governing compensation for municipal police officers or firefighters with hypertension or heart disease. In 2000, while employed as a police officer with the Stamford Police Depart- ment, the plaintiff was diagnosed with hypertension, and, in 2004, the commissioner concluded that the plaintiff's hypertension was compensa- ble under § 7-433c. The plaintiff retired from the police department in 2004, and, in 2014, he suffered a myocardial infarction as a result of coronary artery disease. The plaintiff then filed a claim under § 7-433c for compensation for his coronary artery disease and myocardial infarction, asserting that these events or conditions were the sequelae of his com- pensable claim for hypertension. The commissioner concluded that hypertension and heart disease are two separate diseases for purposes of § 7-433c and that the plaintiff failed to file a notice of new claim within one year of his diagnosis of heart disease, in accordance with the notice provisions of the Workers' Compensation Act (§ 31-275 et seq.), and dismissed his claim. The plaintiff appealed from the commis- sioner's decision to the board, which vacated the commissioner's deci- sion, concluding that a cardiac event that occurs subsequent to an initial, compensable injury under § 7-433c need not be deemed a new injury and that to require a new notice of claim for a subsequent manifestation of a compensable injury would be inconsistent with the way in which workers' compensation claims have been previously handled under the act. The board remanded the case to the commissioner to make indepen- dent factual findings with respect to whether the plaintiff's heart disease was caused by his hypertension or constituted a new injury. On the city's appeal from the decision of the board, held: 1. Contrary to the city's claim, the plaintiff satisfied the jurisdictional prereq- uisites of § 7-433c and was not required to file notice of new claim in order to pursue benefits under § 7-433c for his heart disease, and, accordingly, this court upheld the board's decision to vacate the commis- sioner's dismissal of the plaintiff's claim for benefits on the basis of the plaintiff's failure to file a notice of new claim; this court adopted the reasoning and result of the companion case of Coughlin v. Stamford Fire Dept. (334 Conn. ), in which this court held that, when a plaintiff has a compensable claim for hypertension under § 7-433c, he also may be eligible for benefits for subsequent heart disease if the heart disease is causally related to the hypertension. 2. This court determined that a claimant who suffers a compensable primary injury may also be compensated for a subsequent injury under § 7- 433c when the subsequent injury is the direct and natural result of the compensable primary injury, and whether a sufficient nexus of proximate cause exists between the two injuries requires a workers' compensation commissioner to use a substantial factor causation stan- dard; accordingly, because the commissioner in the present case dis- missed the plaintiff's claim for benefits without making an independent factual finding as to causation, this court directed that, on remand, the commissioner shall determine whether the plaintiff's hypertension was a substantial factor in the development of his heart disease. Argued November 12, 2019—officially released March 10, 2020