Datasets:

free-law

/

Caselaw_Access_Project_embeddings

like 4

Follow

FreeLaw 9

The petitioner Darryl Whitaker's petition for certification for appeal from the Appellate Court, 90 Conn. App. 460 (AC 24485), is denied.

The respondents' petition for certification for appeal from the Appellate Court, 91 Conn. App. 855 (AC 25128), is granted, limited to the following issue: "Did the Appellate Court properly conclude that the petitioner's claimed liberty interest in parole eligibility status was sufficient to invoke the habeas court's subject matter jurisdiction?" The Supreme Court docket number is SC 17575. Decided December 14, 2005 Steven R. Strom, assistant attorney general, in support of the petition. Timothy H. Everett, special public defender, in opposition.

The plaintiffs' petition for certification for appeal from the Appellate Court, 90 Conn. App. 626 (AC 25253), is denied.

The plaintiffs petition for certification for appeal from the Appellate Court, 91 Conn. App. 808 (AC 24942), is denied.

The petitioner Angel Luis Ortiz' petition for certification for appeal from the Appellate Court, 91 Conn. App. 484 (AC 25331), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 827 (AC 24643), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 90 Conn. App. 71 (AC 25668), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 90 Conn. App. 714 (AC 25252), is denied. Decided November 3, 2005 John Holdridge and Mark Rademacher, assistant public defenders, Michael K. Courtney and Barry A. Butler, senior assistant public defenders, in support of the petition. Timothy J. Sugrue, senior assistant state's attorney, in opposition. VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.

The petition by the state of Connecticut for certification for appeal from the Appellate Court, 92 Conn. App. 110 (AC 24082), is granted, limited to the following issue: "Whether the Appellate Court properly held that the trial court's charge on conspiracy was deficient because it did not set forth an essential element, the object of the conspiracy?"

Opinion VERTEFEUILLE, J. In this appeal, we are asked to determine the proper framework for analyzing a claim of interference with an employee's right to reinstatement under the Connecticut Family and Medical Leave Law, General Statutes § 31-51kk et seq. (leave statute). The plaintiff, Cendant Corporation, appeals from the trial court's judgment dismissing its appeal from a decision of the commissioner of labor (commissioner). The commissioner concluded that the plaintiff had violated the leave statute by failing to reinstate the defendant Kim Persky to her position with the plaintiff following a maternity leave. On appeal, the plaintiff claims that the trial court improperly affirmed the commissioner's decision because the commissioner employed an incorrect analytical framework in reaching his conclusion and because several of the factual findings made by the commissioner were not supported by substantial evidence. Specifically, the plaintiff claims on appeal that the trial court improperly affirmed the commissioner's decision because: (1) the commissioner incorrectly employed a strict liability standard in analyzing Persky's claim; (2) the commissioner improperly failed to allocate to Persky the burden of proving a causal connection between her leave and her loss of employment; (3) the evidence does not support the commissioner's conclusion that there was a causal connection between Persky's leave and her loss of employment; and (4) the evidence does not support the commissioner's conclusion that Persky would have retained her employment had she not taken leave. We disagree, and, accordingly, we affirm the judgment of the trial court. The trial court relied on the following facts from the administrative record. The plaintiff is a corporation that provides global business and consumer services, and was created following the merger of two other corporate entities in 1997. Persky had been employed by one of the plaintiffs predecessors and continued to be apart of the management team with the plaintiff following the merger. In May, 1998, Persky was promoted to the position of vice president and general manager of the plaintiffs "Sidewalk" business unit, which was created as a result of a joint venture between the plaintiff and Microsoft Corporation (Microsoft). The plaintiffs role in the joint venture was to provide a sales force to generate advertising revenue to support the Sidewalk website, which provided city-specific content related to entertainment, merchants, and other services. Persky oversaw the operations of the Sidewalk unit and managed the profits and losses of the unit. The Sidewalk unit was changed to a vendor-vendee relationship by written agreement in June, 1998. In that agreement, the plaintiff granted Microsoft the option to purchase the Sidewalk sales force. The agreement provided that, if Microsoft exercised this option, the plaintiff would use reasonable efforts to ensure a successful transition of the unit to Microsoft. Peter Atkins, a general manager at Microsoft, was Persky's Microsoft counterpart on the Sidewalk project. Persky and two of her employees had difficulty working with Atkins due to his lack of cooperation in managing the Sidewalk project. In November, 1998, Persky began reporting to Michael Wargotz, the president and chief executive officer of the plaintiffs lifestyles division, which included the Sidewalk unit. Persky immediately informed Wargotz of the difficulties of working on the Sidewalk project with Atkins. Persky also notified Wargotz that she would be requesting a maternity leave beginning in January, 1999. Jonathan Yee was thereafter selected to perform Persky's job while she was on leave. Persky and Yee worked together closely until Persky went on leave so that Yee could learn Persky's responsibilities with the Sidewalk unit. Persky began her leave on January 25, 1999. During her leave, Persky attempted to communicate with Wargotz through telephone calls and e-mail to remain current on developments with the Sidewalk unit, but Wargotz did not respond to her correspondence. Persky successfully had maintained contact with management during her previous maternity leaves, and she always had returned to the same or a better position after those leaves. Persky expected to return to her position at Sidewalk following her leave. In February, 1999, while Persky was on leave, Microsoft exercised its option to purchase the Sidewalk unit from the plaintiff. The plaintiff and Microsoft subsequently entered into a transition agreement, which voided the prior June, 1998 agreement, and set forth the terms of the sale of the Sidewalk unit to Microsoft. The transition agreement provided that the transition process would be completed by December, 1999. Wargotz informed Persky of the sale of the Sidewalk unit in March, 1999, and stated that he was no longer her manager. Following the reorganization of the plaintiffs management structure after the sale of Sidewalk, Per-sky was offered the opportunity to apply for several positions with the plaintiff, but no specific replacement position explicitly was offered to her. In July, 1999, a representative of the plaintiff informed Persky that it inteipreted her failure to accept any of the other positions as indicating her voluntary resignation from the plaintiff. In November, 1999, Persky filed a complaint with the state department of labor (department), alleging that the plaintiff had violated certain provisions of the leave statute by failing to reinstate her to her previous position following her maternity leave. Following a contested case hearing, the administrative hearing officer issued a proposed decision in September, 2002, concluding that the plaintiff had violated the leave statute and awarding damages to Persky. The plaintiff subsequently filed objections and exceptions to the hearing officer's decision, and the commissioner heard arguments concerning those objections and exceptions. The commissioner thereafter affirmed the hearing officer's decision, incorporating her findings of fact and conclusions of law into his final decision. The plaintiff appealed from the commissioner's decision to the trial court. The trial court thereafter concluded that the commissioner properly had determined that the plaintiff had violated the leave statute and had used the correct analytical framework in deciding Per-sky's interference claim. The trial court further concluded that there was substantial evidence in the record to support the commissioner's conclusions that Per-sky's position continued to exist after her leave, that Yee held that position, and that the plaintiff had no legitimate business reason for failing to reinstate Per-sky. The trial court therefore dismissed the plaintiffs appeal. The plaintiff appealed from the judgment of the trial court to the Appellate Court pursuant to General Statutes § 4-184, and we thereafter transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. With this factual background in mind, we turn to the plaintiffs claims. Additional facts will be set forth as necessary. I Because we previously have not addressed the state and federal leave laws in detail, we begin with a brief overview of their history and framework. The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (FMLA), is a federal statute that was enacted in response to "serious problems with the discretionary nature of family leave . . . ." Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 732, 123 S. Ct. 1972, 155 L. Ed. 2d 953 (2003). Specifically, Congress was concerned that, "when the authority to grant leave and to arrange the length of that leave rests with individual supervisors, it leaves employees open to [discretionary and possibly unequal treatment]." (Internal quotation marks omitted.) Id. Accordingly, to avoid forcing employees to choose between their family responsibili ties and job security, and to help employees "balance the demands of the workplace with the needs of families," FMLA entitles eligible employees to a certain amount of unpaid leave to attend to family responsibilities. 29 U.S.C. § 2601 (b) (1). The Connecticut leave statute is our state analogue to FMLA. Although this state originally had passed family leave legislation prior to the passage of FMLA, the legislature made a concerted effort to harmonize the state and federal leave provisions following the passage of FMLA in 1993. 39 H.R. Proc., Pt. 11, 1996 Sess., p. 3752. The legislature's initiative is reflected in an explicit statutory directive in the leave statute that ensures that its provisions will be interpreted to be consistent with FMLA. General Statutes § 31-51qq directs the commissioner to adopt regulations implementing the leave statute, and, in doing so, "[to] make reasonable efforts to ensure compatibility of state regulatory provisions with similar provisions of the federal [FMLA] and the regulations promulgated pursuant to said act." The statute's legislative history underscores the importance of harmonizing the state and federal leave provisions. During floor debate in the House of Representatives on the underlying bill, Representative Michael Lawlor noted that the bill would "merge the standards of both the federal and state family leave laws so as to reduce confusion to employers and employees in Connecticut who are affected by either of these two laws." (Emphasis added.) 39 H.R. Proc., Pt. 11, 1996 Sess., pp. 3752-53. Accordingly, FMLA jurisprudence guides our inteipretation of the provisions of the leave statute. We turn now to an examination of the specific rights afforded to employees under these statutes. "FMLA creates two interrelated substantive rights for employees. . . . First, an employee has the right to take up to twelve weeks of leave [for, among other things, the birth or adoption of a child, or to care for an ill spouse, parent, or child]. 29 U.S.C. § 2612 (a). Second, an employee who takes FMLA leave has the right to be restored to his or her original position or to a position equivalent in benefits, pay, and conditions of employment upon return from leave. 29 U.S.C. § 2614 (a)." (Citation omitted.) Liu v. Amway Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). This right to reinstatement, however, is not absolute. "FMLA does not entitle the employee to any rights, benefits, or positions [he or she] would not have been entitled to had [he or she] not taken leave. 29 U.S.C. § 2614 (a) (3) (B). It simply guarantees that an employee's taking leave will not result in a loss of job security or in other adverse employment actions." Liu v. Amway Corp., supra, 1132. Accordingly, under FMLA, an employer may refuse to reinstate an employee following his or her return from leave if the employee would have been terminated for some other reason even if he or she had not taken leave. Our state leave statute contains identical provisions. See General Statutes § 31-55ll. FMLA provides two distinct causes of action for an employee whose rights have been violated under that act. First, an employee may claim that her employer interfered with her rights under the act. Section 2615 (a) (1) of chapter 29 of the United States Code provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." An employee may also claim that her employer discriminated against her or unlawfully discharged her in retaliation for exercising her rights under FMLA. 29 U.S.C. § 2615 (a) (2). The leave statute provides for the same two causes of action. General Statutes § 31-5 lpp (a) (1) and (2). When asserting a FMLA violation, an employee may pursue one or both of these causes of action. In the present case, Persky claimed in her complaint that the plaintiff had interfered with her right to be reinstated to her original position following her leave. Accordingly, in this opinion, we address only the cause of action for interference and we examine the proper framework for analyzing a claim alleging interference with an employee's right to reinstatement. With this background in mind, we turn to the plaintiffs claims. II The plaintiffs primary claim on appeal is that the trial court improperly affirmed the framework used by the commissioner in analyzing Persky's interference claim. Specifically, the plaintiff claims that the trial court improperly affirmed the commissioner's analysis because: (1) the commissioner improperly determined that the plaintiff was strictly liable for interfering with Persky's right to reinstatement; and (2) the commissioner improperly allocated the burden of proof in analyzing Persky's interference claim. With respect to the strict liability standard, the plaintiff claims that holding an employer strictly liable for failing to reinstate an employee is inconsistent with the provisions in the leave statute that provide that the right to reinstatement is not absolute. The plaintiff further claims, with respect to the allocation of the burden of proof, that interference claims under the leave statute are akin to discrimination claims, and that, therefore, the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which places the ultimate burden of proof on the employee, is applicable to the claim in the present case. The defendants counter that the trial court correctly affirmed the commissioner's determination that, once an employee has shown a right to reinstatement under the leave statute, an employer is strictly liable for interfering with an employee's exercise of her rights under that statute. The defendants further claim that relevant case law and regulations implementing the leave statute support the burden-shifting framework used by the commissioner and affirmed by the trial court, and that the McDonnell Douglas Corp. burden-shifting framework is inapplicable to interference claims. We agree with the defendants. Although the plaintiff briefed separately its two arguments concerning the proper analytical framework for interference claims, we note that both claims address related aspects of that framework, and we therefore examine them together. We begin by noting that the parties disagree as to the appropriate standard of review with regard to the plaintiffs claims. The plaintiff contends that its claims concern the interpretation of previously unreviewed provisions of the leave statute and that we therefore should exercise de novo review. Specifically, the plaintiff claims that de novo review of its claims is warranted because the applicable burdens of proof in interference claims under the leave statute have not been reviewed by this court, and the available cases addressing the issue evince an inconclusive split of authority as to the appropriate burden allocation. The defendants counter that the plaintiffs claims on appeal do not involve questions of first impression, and that the trial court therefore correctly deferred to the commissioner's interpretation of the statute and regulations in question. We agree with the plaintiff. It is well established that "when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." South ern New England Telephone Co. v. Dept. of Public Utility Control, 274 Conn. 119, 127, 874 A.2d 776 (2005). This court has not reviewed previously the question of the proper analytical framework to be used in analyzing a claim of interference with an employee's right to reinstatement under the leave statute. Accordingly, we review the plaintiff's claims de novo. Because FMLA jurisprudence informs our interpretation of the leave statute in the absence of our own precedent, we turn to federal cases interpreting the relevant FMLA provisions for guidance. Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 73 n.6, 856 A.2d 364 (2003) ("[i]n construing a Connecticut statute that is similar to federal law, we are guided by federal case law"). Several federal Circuit Courts of Appeal have considered claims concerning an employer's interference with an employee's right to be reinstated to her position following leave. An examination of these decisions indicates that courts have employed one of two frameworks in analyzing such a claim. Most federal courts have used a framework wherein the ultimate burden of proof for overcoming liability for a FMLA violation is placed on the employer. One federal circuit, the Seventh Circuit; see Rice v. Sunrise Express, Inc., 209 F.3d 1008 (7th Cir. 2000); has used the McDonnell Douglas Corp. burden-shifting framework, which places on the employee the ultimate burden of proving entitlement to the right to reinstatement. We examine each approach in detail before undertaking our own analysis. The majority of federal courts considering interference claims under FMLA have set forth a burden-shifting framework that requires the employee to make an initial showing that she has been denied a right under FMLA and that the denial of that right was caused in part by her leave. See, e.g., Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) ("[i]n order to prevail on her [interference] claim . . . [the employee] need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her"); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (To allege a claim of interference an employee must establish that "she was denied her substantive rights under the FMLA for a reason connected with her FMLA leave. . [A] reason for dismissal insufficiently related to FMLA leave will not support recovery under an interference theory."). Once an employee has made this showing, liability attaches to the employer for a violation of FMLA. Unlike the showing required in alleging a discrimination claim under FMLA, which, by definition, requires an employee to demonstrate a discriminatory intent on the part of her employer, an employee alleging a claim of interference under FMLA does not need to prove the employer's intent for liability to attach to the employer. Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, 960 (In alleging a claim of interference with the right to reinstatement "the employee must demonstrate by a preponderance of the evidence only entitlement to the disputed leave. . . . [T]he intent of the employer is immaterial."). To underscore the immateriality of the employer's intent, some courts have described this attachment of liability to the employer absent a showing of intent as "strict liability." Cross v. Southwest Recre ational Industries, Inc., 17 F. Sup. 2d 1362, 1368 (N.D. Ga. 1998) ("[Interference] claims . do not require that an employee prove that the employer acted with any particular intent—a mere showing that the employee was entitled to the benefit and the employer refused to provide it suffices to establish liability under the FMLA. The FMLA thus imposes strict liability upon employers who deny an FMLA entitlement to a qualified employee."). As we explain more fully later in this part of the opinion, the use of the term "strict liability" signifies only that an employee need not prove the employer's intent when claiming that the employer interfered with her rights under FMLA. Accordingly, with respect to interference claims alleging a denial of reinstatement, this strict liability scheme does not mandate that an employer be held liable for failing to reinstate an employee without consideration of the employer's reason for failing to reinstate the employee. An employer may overcome the attachment of so-called strict liability by demonstrating, by way of affirmative defense, that an employee would have been terminated even if she had not taken leave. Throneberry v. McGehee Desha County Hospital, 403 F.3d 972, 977 (8th Cir. 2005) ("an employer who interferes with an employee's FMLA rights will not be liable if the employer can prove it would have made the same decision had the employee not exercised the employee's FMLA rights"); O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir. 2000) ("[w]e hold that when an 'eligible employee' who was on FMLA leave alleges her employer denied her FMLA right to reinstatement, the employer has an opportunity to demonstrate that it would have discharged the employee even had she not been on FMLA leave"). Accordingly, the framework used by the majority of federal courts holds an employer strictly liable for interfering with an employee's right to reinstatement, and places on the employer the ultimate burden of proving that the employee would have been terminated even if she had not taken leave. The Seventh Circuit Court of Appeals, however, has employed the McDonnell Douglas Corp. burden-shifting framework in analyzing interference claims, thus ultimately placing the burden of proving causation on the employee. In McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802, the United States Supreme Court established a now well-known burden-shifting framework governing claims of employment discrimination. In adopting this framework to analyze claims of interference under FMLA, the Seventh Circuit Court of Appeals reasoned in Rice v. Sunrise Express, Inc., supra, 209 F.3d 1018, that, because FMLA precludes an employee who takes leave from receiving "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave"; 29 U.S.C. § 2614 (a) (3) (B); an employee must always bear the ultimate burden of establishing that she is entitled to the benefit with which she claims her employer interfered. Rice v. Sunrise Express, Inc., supra, 1018. Accordingly, under the McDonnell Douglas Corp. framework as adopted by the Seventh Circuit Court of Appeals, "[i]f the employer wishes to claim that the benefit would not have been available even if the employee had not taken leave, the employer must submit evidence to support that assertion. When that burden of going forward has been met . . . the employee must ultimately convince the trier of fact, by a preponderance of the evidence, that, despite the alternate characterization offered by the employer . . . the benefit is one that the employee would have received if leave had not been taken." (Emphasis added.) Id. With these two approaches in mind, we turn to our analysis. Like FMLA, the leave statute is silent as to the appropriate analytical framework to be employed in analyzing an interference claim under the leave statute. As we previously have stated herein, however, our legislature has made clear its intention that Connecticut law conform to FMLA and federal regulations promulgated pursuant to the federal statute. We therefore endorse the framework employed by the majority of federal courts and conclude that the trial court properly affirmed the commissioner's application of the strict liability standard and his allocation of the burden of proof. We are persuaded that the framework employed by the majority of federal courts should apply to the leave statute for several reasons. First, we find the strict liability framework adopted by the majority of federal courts to be consistent with the mandatory language used in the FMLA provision and the leave statute prohibiting interference with an employee's rights. Specifically, the FMLA provision in question provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (Emphasis added.) 29 U.S.C. § 2615 (a) (1). Section 31-51pp (a) (1) of the leave statute similarly provides that "[i]t shall be a violation of sections 5-248a and 31-51kk to 31-51qq, inclusive, for any employer to interfere with, restrain or deny the exercise of, or the attempt to exercise, any right provided under said sections." This court previously has recognized the significance of the legislature's choice in electing to choose "shall" or "may" in formulating a statutory directive. "The words shall and may must . be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." (Internal quotation marks omitted.) Builders Service Corp., Inc. v. Planning & Zoning Commission, 208 Conn. 267, 304-305, 545 A.2d 530 (1988); Fenton v. Connecticut Hospital Assn. Workers' Compensation Trust, 58 Conn. App. 45, 53, 752 A.2d 65, cert. denied, 254 Conn. 911, 759 A.2d 504 (2000). We therefore adopt the reasoning that "Congress used the words 'shall be unlawful for an employer to [deny an employee's rights under the FMLA]' rather than the words 'may be unlawful to [to deny an employee's rights under the FMLA],' [to indicate that it] intended to hold employers strictly liable for denying FMLA provided rights to employees." Cross v. Southwest Recreational Industries, Inc., supra, 17 F. Sup. 2d 1368. We note that the plaintiff mischaracterizes the scope of the term strict liability in challenging this standard on appeal. Specifically, the plaintiff claims that the trial court improperly affirmed the commissioner's use of a strict Lability standard because such a standard implies that an employer must reinstate an employee following her leave, even if the employer had legitimate business reasons for not doing so. We disagree. The term "strict liability" has been used to distinguish the framework used for interference claims from the framework used for discrimination claims under FMLA. Specifically, in establishing an employer's liability for discrimination under FMLA, an employee must show a discriminatory intent on the part of the employer. By contrast, intent is irrelevant in establishing an employer's liability under an interference claim. It is in this sense only that an employer is strictly liable for interfering with an employee's FMLA rights. Contrary to the plaintiffs claim, none of the courts adopting the strict liability framework has interpreted this term to suggest that an employer is liable for failing to reinstate an employee even if the employer had legitimate business reasons for failing to do so. Indeed, FMLA and the leave statute both provide that an employee's right to reinstatement is not absolute. Specifically, § 2614 (a) (3) of FMLA provides in relevant part that "[n]othing in this section shall be construed to entitle any restored employee to . . . (B) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." Similarly, General Statutes § 31-51nn (c) (2), a provision of the leave statute, uses identical language. Moreover, the Eighth Circuit Court of Appeals recently has rejected explicitly the claim that the term strict liability applies to interference claims in the sense understood by the plaintiff in the present case. Throneberry v. McGehee Desha County Hospital, supra, 403 F.3d 977 ("FMLA . . . does not force an employer to retain an employee on FMLA leave when the employer would not have retained the employee had the employee not been on FMLA leave" [emphasis added]). Accordingly, we reject the plaintiffs argument that the trial court improperly affirmed the commissioner's use of a strict liability standard. We also find persuasive the burden-shifting analysis used by the majority of federal courts because this analysis is consistent with the regulations implementing FMLA and the leave statute. The federal regulations provide in relevant part that "[a]n employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. . . ." 29 C.F.R. § 825.216 (a). In order to make such a showing, "an employer would have the burden of proving that an employee would have been laid off during the FMLA leave period, and, therefore, would not be entitled to restoration." (Emphasis added.) 29 C.F.R. § 825.216 (a) (1). The leave statute contains identical regulations. See Regs., Conn. State Agencies § 31-51qq-24 (a). We agree with the reasoning of the Tenth Circuit Court of Appeals that the federal regulation "validly shifts to the employer the burden of proving that an employee, laid off during FMLA leave, would have been dismissed regardless of the employee's request for, or taking of, FMLA leave." Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, 298 F.3d 963. Several other federal courts also have been guided by 29 C.F.R. § 825.216 (a) in adopting the burden-shifting framework. See, e.g., Throneberry v. McGehee Desha County Hospital, supra, 403 F.3d 980; Bachelder v. America West Airlines, Inc., supra, 259 F.3d 1125; O'Connor v. PCA Family Health Plan, Inc., supra, 200 F.3d 1354; Parker v. Hahneman University Hospital, 234 F. Sup. 2d 478, 486 (D.N.J. 2002). We agree with these courts that a plain reading of 29 C.F.R. § 825.216 (a) clearly establishes the burden-shifting framework to be used in analyzing an interference claim, and we interpret our similar state regulation, § 31-51qq-24 (a) of the Regulations of Connecticut State Agencies, in the same manner. We therefore reject the plaintiffs claim that the regulation only explains the nature of the substantive right to reinstatement without establishing a definitive burden-shifting framework. We also reject the plaintiffs argument that the McDonnell Douglas Corp. burden-shifting framework should apply to the interference claim in the present case for several reasons. First, we note that, in view of the weight of authority adopting an alternate burden-shifting framework, we find unpersuasive the plaintiffs sole reliance on the reasoning of the Seventh Circuit Court of Appeals in Rice v. Sunrise Express, Inc., supra, 209 F.3d 1018, to support its contention that the McDonnell Douglas Corp. framework should apply to interference claims. Moreover, logic dictates that the McDonnell Douglas Corp. framework, which "is intended to provide guidance to fact finders who are faced with the difficult task of determining intent in complicated discrimination cases"; (emphasis added) Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d 518 (2002); is inapplicable in analyzing a class of claims, such as interference claims, for which intent is not a consideration. The Ninth and Tenth Circuit Courts of Appeal explicitly have rejected the use of the McDonnell Douglas Corp. framework for interference claims on precisely this basis. See, e.g., Liu v. Amway Corp., supra, 347 F.3d 1136; Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, 298 F.3d 963; Bachelder v. America West Airlines, Inc., supra, 259 F.3d 1125. Because we already have concluded that the FMLA regulation established the correct burden-shifting framework, and because the McDonnell Douglas Corp. framework was created explicitly to address claims where proof of an employer's intent is required, we reject the use of the McDonnell Douglas Corp. framework for analyzing interference claims under the leave statute. For all of the foregoing reasons, we conclude that the trial court properly affirmed the analytical framework used by the commissioner in analyzing an interference claim under the leave statute. In the present case, the trial court affirmed the commissioner's use of the strict liability standard, which does not require that the employee alleging a claim of interference prove the employer's intent. In deferring to the commissioner's legal conclusions, the trial court also implicitly affirmed the commissioner's choice to use the burden-shifting framework that placed the ultimate burden of proof on the plaintiff to show that Persky would not have been employed at the time she sought reinstatement. Accordingly, we conclude that the trial court properly affirmed the analytical framework employed by the commissioner. III The plaintiff also challenges the trial court's affirmance of several of the commissioner's factual findings. Specifically, the plaintiff claims that, regardless of the allocation of the burden of proof, the trial court improperly concluded that there was substantial evidence in the record to support the commissioner's findings that: (1) there was a causal connection between Persky's termination and her leave; and (2) Persky would have retained her position had she not taken leave. The defendants counter that the trial court properly determined that there was substantial evidence in the record to support the commissioner's findings. We agree with the defendants. As a preliminary matter, we state the applicable standard of review. In reviewing the commissioner's factual findings and conclusions, "[the court must] determine whether there is substantial evidence in the administrative record to support [these] findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003). With these standards in mind, we examine the plaintiffs claims. Because the question of whether Persky's termination was connected to her leave is inextricably linked to the question of whether she would have retained her position had she not taken leave, we examine these claims together. The plaintiff first claims that, regardless of where the burden of proof lies, the trial court improperly concluded that there was substantial evidence in the record to support the commissioner's findings that there was a causal connection between Persky's termination and her leave. The plaintiff further claims that the trial court improperly determined that there was substantial evidence in the record to support the commissioner's finding that Persky would have remained employed with the plaintiff had she not taken leave. The plaintiff claims that the factual findings in the record compel a conclusion that the plaintiff had legitimate business reasons for failing to reinstate Persky and that she would have been terminated if she had not taken leave. Specifically, the plaintiff contends that the trial court failed to appreciate the significance of the evidence in the record indicating that Persky's position had been eliminated due to corporate restructuring in connection with the sale of the Sidewalk unit, and that Persky's inability to work with Atkins, her Microsoft counterpart, would have resulted in the loss of her position if she had not taken leave. We disagree. The trial court cited the following evidence in support of its determination that there was substantial evidence in the administrative record to support the commissioner's conclusion that Persky's termination was causally connected to her leave. In her proposed decision, which was incorporated into the commissioner's final decision, the hearing officer stated: "The record reveals no evidence that the [plaintiff] intended to permanently replace [Persky] with Yee before she started her leave. Yee was regarded as a 'placeholder' when [Persky] went on leave. [Persky] was active in planning for the sale of [S]idewalk to Microsoft up until she started her leave. Only after she commenced her leave did Wargotz start to ignore [Persky's] attempts to keep current on the progress of the transition agreement. During her previous maternity leaves, the [plaintiff] had kept [Persky] up to date on what was transpiring in her departments. Up until her leave in 1999, [Persky] had been complimented on her willingness to take on the difficult role of watchdog or 'bad cop,' and she had been forthright and constructive in her dealings with Microsoft." The trial court also noted, in its memorandum of decision: "Shortly before Persky went on leave she received a very positive review and a 7.9 [percent] raise. . In addition, both [Vere Spandow, vice president of operations of the Sidewalk unit] and Yee testified that Persky was professional, and neither of them indicated having problems working with her. . No one informed [Persky] that she would not be returning to her position as vice president and general manager of Sidewalk when her leave ended. . As in Smith v. Diffee Ford-Lincoln-Mercury, Inc., supra, [298 F.3d 961] the timing of Persky's discharge also indicates a causal relation between her . . . leave and her dismissal." (Citations omitted.) The trial court further pointed to the following evidence and testimony to support its conclusion that there was substantial evidence in the administrative record for the commissioner to have found that Persky would have remained in her position had she not taken leave. "Yee, as Persky's temporary replacement, admitted that [Persky's position] continued to exist after the transition agreement was executed in February, 1999, and that many of the position's pretransition duties continued during the transition. . . . Yee retained Persky's title . . . and performed substantially similar duties to those that she had performed working with Spandow and Microsoft. . . . Spandow, who was one of Persky's [vice president level] subordinates, confirmed this fact as well. . . . Additionally, the controlling agreement between [the plaintiff] and Microsoft for the provision of transition services . . . provided evidence of the availability of Persky's position. . . . Finally, Spandow's testimony showed that he believed that both his and Persky's positions continued to exist after the tran sition and sale of Sidewalk was announced in February, 1999 . . . ." (Citations omitted.) We conclude that, on the basis of the evidence regarding Persky's prior leave history, the favorable reviews of her work performance, her cooperative and professional manner, and the continued availability of her position following her leave, the trial court properly determined that there was substantial evidence in the record to support the commissioner's findings that there was a causal connection between Persky's leave and the subsequent denial of her reinstatement, and that Persky would have retained her position had she not taken leave. We therefore reject the plaintiffs argument that the trial court improperly applied the substantial evidence test because it failed to recognize that the evidence in the record regarding Persky's inability to work with Atkins directly contradicted the commissioner's findings. Although the trial court had before it Atkins' testimony about an acrimonious relationship with Persky, it also had before it the commissioner's determination that he did not find Atkins' testimony regarding Persky's professionalism and attitude to be credible, and that he therefore accorded more weight to Yee and Spandow's testimony in this regard. Accordingly, the trial court in the present case properly determined that the commissioner's findings concerning the continued existence of Persky's position were supported by substantial record evidence in the form of persuasive testimony from Yee and Spandow. We therefore conclude that the trial court properly affirmed the commissioner's conclusion that the plaintiff had failed to show that Persky would have been terminated even if she had not taken leave. The judgment is affirmed. In this opinion the other justices concurred. The commissioner is also a defendant in this appeal. When discussing the defendants separately, we refer to the commissioner and Persky for ease of reference. Although the provisions of the leave statute and FMLA are virtually identical in all other respects, an eligible employee is entitled to up to sixteen weeks of leave under the leave statute as compared to the twelve weeks afforded to eligible employees under FMLA. See General Statutes § 31-51ll (a) (1). The leave statute also differs from FMLA in other respects not relevant to the present appeal. Ordinarily, "[t]he decisions of the Second Circuit Court of Appeals carry particularly persuasive weight in the interpretation of federal statutes by Connecticut state courts." Webster Bank v. Oakley, 265 Conn. 539, 555 n.16, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004). In the present case, however, the Second Circuit Court of Appeals explicitly has sidestepped the issue of which of the two analytical frameworks apply to FMLA interference claims. See Potenza v. New York, 365 F.3d 165, 168 (2d Cir. 2004) (stating that, "because [the plaintiffs] case involves retaliation rather than interference, we need not decide whether or not to adopt the Seventh Circuit's analysis in its entirety"), citing King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). Section 31-51qq-24 (a) of the Regulations of Connecticut State Agencies provides in relevant part: "An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer shall be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. . . . "(1) . . . An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. . . ." Although the hearing officer noted Atkins' testimony in numbered paragraphs under the heading "Findings of Fact," it is clear to us from the discussion and analysis sections of the hearing officer's decision, later adopted by the commissioner in his final decision, that the hearing officer did not find Atkins' testimony credible. We therefore construe the statements under the facts section only as a summary of Atkins' testimony, and not as acceptance of his testimony as credible. We do not address the merits of the plaintiffs remaining claims. Specifically, the plaintiff claims that the trial court improperly affirmed the commissioner's conclusion because: (1) the commissioner improperly determined that the plaintiff had violated the leave statute by failing to offer Persky an equivalent position when her original position was unavailable; and (2) the commissioner placed Persky in a better position than she would have been had she not taken leave. Because we already have concluded that the trial court properly affirmed the commissioner's conclusion that Persky's original position continued to exist during her leave and following the denial of her reinstatement, we do not reach these claims.

The defendant's petition for certification for appeal from the Appellate Court, 91 Conn. App. 17 (AC 25335), is denied.

Opinion McLACHLAN, J. The petitioner, Melvin Mitchell, appeals following the denial of his petition for certification to appeal from the judgment dismissing his amended petition for a writ of habeas corpus. The petitioner claims on appeal that the court improperly (1) denied his petition for certification to appeal, (2) denied his petition for DNA testing of evidence, (3) denied his motion for a continuance to permit DNA testing, (4) dismissed his petition for a writ of habeas corpus without a hearing and (5) took dispositive action on the petition for a writ of habeas corpus without the petitioner being present. We agree with the petitioner and reverse the judgment of the habeas court. In 1995, after a trial to the jury, the petitioner was convicted of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). He received a total effective sentence of twenty-five years in prison. This court affirmed the conviction. State v. Mitchell, 54 Conn. App. 361, 738 A.2d 188, cert. denied, 251 Conn. 910, 739 A.2d 1250 (1999), cert. denied, 528 U.S. 1171, 120 S. Ct. 1197, 145 L. Ed. 2d 1101 (2000). . On September 11,1998, the petitioner filed an amended habeas petition and, after a trial, the court denied the petition on May 17, 1999. He then filed a petition for certification to appeal, which was denied by the court. The petitioner appealed to this court, claiming that the habeas court abused its discretion in denying his petition for certification to appeal and improperly failed to determine that his trial counsel's performance constituted ineffective assistance of counsel. On January 25, 2002, this court dismissed the petitioner's appeal from the decision of the habeas court. See Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 2-3, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002). On June 6,2001, the petitioner filed his second habeas petition. On November 12, 2002, he filed an amended petition, alleging ineffective assistance of trial counsel, ineffective assistance of appellate counsel, ineffective assistance of habeas counsel, ineffective assistance of habeas appellate counsel and actual innocence. The petitioner also filed a petition for DNA testing of a sex crime kit and a motion to continue the trial to allow for the DNA testing. On January 5, 2004, the court heard the petitioner's petition and his motion and denied them both. The court then, sua sponte, dismissed the habeas petition without prejudice. The petitioner filed a petition for certification to appeal, which was denied. The petitioner filed a timely appeal with this court. He also filed a motion for articulation of the habeas court's decision. The court denied the motion for articulation. The petitioner first claims that the habeas court abused its discretion when it denied the petition for certification to appeal. The standard of review for a denial of certification to appeal from the dismissal of a habeas petition requires a two step analysis. First, the petitioner, must demonstrate that the denial constituted an abuse of discretion. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the court should be reversed on the merits. See id., 4. Here, the determinative issue is whether the court abused its discretion when it denied the petitioner's motion for a continuance and dismissed the petition for a writ of habeas corpus without a hearing. We conclude that it did and, therefore, the court abused its discretion in denying the petition for certification to appeal. The petitioner claims that the court improperly denied his petition for DNA testing of evidence. On January 5, 2004, the court denied that petition, dismissed his habeas petition without prejudice and informed the petitioner that according to Public Acts 2003, No. 03-242, § 7 (P.A. 03-242), the petition for DNA testing should be brought before the sentencing court. The court did not abuse its discretion when it denied the petition for DNA testing and, relying on P.A. 03-242 § 7, deferred the matter to the sentencing court. We conclude, however, that the court did abuse its discretion when it denied the petitioner's motion for a continuance and dismissed his petition for a writ of habeas corpus in its entirety. The applicable standard of review for the denial of a motion for a continuance is as follows. "[T]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives." (Internal quotation marks omitted.) State v. Hurdle, 85 Conn. App. 128, 134, 856 A.2d 493, cert. denied, 271 Conn. 942, 861 A.2d 516 (2004). Here, when the court denied the motion for a continuance and dismissed the petitioner's case, it reasoned that it would not be appropriate to have the case stay inactive on the docket while the petitioner brought his petition for DNA testing to the sentencing court and awaited the results of that testing, even though the petitioner had a statutory right to a hearing pursuant to P.A. 03-242, § 7. Although we recognize the importance of docket management, it is not in the interest of judicial economy to require the petitioner to file a separate petition with the sentencing court and then to refile a new petition for a writ of habeas corpus. Furthermore, the respondent commissioner of correction would not have suffered any prejudice by allowing the petitioner's case to remain on the docket until the petition for DNA testing had been decided by the sentencing court. The petitioner, on the other hand, was prejudiced by the denial because any new petition filed would be reached for hearing later than the one he already had filed. There is a substantial due process right in the petitioner's efforts to prove his actual innocence, particularly because he is incarcerated. The peti tioner was prejudiced by the denial of his motion for a continuance and the dismissal of his habeas petition. Accordingly, we conclude that the court abused its discretion by denying the petitioner's motion for a continuance. The court further abused its discretion when it dismissed the petitioner's case without a hearing. The petitioner made five claims in his petition for a writ of habeas corpus, including the actual innocence claim. Even if the court properly had dismissed the actual innocence claim as premature due to the lack of the DNA test results, the petitioner was entitled to a hearing on his newly raised ineffective assistance of counsel claims before the court dismissed the habeas petition in its entirety. In Mercer v. Commissioner of Correction, 230 Conn. 88, 93, 644 A.2d 340 (1994), our Supreme Court stated: "Both statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims. General Statutes § 52-470 (a) provides that [t]he court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require. In Negron v. Warden, 180 Conn. 153, 158 n.2, 429 A.2d 841 (1980), we noted that whenever a court is legally required to hear a habeas petition, § 52-470 (a) delineate [s] the proper scope of [the] hearing . The statute explicitly directs the habeas court to dispose of the case only after hearing the testimony and arguments therein. "In our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron . we observed that, pur suant to Practice Book § 531 [now § 23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. We emphasized the narrowness of our construction of Practice Book § 531 [now § 23-29] by holding that dismissal of a second habeas petition without an eviden-tiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence..... Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed." (Citation omitted; internal quotation marks omitted.) The petitioner raised claims in his amended habeas petition regarding counsel on his direct appeal and on his first habeas appeal. Those claims had not been raised before. Accordingly, at the very least, the petitioner was entitled to an evidentiary hearing on those claims. Therefore, we conclude that the court abused its discretion when it dismissed the petition for a writ of habeas corpus without a hearing. The judgment is reversed and the case is remanded with direction to reinstate the habeas petition, to grant the motion for a continuance and to refer the petition for DNA testing to the sentencing court. In this opinion the other judges concurred. Although a sex crime kit was prepared after the sexual assault underlying 1 he petitioner's conviction and was submitted as evidence at the petitioner's criminal trial in 1995, it was never subjected to DNA testing. On October 27, 2003, the petitioner learned that the sex crime kit was still in existence and in the possession of the clerk of the Superior Court for the judicial district of Hartford. "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different maimer]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 831, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001). Public Acts 2003, No. 03-242, § 7, codified at General Statutes § 54-102kk, provides: "(a) Notwithstanding any other provision of law governing post-conviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner's conviction and that the evidence sought to be tested contains biological evidence. "(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that: "(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; "(2) The evidence is still in existence and is capable of being subjected to DNA testing; "(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and "(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice. "(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that: "(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction; "(2) The evidence is still in existence and is capable of being subjected to DNA testing; "(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and "(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice. "(d) The costs of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the court may order in the interests of justice, except that DNA testing shall not be denied because of the inability of the petitioner to pay the costs of such testing. "(e) In a proceeding under this section, the petitioner shall have the right to be represented by counsel and, if the petitioner is indigent, the court shall appoint counsel for the petitioner in accordance with section 51-296." We note that although the court did not abuse its discretion in denying the petition requesting DNA testing, P.A. 03-242, § 7, does not limit requests for DNA testing to the sentencing court alone. Section 7 (a), codified at General Statutes § 54-1021ck (a), provides in relevant part: "Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence . . . . " (Emphasis added.) That provision does not prohibit the petitioner from filing a petition with the court. Accordingly, the court, had the authority to entertain the petition. We note that when the amended petition for a writ of habeas corpus was filed, prior to the enactment of P.A. 03-242, § 7, the issue of DNA testing was within the discretion of the court. The respondent argues that the petitioner waived any right to challenge the court's dismissal of the ineffective assistance of counsel claims when the petitioner's counsel failed to argue the claims after the petition was dismissed. We disagree. On January 5, 2004, the petitioner was scheduled for a pretrial hearing on the petition requesting DNA testing and the motion for a continuance. It is unreasonable to expect the petitioner's counsel to have argued the ineffective assistance of counsel claims at that pretrial hearing, particularly after the court, sua sponte, dismissed the petition for a writ of habeas corpus. Furthermore, it is also unreasonable to expect the petitioner's counsel to have gone forward with the ineffective assistance of counsel claims when his client was not present and when a hearing on those claims was not scheduled for that day. In light of our remand, it is unnecessary to reach the petitioner's fifth issue on appeal.

Opinion DRANGINIS, J. The defendant, Ronald Schiavo, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). On appeal, the defendant claims that (1) the jury charge was improper and (2) he was deprived of a fair trial due to prosecutorial misconduct. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. In early January, 2000, the defendant was living with Roland Collier and Arlinn Collier. They lived in the first floor apartment of a two floor apartment house located at 24 Wall Street in Waterbury. A friend of the Colliers, Jennifer Young, introduced the Colliers to the victim, Jomol Graham, for the purpose of purchasing drugs. On the afternoon of January 28, 2000, the defendant drove the Colliers to Ansonia so that Roland Collier could purchase drugs from Graham. Roland Collier was, however, unable to make the purchase. In the early morning hours of January 29, 2000, the defendant and the Colliers decided to break into Graham's car and steal the drugs that they knew were kept in the trunk of the car. The defendant took a jacket, sneakers and a briefcase from Graham's car and then drove back to the Colliers' apartment. The briefcase contained approximately $2000 in cash and approximately two ounces of cocaine. Roland Collier and the defendant divided the cocaine and cash between themselves, and then the Colliers and the defendant smoked cocaine for the next few hours. As the morning progressed, the three became increasingly worried about their actions and possible repercussions from Graham. Concerned for their safety, the defendant tossed the items they had stolen from Graham's car over the fence into the next yard, and he and the Colliers went upstairs to the second floor apartment where Roland Collier's sister, Carla Barbera, lived. The defendant and the Colliers sat around Barbera's kitchen table using cocaine. At some point during that time, the defendant removed a .38 caliber handgun from his pants pocket and placed it on the kitchen table. Meanwhile, Graham had discovered that his car had been broken into and that items were stolen. Suspecting that Roland Collier had broken into his car, Graham went to see Young, who offered to give him a ride to Waterbuiy. At approximately 8:30 a.m., the two arrived in Waterbury. They spoke to the Colliers' neighbor, Theresa Morin, and asked her if she knew where the owner of the car parked in front of 26 Wall Street was at that time. Morin pointed to 26 Wall Street and replied that the owner, Roland Collier, was either at home or at a store. Young went to move her car, and Graham walked across the street and entered Roland Collier's apartment. Young joined Graham, and together they searched for Graham's possessions in the Colliers' apartment. Unsuccessful, they left the apartment and went back to Young's car. Recalling that Roland Collier's sister resided in the second floor apartment, Young went back into the house. Young knocked on Barbera's door, which opened into the kitchen. After hearing Young knocking on the door, the Colliers ran and hid in another room. The defendant grabbed his handgun and stayed in the kitchen out of sight. Barbera opened the door and after a brief exchange, Young returned to her car and told Graham that Roland Collier was not in either apartment. Graham decided to speak to Barbera directly. The Colliers continued to hide in Barbera's apartment, and the defendant maintained his position in the kitchen. Barbera's apartment door was still open following her exchange with Young. Graham stuck his head and part of his body in through the opening of the door. As he looked through the opening of the door, the defendant immediately shot him in the forehead. Barbera asked the defendant why he had shot the victim, to which the defendant replied, "I don't know." The defendant then cleaned the drug paraphernalia off the kitchen table and left the second floor apartment with the Colliers. The Colliers and the defendant left the apartment in the defendant's car. As the defendant was driving away, he pointed his handgun in Young's direction. The defendant and the Colliers traveled together to Maine and then to New York and eventually went to Florida, where the defendant was apprehended. The handgun that the defendant used in the shooting was recovered in Maine. Graham died from the gunshot wound two days after being shot by the defendant. The defendant was arrested and charged with murder in violation of General Statutes § 53a-54a (a). On October 1, 2001, a mistrial was declared after a jury of twelve was unable to reach a verdict. On September 4, 2002, a second jury trial was conducted. The jury found the defendant not guilty of murder, but guilty on the lesser included offense of intentional manslaughter in the first degree with a firearm, in violation of § 53a-55a (a). The court sentenced the defendant to forty years incarceration. This appeal followed. Additional facts will be set forth as necessary. I The primary focus of the defendant's first claim is that the jury was misled by the court's instruction on self-defense. More particularly, the defendant claims that the court improperly instructed the jury on the (1) return of property exception to self-defense and (2) duty to retreat exception to self-defense. We disagree. Because the defendant did not preserve either claim for appeal, he requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for both of his claims. Finding the first two Golding prongs satisfied with regard to the defendant's first claim of instructional error, we will review that claim under Golding. We decline, however, to provide Golding review for the defendant's second claim of instructional error for reasons we will discuss. "The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury." (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003). We will address each of the defendant's claims regarding the court's instruction to the jury on self-defense in turn. A The defendant first claims that the court's instruction on the return of property exception to self-defense was misleading. We disagree. The following additional facts are relevant to our resolution of the defendant's claim. At trial, the defen dant admitted shooting Graham, but claimed that he had acted in self-defense. Both the state and the defendant submitted requests to charge on the issue of self-defense. The defendant, however, later withdrew his request to charge on the return of property exception to self-defense. The court gave the juiy a lengthy charge on self-defense, which included the following instruction addressing the return of property exception to self-defense. "There is another circumstance that makes the use of deadly force unjustified. If the assailant's — in this case, it's Mr. Jomol Graham — conduct appears motivated by his claim to property that the defendant possesses and the defendant . . . knows that if he surrendered the property that the assailant, Jomol Graham, would flee without harming him, then the defendant . . . may not use deadly force — must—must surrender the property." (Emphasis added.) Later, when the court summarized its charge in relation to self-defense, it charged that if the state had proved beyond a reasonable doubt that the defendant knew that Graham could flee without harming the defendant, then the defendant was not justified in using deadly force. The defendant did not take an exception to the court's charge or request a curative instruction. "Due process requires that a defendant charged with a crime must be afforded the opportunity to establish a defense. . . . This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified." (Internal quotation marks omitted.) State v. Morgan, 86 Conn. App. 196, 202-203, 860 A.2d 1239 (2004), cert. denied, 273 Conn. 902, 868 A.2d 746 (2005). It is well established that "[t]he test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance ofthejury." (Internal quotation marks omitted.) Id., 203. After careful review of the charge in its entirety, we are satisfied that it was not reasonably possible that the jury was misled by the court's instruction. Although the court inadvertently substituted the word "could" for "would" in its summary to the jury, it used the correct language when giving its lengthy charge to the jury. "We have recognized that when a court gives a lengthy jury instruction, a slip of the tongue may occasionally occur." (Internal quotation marks omitted.) State v. Serrano, 91 Conn. App. 227, 245, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). In this instance, the jury was given proper guidance regarding the return of property exception to self-defense, despite the court's slip of the tongue. Moreover, we are cognizant of the absence of any objection to the charge made on behalf of the defendant. "Where counsel . . . seeks to raise on appeal a potential defect in the jury charge which he did not raise at trial, his silence at trial is a powerful signal that, because of the posture of the case, he did not hear the defect in the harmful manner which he presses on appeal, or even if he did so hear it, he did not deem it harmful enough to press in the trial court. Wdien the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut." (Internal quotation marks omitted.) State v. Diaz, 86 Conn. App. 244, 254, 860 A.2d 791 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1081 (2005). Although we do not suggest that this principle negates the defendant's right to Golding review, in this instance it supports the state's proposition that the court's slip of the tongue did not violate the defendant's constitutional rights. We therefore conclude that the defendant clearly was not denied his constitutional right to a fair trial. Accordingly, the defendant's claim fails under the third prong of Golding. B The defendant next claims that the court improperly instructed the jury regarding the duty to retreat exception to self-defense and that he is entitled to Golding review of that unpreserved claim. We disagree that the defendant is entitled to Golding review. The defendant filed two written requests to charge on self-defense. In one of those requests, the defendant included language on the duty to retreat exception to self-defense. Within its charge to the jury, the court included an instruction on the duty to retreat, as requested. The defendant did not take an exception to the court's charge or request a curative instruction. On appeal, the defendant claims that the court should have added additional instructions to its charge to the jury relating to that exception. Specifically, the defendant claims that the defense of use of physical force in defense of premises would not require retreat "if the jury found that the defendant was a social guest of the dweller and that his attacker was neither a codweller nor a social guest." The defendant concedes that he did not preserve his claim because he failed to request such a more complete charge and did not take an exception to the charge given, which he had requested. We decline to provide Golding review for induced error. See State v. Alston, 272 Conn. 432, 456, 862 A.2d 817 (2005); State v. Gibson, 270 Conn. 55, 66-67, 850 A.2d 1040 (2004); State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004). By filing a written request to charge with specific language regarding the duty to retreat exception, the defendant essentially induced the court to provide the charge that it did on the duty to retreat. "To allow [a] defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal." (Internal quotation marks omitted.) State v. Cruz, supra, 106. As our Supreme Court has firmly established, Golding review is not available for induced error. State v. Alston, supra, 456. II The defendant's final claim is that he was deprived of a fair trial due to prosecutorial misconduct during cross-examination and closing argument. Despite making timely objections to the prosecutor's questioning during cross-examination, the defendant did not object to the final argument and did not raise a claim of prose-cutorial misconduct at trial and now seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. We disagree that the defendant was deprived of a fair trial. We begin by setting forth the applicable standard of review. "Typically, if a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain eixor doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. 239-40]. . In cases of unpreserved claims of prosecutorial misconduct, however, it is unnecessary for the defendant to seek to prevail under the specific requirements of . . . Golding . . . and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out . in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . . "Regardless of whether the defendant has objected to an incident of misconduct, a reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial. The application of the Williams factors, therefore, is identical to the third and fourth prongs of Golding, namely, whether the constitutional violation exists, and whether it was harmful. . . . Requiring the application of both Williams and Golding, therefore, would lead . to confusion and duplication of effort. Furthermore, the application of the Golding test to unchallenged incidents of misconduct tends to encourage analysis of each incident in isolation from one another. Because the inquiry must involve the entire trial, all incidents of misconduct must be viewed in relation to one another and within the context of the entire trial. The object of inquiry before a reviewing court in [due process] claims involving prosecutorial misconduct, therefore, is . . . only the fairness of the entire trial, and not the specific incidents of misconduct themselves. Application of the Williams factors provides for such an analysis, and the specific Golding test, therefore, is superfluous. In light of these observations, we conclude that, following a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the Williams factors to the entire trial." (Citation omitted; internal quotation marks omitted.) State v. Spencer, 275 Conn. 171, 177-79, 881 A.2d 209 (2005). "In examining claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial." (Internal quotation marks omitted.) Id., 179. Only if we conclude that prosecutorial misconduct has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial. In doing so, "we must determine whether the sum total of [the prosecutor's] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties. . . . This inquiry is guided by an examination of the following Williams factors: the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case." (Citation omitted; internal quotation marks omitted.) Id., 180. A The defendant claims that several comments made by the prosecutor during closing argument constituted misconduct. In his brief, the defendant intermingles those claims, arguing that the prosecutor maligned his theory of defense when she improperly appealed to the jury's passions by personalizing her remarks. On the basis of our review of the record, we conclude that the prosecutor did not engage in misconduct. As we oftentimes have stated, "[closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. . . . Therefore, because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial." (Citation omitted; emphasis in original.) State v. Chasse, 51 Conn. App. 345, 358, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). Without citing any supporting precedent, the defendant argues that the prosecutor's remarks were improper and constituted personalized comments that incited the passions of the jury. We disagree. We conclude that the remarks were nothing more than a permissible appeal to the jurors to consider the evidence and to use their common sense when evaluating that evidence. See State v. Lindo, 75 Conn. App. 408, 416, 816 A.2d 641, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003). Although the opening passage, "[h]ow do we measure a life," could have been phrased more artfully, we recognize that "[t]he occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the juiy's attention from the facts of the case." (Internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 589, 876 A.2d 1162 (2005). We cannot conclude that the prosecutor's comments in any way diverted the jury's attention from the facts of the case. The comments were not improper and did not constitute prosecutorial misconduct. B The defendant also claims that the prosecutor committed misconduct during cross-examination by asking misleading questions that implied that the defendant was changing his testimony from that given at his first trial. Because we conclude that the defendant could not have suffered any degree of prejudice in these circumstances, we need not decide whether the conduct was improper. See State v. Antonio A., 90 Conn. App. 286, 301, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005); State v. Goodson, 84 Conn. App. 786, 799, 856 A.2d 1012, cert. denied, 271 Conn. 941, 861 A.2d 515 (2004); see also State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990). The following facts are relevant to our resolution of the defendant's claim. The defendant testified in an effort to support his claim of self-defense. During direct examination, defense counsel asked the defendant to explain what he thought was going to happen when Graham entered the second floor apartment, to which the defendant replied that he thought that Graham was reaching for a gun to shoot him. That testimony was consistent with the defendant's testimony at his first trial. In an effort to impeach the defendant, the prosecutor attempted to elicit testimony from the defendant to the effect that he failed to mention, in both his statement to police and during his testimony at the first trial, that he thought Graham had a gun. Although the defendant admitted that he did not mention that fact in his statement to police, he quite forcefully replied numerous times that he had testified at his first trial that Graham was reaching for a gun. The court overruled defense counsel's objection. On redirect examination, however, the defendant referred to the transcript from his first trial and testified that his prior testimony was consistent with his present testimony. Our Supreme Court has observed that "prosecutorial misconduct may occur during the course of cross-examination of witnesses." State v. James G., 268 Conn. 382, 419, 844 A.2d 810 (2004). The record makes it clear that the prosecutor's questioning was an attempt to impeach the defendant's credibility by pointing out a prior inconsistent statement. "It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the stand, and another way previously, raises a doubt as to the truthfulness of both statements." (Internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 411, 692 A.2d 727 (1997). The prosecutor seemingly was unaware that the defendant's testimony at his first trial was in fact consistent with his present testimony. Her effort to impeach the defendant appears to be based on her mistaken understanding of the defendant's testimony at his first trial. Although the court overruled defense counsel's objection, defense counsel was able to rehabilitate the witness on redirect examination. As we have stated, "we will not speculate as to the reason [an] objectionable question was asked." State v. Camacho, 92 Conn. App. 271, 884 A.2d 1038 (2005). We find it questionable, however, whether the prosecutor's somewhat misguided attempt to impeach the defendant was anything more than an inadequate review of the transcript from the first trial. Even if we assume without deciding that the prosecutor's questions at issue were improper, we are not persuaded that her conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Internal quotation marks omitted.) State v. Serrano, supra, 91 Conn. App. 240. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . In determining whether the defendant was denied a fair trial [by virtue of prosecutorial misconduct] we must view the prosecutor's comments in the context of the entire trial." (Internal quotation marks omitted.) Id. The court allowed the questions; they were isolated and brief, and pursuant to our analysis of the six Wil- Hams factors, neither affected the integrity of the trial nor deprived the defendant of his due process right to a fair trial. The prosecutor's questioning during cross-examination did not distract from the critical issues in the case. The issues to be determined by the jury depended on the weighing of the credibility of several of the state's witnesses, who testified in a manner consistent with the defendant's having shot Graham without any provocation or intimidation from him. That testimony was contrasted by the defendant's version of events, which involved a fear that Graham was going to kill him. Although the credibility of the witnesses was central to the state's case, its case was overwhelmingly strong. Moreover, the state's case did not hinge merely on the credibility of one witness, which would have created a credibility contest between the defendant and that witness. Rather, the physical evidence supported the testimony of several eyewitnesses to the events leading to and during the shooting, including that of Barbera, who was in the kitchen when the defendant shot Graham. There was no evidence to suggest that those witnesses had any motivation to fabricate their account of the events leading to the shooting. The testimony of the witnesses, which was supported by the physical evidence, strongly supported the defendant's conviction. Finally, during cross-examination, the defendant vehemently denied that he had in any way altered his testimony from that given at his first trial. The court overruled defense counsel's objection to the prosecutor's questioning, and counsel was able to rehabilitate the defendant on redirect examination. Under those circumstances, we conclude that the prosecutor's conduct during cross-examination, when she questioned the defendant about his prior testimony, could not have prejudiced the defendant and deprived him of his right to a fair trial. The judgment is affirmed. In this opinion the other judges concurred. The second floor apartment was numbered 26 Wall Street. See footnote 1. General Statutes § 53a-19 (b) provides: "Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform." "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. See part I B. Both the state and the defendant also submitted supplemental requests to charge on the issue of self-defense. "An induced error, or invited error, is '[a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.' " State v. Cruz, 269 Conn. 97, 105 n.8, 848 A.2d 445 (2004). We note that "[a] trial court has no independent obligation to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence . Rather, it is the responsibility of the parties to help the court in fashioning an appropriate charge." (Citation omitted; internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 75, 663 A.2d 972 (1995). "The ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions . . . ." (Internal quotation marks omitted.) State v. Smith, 212 Conn. 593, 612, 563 A.2d 671 (1989). The prosecutor beganher closing argument with the following' challenged remarks: "How do we measure a life? In this case, we know that a life has been taken, the life of Jomol Graham. The defendant tells you that he took his life. No doubt. Yet, he stands here before you, the members of the jury, and asks you to say that it's okay, that it's justified. But we know that it's not okay. And how do we know that? We know it from the evidence. We know it from the lack of evidence. We know it from the things that are said that don't make any sense. We know it from the testimony of the witnesses. And we know it from the things that are disproven by their evidence. And that's really, in sum, what we talked to you about during voir dire as being your job, now, to evaluate all of the different evidence that you have before you." Included in the defendant's claim of prosecutorial misconduct is the assertion that the prosecutor improperly used the majority of her allotted time for closing argument in her final closing argument. That claim has no merit. "There is nothing to suggest that a closing argument must be made in a particular order or that the state's initial argument should contain the majority of its argument. Closing arguments must be fair and based on evidence. . . . We . . . must permit the state wide latitude in its decision to make the substantive portion of its closing argument during final closing argument . . . . " State v. Rupar, 86 Conn. App. 641, 656-57, 862 A.2d 352 (2004), cert. denied, 273 Conn. 919, 871 A.2d 1030 (2005). During cross-examination, the following exchanges took place relating to the defendant's testimony at his first trial: "[The Prosecutor]: And in fact, here today when you testified before this jury is the first time that you've ever said that you saw Jomol Graham reaching behind him with his arm pulling at— "[The Defendant]: No. "[The Prosecutor]: Okay. And would you also agree that you testified on September 27, 2001, regarding the facts that you are testifying [about] here today— "[The Defendant]: Yes. "[The Prosecutor]: — correct? And even when you testified back on that date one year ago, you never indicated, in fact, you saw Jomol Graham going for what you thought was a weapon? "[The Prosecutor]: My question for you was at this point — right now— that it's the first time that you are fully testifying that what you saw was the victim, Jomol Graham, reaching for a gun— "[The Defendant]: You're wrong. . . . "[The Prosecutor]: Is that correct? "[The Defendant]: No, that's not true. "[The Prosecutor]: You never testified, as you testified here today, that you actually saw— "[The Defendant]: No, read the transcript. "[The Prosecutor]: — Jomol Graham— "[The Defendant]: You're wrong. . . . "[The Prosecutor]: You never testified, as you did today, that you saw Jomol Graham reaching for a gun in his back pocket, correct? "[The Defendant]: I didn't just say that I saw him reaching for a gun. What I thought was that when he was reaching, that he was reaching for a gun."

Opinion DRANGINIS, J. These appeals concern claims raised by the defendants, Clifton E. Kennedy and Albert Lopez, who were codefendants at trial. The juiy found each defendant guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a), and larceny in the sixth degree in violation of General Statutes § 53a-119 and 53a-125b (a). On appeal, Kennedy claims that (1) there was insufficient evidence to support his conviction of robbery in the first degree and (2) the trial court improperly denied his motion for a mistrial. Lopez claims that (1) there was insufficient evidence to support his conviction of robbery in the first degree and unlawful restraint in the second degree, (2) his conviction of robbery in the first degree and unlawful restraint in the second degree violates the constitutional prohibition against double jeopardy and (3) the court improperly denied his motion for mistrial. We affirm the judgments of the trial court. The jury reasonably could have found the following facts. At approximately 10 p.m. on December 9, 2003, the victim, Cecile Lawrence, a University of Bridgeport security officer, was walking to her place of employment via Park Avenue. The weather was cold, and the victim wore a winter coat over her uniform. As she crossed Atlantic Street, she heard someone approaching from behind. She turned and saw two men, whom she subsequently identified as Kennedy and Lopez. Kennedy ordered the victim to give him her money or he would "do [her]." The victim described Kennedy as being very upset. He repeatedly threatened her by stating, "[G]ive me your money or I'll do you right here." The victim told Kennedy that she had no money, but he persisted, stating that he knew that she had money. The victim was afraid that she would be shot. She perceived an odor of alcohol on Kennedy and Lopez and believed that both men had been drinking. The victim was wearing a backpack. Kennedy pulled on the backpack forcing the shoulder straps to draw the victim's arms behind her. This permitted Lopez to unzip the victim's coat, rummage through her outer and inner coat pockets and the pocket of her shirt. Lopez removed the victim's keys, reading glasses and identification. Kennedy continued to threaten the victim by stating that he would "do [her]" then if she did not give them her money. Lopez informed him, however, that the victim did not have any money and told Kennedy not to "do her." Kennedy and Lopez took the victim's backpack with its contents and told the victim to walk away and not to look back. As the victim walked away, Kennedy again threatened her, stating, "Do not turn around or I'll do you." The victim walked to the campus security office, which was about one and one-half blocks away. She met her supervisor, Jermaine Alston, who was operating a campus security vehicle, and informed him that she had been mugged. Alston told the victim to get into the vehicle, and they drove around the area looking for the perpetrators of the robbery. The victim described the perpetrators as a black man and a Hispanic man. Alston and the victim saw two men going through a backpack on Atlantic Street. The victim recognized them as the men who had robbed her. Alston stopped the vehicle and got out. Kennedy ran away. Lopez began to walk away, refusing to answer Alston's question about where he had gotten the backpack. Alston scuffled with Lopez and subdued him until the police arrived and took Lopez into custody. Kennedy was apprehended by the police a few blocks from the scene. Most of the victim's belongings were recovered, except her cellular telephone, which was valued at approximately $200. After Kennedy and Lopez were taken into custody, the victim identified them as the men who had robbed her. She also identified them in court. Alston identified Lopez in court, as well, but he could not identify Kennedy. Both defendants were charged with robbery in the first degree, unlawful restraint in the second degree and larceny in the sixth degree. Their cases were consolidated for trial on June 16, 2004. The jury returned verdicts of guilty on October 6, 2004. Each of the defendants received a total effective sentence of eleven years in the custody of the commissioner of correction and three years of probation. These appeals followed. I Kennedy and Lopez both claim that there was insufficient evidence to support the jury's respective verdicts of guilty of robbery in the first degree in violation of § 53a-134 (a) (4). Lopez also claims that there was insufficient evidence to support the juiy's verdict of guilty of unlawful restraint in the second degree as an accessory. We do not agree with these claims. "The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 270, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). "In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference." State v. Conde, 67 Conn. App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). "[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Citation omitted; internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 629, 835 A.2d 895 (2003). "While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense [s], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather the evidence need only be reasonably susceptible of such an inference." (Citation omitted; internal quotation marks omitted.) State v. Glasper, 81 Conn. App. 367, 371, 840 A.2d 48, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). A Both Kennedy and Lopez claim that there was insufficient evidence to support their convictions of robbery in the first degree in violation of § 53a-134 (a) (4) because the jury reasonably could not have concluded that Kennedy represented by his words or conduct the threatened use of a firearm. More specifically, Kennedy and Lopez argue that the jury's verdicts were based on speculation and surmise because the meaning of the words "do you" is too vague to be construed as a threat to shoot the victim, particularly when there was no evidence that either of the defendants had a firearm. Kennedy and Lopez contend, therefore, that the state failed to prove beyond a reasonable doubt the firearm element of the statute. We are not convinced. The state charged, in the respective amended infor-mations, that "at the City of Bridgeport . on or about the 9th day of December, 2003, at approximately 10:35 p.m., at 296 Park Avenue within said City, the said [defendant] stole certain property from one CECILE LAWRENCE, and in the course of the commission of the crime he threatened the use of what he represented by his words or conduct to be a firearm, to wit: a handgun, in violation of Section 53a-134 (a) (4) of the Connecticut General Statutes." "Pursuant to § 53a-134 (a) (4), a person is guilty of robbery in the first degree when, in the commission of the crime of robbery, that person displays or threatens the use of what he represents by his words or actions to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. This portion of the statute is satisfied when the state has proven beyond a reasonable doubt that the defendant represented by his words or conduct that he has a firearm; the state need not prove that the defendant actually had a gun." (Emphasis added; internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 401, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). "Robbery occurs when a person, in the course of committing a larceny, uses or threatens the immediate use of physical force upon the victim. General Statutes § 53a-133." State v. Littles, 31 Conn. App. 47, 54, 623 A.2d 500, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993). "While there is no definition of the word threaten in the statutes, General Statutes § 1-1 (a) provides that the commonly approved usage of the language should control. . A threat is 1. an indication of something impending and usually undesirable or unpleasant . . . 2. something that by its very nature or relation to another threatens the welfare of the latter. . A threat has also been defined as any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action alone constitutes consent." (Citations omitted; internal quotation marks omitted.) State v. Littles, supra, 54, citing Hadley v. State, 575 So. 2d 145, 156, aff'd, 588 So. 2d 938 (Ala. Crim. App. 1991). "This definition does not require that a threat be explicitly uttered. . An implied threat is as effective as a stated threat, especially when the apparent ability to carry out the threat is overwhelming." (Emphasis added.) State v. Littles, supra, 54. In this case, Kennedy repeatedly told the victim to give him her money or that he would "do [her]." In support of their claim that the meaning of the expression "do you" is vague, Kennedy and Lopez rely on State v. Aleksiewicz, 20 Conn. App. 643, 569 A.2d 567 (1990). In Aleksiewicz, the defendant approached the victim after he had withdrawn $400 from an automatic teller machine. Id., 645. The defendant told the victim to give him his money or " 'you're dead.' " Id. The victim reported to the police that "the defendant was holding his hand inside a 't-shirt' when he demanded the money. At trial, [the victim] testified that the defendant held his hand flat against his abdomen in a 'coat like or jacket.' " Id., 646. This court reversed the conviction, concluding that the victim's testimony had not established definitely the firearm element of the crime because no gun was shown, and the defendant did not give any specific indication, by words or action, that he had a gun. Id., 647. The victim had not testified that the defendant had a weapon, and the trial court would not permit him to testify as to whether he believed that the defendant had a gun. Id., 649. This court found the trial court's view of the evidence to be significant. To reach its verdict, the jury had to speculate that the defendant had a gun. Id., 650. The state argues that the facts of Aleksiewicz are distinguishable and that the facts here are more consistent with those of State v. St. Pierre, 58 Conn. App. 284, 288, 752 A.2d 86 (victim testified defendant had weapon, but had no idea what weapon could have been), cert. denied, 254 Conn. 916, 759 A.2d 508 (2000). Here the victim, a security guard, testified that she was scared because she thought that she was going to be shot. Furthermore, after Lopez had ransacked the victim's pockets, he told Kennedy not to "do her" because she had no money. Kennedy then told the victim to walk away and not to look back or he would "do [her] ." The state concedes that although Kennedy and Lopez were standing in close proximity to the victim, the term "do you" is susceptible of several meanings. It points out, however, that if Kennedy was going to "do" the victim from a distance, as she was walking away, the jury reasonably could have inferred that Kennedy had threatened to shoot the victim. We agree that the jury reasonably could have inferred that "to do" the victim from a distance, Kennedy had threatened to shoot her if she turned around while she was walking away from him and Lopez. "Jurors do not live in a fishbowl. . In considering the evidence . . . □juries are not required to leave common sense at the courtroom door . A threat need not be explicitly uttered." (Citations omitted; internal quotation marks omitted.) State v. Glasper, supra, 81 Conn. App. 375. Viewing the evidence in the light most favorable to sustaining the verdicts, we conclude, on the basis of the cumulative evidence presented, including the reasonable inferences to be drawn therefrom, that there was sufficient evidence for the jury to find Kennedy and Lopez guilty of robbery in the first degree in violation of § 53a-134 (a) (4). B Lopez also contends that there was insufficient evidence to convict him of unlawful restraint in the second degree in violation of § 53a-96 (a). More particularly, he argues that Kennedy did not intend to restrain the victim when he pulled on the victim's backpack and held back her arms. We do not agree. The amended information as to Lopez alleged in relevant part that "at the City of Bridgeport . on or about the 9th day of December, 2003, at approximately 10:35 p.m., at 296 Park Avenue within said City, the said . . . LOPEZ did restrain another person, in violation of Section 53a-96 (a) of the Connecticut General Statutes." The state argues that the evidence established that Kennedy and Lopez confined the victim at the scene of the robbeiy without her consent. The state also argues that because the jury could have found Lopez guilty as an accessory, it offered evidence that Lopez acted with the mental state required for the commission of the offense by intentionally assisting Kennedy to engage in the conduct that constitutes the offense. See General Statutes § 53a-8. As we determined in part I A, there was sufficient evidence to support Lopez' conviction of robbery in the first degree as a result of the threatened use of a firearm. " 'Restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein 'without consent' means, but is not limited to, (A) deception and (B) any means whatever . . . ." General Statutes § 53a-91 (1). A threat is sufficient to interfere substantially with a person's liberty. See State v. Drake, 19 Conn. App. 396, 401, 562 A.2d 1130 (1989). In Drake, "[t]here was sufficient evidence for a reasonable jury to conclude that the defendant had confined the victim in her home without her consent. The defendant confronted the victim in her bedroom at 3 a.m. He told her to put down the [telejphone she was holding. He was larger than the victim and appeared to be almost desperate. He told the victim that he was on probation or parole and that he was running from the police because he could be sent back to jail. The defendant also told the victim that police with dogs were surrounding the house and that he would be shot. The victim testified that she felt terrorized and did not flee from the house because she was afraid the defendant would chase after her. This was sufficient evidence that the defendant's acts substantially interfered with the victim's liberty." (Internal quotation marks omitted.) Id., 400-401. In this case, too, there is sufficient evidence that Kennedy's threats and Lopez' opening of the victim's winter coat, ransacking her pockets and taking her keys and reading glasses caused the victim to fear for her life and overbore her free will to leave the scene. Furthermore, Lopez' argument that he could not be guilty of unlawfully restraining the victim because Kennedy was the person who took hold of the victim's backpack overlooks the active role Lopez had in searching the victim's person for money. As we noted, the jury does not leave its common sense at the courthouse door. The victim was approached by two men, one of whom threatened to "do [her]" if she did not give them her money. While Kennedy held the victim's backpack, Lopez took advantage of her immobility to search her pockets. The jury reasonably could have inferred from the facts in evidence that Kennedy and Lopez intentionally acted in concert to restrain the victim in order to rob her of her money. We conclude, therefore, looking at the evidence in the light most favorable to sustaining the verdicts, that there was sufficient evidence from which the jury could find Lopez guilty beyond a reasonable doubt of unlawful restraint in the second degree. II Kennedy and Lopez next claim that the court abused its discretion when it denied their motions for a mistrial. More specifically, they claim that their constitutional right to the presumption of innocence was denied by a suggestive pretrial identification procedure. We decline to review their claims for want of an adequate record. The following additional facts are relevant to the defendants' claims. Kennedy and Lopez contend that the primary issue at trial was the identification of the perpetrators of the robbery. On the day evidence commenced, marshals escorted Kennedy into the courtroom via a side door. Lopez apparently was escorted by marshals through public spaces, where he passed by the victim and other identification witnesses. Immediately after the court came onto the bench, counsel for Lopez made an oral motion for a mistrial that was joined by Kennedy's counsel. The court denied the motions, stating: "Well, it's going to be obvious to anyone who's a witness in this case that the two persons seated at the counsel table are the defendants. The motion is denied." The state argues that the claim is not reviewable because the record is inadequate. The state points out that there is no record of which, if any, of the witnesses saw Lopez in handcuffs and shackles and, if so, the effect the sight had on them or their ability to identify either Kennedy or Lopez. Counsel for Lopez noted that the hallway was crowded. The defendants did not question the witnesses as to whether they saw Lopez being brought into the courtroom. Neither Kennedy nor Lopez objected to the in-court identifications or moved to suppress them. We agree with the state that Kennedy and Lopez have failed to provide not only a record that the witnesses' seeing Lopez in restraints prejudiced their identification of him or Kennedy, but also a record of whether the witnesses actually saw Lopez in the hallway. Kennedy and Lopez have failed to develop a factual record at trial to permit this court to review the identification procedure for constitutional infirmity. See State v. Daniels, 248 Conn. 64, 80-81, 726 A.2d 520 (1999), overruled in part on other grounds, State v. Singleton, 274 Conn. 426, 438, 876 A.2d 1 (2005). We therefore decline to review the defendants' claims, as it was their responsibility to provide an adequate record for review on appeal. See Practice Book § 60-5, 61-10. Ill Lopez also claims that his conviction of robbery in the first degree and unlawful restraint in the second degree violate both the state and federal constitutional prohibition against double jeopardy. He argues that it is not possible to commit robbery in the first degree without restraining the victim. We are not convinced. "Traditionally we have applied the Blockburger [v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)] test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted rmder both statutes in double jeopardy: [Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial. . . . "The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. . . . Consistent with our well established jurisprudence on statutory construction, we begin with the language of the statute. . . . We are also mindful of well established principles that govern the construction of penal statutes. Courts must avoid imposing criminal liability where the legislature has not expressly so intended. . . . Accordingly, [criminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . The legislature bars multiple punishments expressly when it does not intend such punishment. . . . Statutory construction is a matter of law over which we exercise plenary review." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Browne, 84 Conn. App. 351, 368-69, 854 A.2d 13, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). We set forth the language of the counts of robbery in the first degree and unlawful restraint in the second degree that were alleged against Lopez in part I, as well as the language of the statutes under which the crimes were alleged. See footnotes 1 and 5. The state concedes, and we agree, that the crimes alleged in the first and second counts of the amended information as to Lopez arose out of a single transaction. We conclude, however, that the allegations of the subject amended information and the statutes under which the crimes were charged each contain an element the other does not. Count one alleged that Lopez stole property from the victim and threatened the use of a firearm. Count two alleged that Lopez restrained another person. General Statutes § 53-134 (a) (4) contains elements that § 53a-96 does not, namely, "displays or threatens the use of what he represents by his words and conduct to be a . . . firearm . . . ." General Statutes § 53a-96 (a) contains an element that § 53-134 (a) (4) does not, to wit, "restrains another person." Lopez has not identified any construction of the statutes at issue that would support a conclusion that the prohibited acts are not separate offenses or that the General Assembly did not intend to punish both prohibited acts simultaneously. Instead, Lopez has grounded his claim in the evidence, which is an impermissible test for double jeopardy analysis. See State v. Kirsch, 263 Conn. 390, 421, 820 A.2d 236 (2003); see also State v. Nixon, 231 Conn. 545, 550-51, 651 A.2d 1264 (1995); State v. Lonergan, 213 Conn. 74, 79, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). He posits that it is not possible for one to commit robbeiy without restraining the victim, e.g., the larceny cannot be completed unless the victim is prevented from walking away. The state's response points out that Lopez' argument is grounded in the evidence. The state also provides an example of robbery in the first degree that demonstrates that the crime can be completed without restraining a victim, to wit, a robber's threat of force could cause a victim to drop his property and flee. We can envision other scenarios under which robbery in the first degree is carried out by the threat of the use of a firearm during which the victim is not restrained. See General Statutes § 53a-133. For these reasons, Lopez' double jeopardy claim fails. The judgments are affirmed. In this opinion STOUGHTON, J., concurred. General Statutes § 53a-134 (a) provides in relevant part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rille, shotgun, machine gun or other firearm . . . ." The police did not recover a firearm. The victim testified as follows on direct examination: "[The Prosecutor]: . . . [A]fter the black man told you to give him your money or he'd do you, did he say anything else? "[The Witness]: Yeah. He was very upset. He was, like . I was scared. He was, like, give me your money or I'll do you. Give me your money. I told him I didn't have any money. He says I know you got money. I know you got money. He says give me your money or I'll do you right here. I'll do you right here. And I was scared. "[The Prosecutor]: What were you scared of? "[The Witness]: I was scared that he was going to shoot me. "[The Prosecutor]: Did you see a gun? "[The Witness]: No, I didn't see a gun." The victim also testified as follows: "[The Prosecutor]: . . . Did there come a point in time when you were released? "[The Witness]: Yes. "[The Prosecutor]: And would you describe for the jurors how that— what happened at that point in time . . . ? "[The Witness]: Well, they had [taken] my book bag, and they told me to walk. Walk straight, go straight ahead, don't look back or I'll do you, he says. Do not turn around or I'll do you." (Emphasis added.) General Statutes § 53a-96 (a) provides: "A person is guilty of unlawful restraint in the second degree when he restrains another person." The transcript reveals the following argument: "[Defense Counsel for Lopez]: The defense on behalf of Mr. Lopez has a request for a mistrial for the following reasons, Your Honor. My client, Mr. Lopez, was taken off the fifth floor elevator just a few minutes ago . in handcuffs and foot shackles. And he was marched down the hall to the courtroom. All the police officer witnesses in this case, the victim, a security guard, all were going to be witnesses who are part of the process of identification, because this is an identification case with regard to Mr. Lopez as being one of the two perpetrators alleged by the victim to have robbed her, the way they saw my client and they saw him brought into the courtroom under sheriff's escort. . . . [T]he other defendant, Mr. Kennedy, was brought in through this particular door here, which does not enter into the hallway. It leads directly down into the cell block eventually. . . . "And I don't know why my client was chosen to be brought out of the elevator that was — and down a crowded hallway into this courtroom, but I would object since it is an [identification] case. . All the . . . witnesses were outside for the state, five police officers, the victim, her boss from the University of Bridgeport, and I don't know who else, if any. But the defense would ask for a mistrial, Your Honor. . . . It's extremely prejudicial to him to be seen prior to evidence by all these witnesses in that position. In fact, if they saw him from the witness stand, they would not see him in either handcuffs or shackles because the handcuffs would be removed by the time they came in and his feet would have been under the defense table, and they wouldn't have noticed. So, for those reasons, Your Honor, due to the extreme prejudice my client has suffered, the defense on behalf of Mr. Lopez would ask for a mistrial. . . . "[Defense Counsel for Kennedy]: Your Honor, might I just be heard for a moment on the same issue? Your Honor, I would also like to join in [the] motion for a mistrial because identification is critical in this case, and it's a very, in my opinion anyway, a weak identification case. However, Mr. Kennedy was found with Mr. Lopez at the time of the arrest. So, any prejudice to Mr. Lopez would, by circumstances and inference, be prejudice to Mr. Kennedy. So, I would like to join in the motion, Your Honor." Lopez failed to raise this claim at trial and seeks to prevail in this court pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the claim because double jeopardy is a claim of constitutional magnitude. Lopez cannot prevail, however, because the constitutional violation clearly did not exist, and he clearly was not deprived of a fair trial. General Statutes § 53a-133 provides in relevant part: "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." Example: A telephones B and tells B to drop her money out the window of her home or A will bréale down the door and shoot B.

Opinion DRANGINIS, J. The defendant, Tyree D. Preston, appeals from the judgments of the trial court revoking his probation and imposing a two year sentence of incarceration. On appeal, the defendant claims that the court (1) improperly found violations of probation and (2) abused its discretion in revoking his probation. We conclude that both issues are moot and dismiss the appeal. The following facts and procedural history are relevant to the defendant's appeal. On September 28, 2001, the defendant was convicted of two counts of breach of the peace in the second degree in violation of General Statutes § 53a-181 and violation of probation in violation of General Statutes § 53a-32 and was sentenced to one year incarceration, execution suspended, for breach of the peace and one year incarceration, execution suspended, for violation of probation, followed by two and one-half years of probation. The defendant signed the notice of his conditions of probation on September 28,2001. The terms of the defendant's probation included the condition that he not violate any criminal law. During the defendant's period of probation, he was arrested and charged with assault in the first degree in violation of General Statutes § 53a-59, unlawful discharge of a firearm in violation of General Statutes § 53-203, illegal use of a facsimile firearm in violation of General Statutes § 53-206c (c) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On March 20, 2003, a revocation of probation hearing was held in which the court found that the defendant had violated the conditions of his probation. The court revoked the defendant's probation and sentenced him to an effective term of two years incarceration, which was the maximum sentence for the violation. This appeal followed. While this appeal was pending, the defendant pleaded guilty to attempt to commit assault in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-59 (a) (5) and conspiracy to commit assault in the first degree in violation of General Statutes § 53a-48 (a) and 53a-59 (a) (5), thereby eliminating any controversy as to whether he had engaged in the criminal conduct that gave rise to his violation of probation. See State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1 (2005). The defendant was sentenced to six years incarceration with five years special parole to run concurrently with his outstanding sentence. Accordingly, on September 14, 2005, we dismissed as moot the defendant's first claim. The defendant's only remaining claim on appeal is that the court abused its discretion when it revoked his probation. The state argues that this claim is also moot because the defendant pleaded guilty to the same criminal conduct that gave rise to the violation of probation charges, which it contends renders the appeal moot in its entirety. We agree that the defendant's claim is moot, but do so for reasons other than those advanced by the state. We begin by noting that mootness implicates the court's subject matter jurisdiction and is therefore a threshold issue for us to resolve. See State v. Singleton, supra, 274 Conn. 436. "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pen-dency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 125-26, 836 A.2d 414 (2003). We are mindful that "[t]he determination of whether a claim has become moot is fact sensitive . . . ."Ayala v. Smith, 236 Conn. 89, 94, 671 A.2d 345 (1996). While this appeal was pending, the defendant pleaded guilty to the same criminal charges underlying his probation revocation. As recently clarified by our Supreme Court, "[w]here, subsequent to a finding of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any live controversy about whether he engaged in the conduct for which his probation was violated." (Emphasis added.) State v. Singleton, supra, 274 Conn. 439. In Singleton, our Supreme Court reversed this court's decision regarding the defendant's appeal of his revocation of probation and expressly stated that, "because the defendant pleaded guilty to and was convicted of criminal conduct 'stemming from the same criminal conduct that gave rise to the violation of his probation,' his appeal from the trial court's judgment revoking his probation was moot when the Appellate Court decided that appeal because there was no controversy left regarding whether he had engaged in the criminal conduct for which his probation had been revoked." (Emphasis added.) Id., 436. Because the appeal was moot, this court lacked subject matter jurisdiction to decide the defendant's claim in Singleton. Id. An important factual distinction between Singleton and the present case is that in Singleton, the defendant challenged the trial court's determination that he had violated the conditions of his probation. Id., 429. In contrast, the defendant in this case is challenging both the court's determination that he violated the conditions of his probation and the court's revocation of his probation. At oral argument in this court, the state urged us to interpret the holding in Singleton to preclude the defendant from appealing from the court's judgment revoking his probationary status. To give such a broad reading to Singleton, however, ignores the fact that there are two distinct components of a revocation of probation proceeding and also ignores the purpose of the disposition phase of a revocation of probation proceeding. When a defendant violates the terms of his probation, it does not result automatically in the court's imposing any particular punishment. Quite the contrary, pursuant to the plain language of § 53a-32 (b), as interpreted by our Supreme Court, only after a court determines that a condition of probation has been violated, does it then proceed to the disposition phase of the violation of probation hearing in which it has broad discretion to fashion a punishment on the basis of established criteria. See State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004). "Under § 53a-32, once the trial court determines that the evidence has established a violation of a condition of probation, it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence." (Internal quotation marks omitted.) State v. Jones, 67 Conn. App. 25, 28, 787 A.2d 43 (2001). As we have expressed and in conjunction with § 53a-32 (b), "a finding of a violation of a condition of probation should not lead to a rote revocation of probation . . . . " State v. Baxter, 19 Conn. App. 304, 320, 563 A.2d 721 (1989). For these reasons, we decline to extend the holding in Singleton to claims challenging a court's exercise of discretion in revoking a defendant's probationary status. That issue was not addressed in Singleton. This reasoning, however, does not end our inquiry as to mootness. The state also argues that State v. McEl-veen, 261 Conn. 198, 802 A.2d 74 (2002), supports its proposition that because the defendant pleaded guilty to the conduct that formed the basis of the revocation of his probation, his appeal in its entirety is moot. While McElveen is instructive, it is not so merely because the defendant pleaded guilty to the underlying offenses. As we noted previously, "[t]he determination of whether a claim has become moot is fact sensitive . . . ." Ayala v. Smith, supra, 236 Conn. 94. In McElveen, supra, 217, the defendant already had finished serving his sentence at the time of his appeal. Although the court recognized that there was a collateral injury from which it could grant practical relief; id., 215-16; it dismissed the appeal as moot because there was no actual controversy between the parties. Id., 217-18. In the present case, there may be practical relief afforded the defendant. There is no longer, however, an actual controversy between the parties. The defendant currently is serving a six year sentence and that sentence was imposed to run concurrently with the two year sentence that he received for the violations of probation. In addition, the defendant received jail credit for the period of time served in connection with the revocation of probation judgments. Because there is no longer an actual controversy between the parties, we conclude that the defendant's second claim on appeal is also moot, and therefore we do not have subject matter jurisdiction. Accordingly, we do not reach the merits of the defendant's remaining claim. The appeal is dismissed. In this opinion the other judges concurred. At the time of his arrest, the defendant was on probation that had been imposed as part of three separate criminal sentences. The court found him in violation of probation in each case and his sentences were to run consecutively to one another. Because mootness implicates subject matter jurisdiction, it can be raised at any stage of the proceedings. See Wolosoff v. Wolosoff, 91 Conn. App. 374, 379, 880 A.2d 977 (2005). General Statutes § 53a-32 (b) provides: "If such violation [of probation] is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence." As stated previously, that action alone would not render a claim challenging the court's exercise of discretion in revoking probation moot. In this instance, had the defendant been sentenced to a term of six years incarceration to run consecutively with his outstanding sentence, rather than concurrently, or had the defendant not received jail credit for the time he had served in relation to the judgments revoking the defendant's probation, there would have been an actual controversy between the parties, and we would have had subject matter jurisdiction to decide the defendant's remaining claim on appeal.

Opinion McLACHLAN, J. The defendant, Eric Kelsey, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a) and 53a-134 (a) (3). On appeal, the defendant claims that the trial court improperly (1) admitted certain out-of-court statements into evidence at trial under the "adoptive admissions" exception to the hearsay rule and (2) denied his motion for a mistrial on the basis of the state's failure to produce exculpatoiy or potentially exculpatory evidence. We disagree and affirm the judgment of the trial court. The jury reasonably could have found the following facts. On August 15, 2001, the victim, Omar Celik, worked at the Miss Washington Diner located on Washington Street in New Britain. The diner was operated by his brother, Guven Celik. The victim lived in an apartment building next to the diner with a roommate, Erol Aydin, who also worked at the diner. Ashley Chicerchia, fifteen years old at the time, used drugs and paid for them by engaging in prostitution. She knew the victim because he was a regular customer of hers. On the morning of August 15, 2001, during the victim's shift, Chicerchia, Joseph Cupe, Rob Swain and Kevin Taylor had breakfast at the diner. While in the diner, Chicerchia noticed Juan Morales walking by and signaled to him to come into the diner. The victim saw all of them together in the dining area. At some point, the victim told Chicerchia that Aydin wanted to be her customer and to meet him at the apartment at 11 a.m. Shortly after Morales arrived, they all left the diner, and Chicerchia walked to the victim's apartment to have sexual relations with Aydin. While in the apartment with Aydin, Chicerchia noticed that he had a substantial sum of money in his wallet. At Aydin's request, she planned on returning to the victim's apartment at 9 p.m. Sometime between the first visit and the planned second visit to the victim's apartment, Chicerchia met with the defendant, Morales and Hector Fermaint, and they discussed how the four of them would rob Aydin of his money when Chicerchia returned to the victim's apartment later that evening. The defendant asked Chicerchia how much money was in the apartment. At about 9:20 p.m., they set off for the victim's apartment and arrived approximately ten minutes later. A1 three males were wearing sweatshirts or sweaters with hoods. After their arrival, Chicerchia gained entrance to the secured building by ringing the buzzer of a woman she knew who lived in that building. Chicerchia often used the woman's apartment to meet her customers and paid the woman with drugs. When Chicerchia was inside the building, she went to a side door and let the defendant, Morales and Fermaint into the building. She then knocked on the sliding glass door of the victim's apartment, and the victim opened the door and let her in. Aydin was not home. Chicerchia asked the victim to leave the door open, saying that it was too warm in the apartment. After Chicerchia sat on the couch, the defendant, Morales and Fermaint entered the victim's apartment through the open sliding glass door. They all had their hoods up and were wearing masks. The three males physically attacked the victim. The defendant had a knife, approximately seven or eight inches in length. Morales saw the defendant hit the victim on the top of his head with the handle of the knife. The victim was screaming, and Chicerchia saw the defendant stab him in the abdomen. They all ran out of the apartment and went back to the defendant's house. At his house, the defendant wiped blood off the blade of his knife onto his T-shirt. He then took off the T-shirt and put it into a plastic bag. The victim was taken to a hospital. His brother arrived shortly before the victim was taken into surgery and asked what had happened. The victim responded that he had been sleeping when two or three people attacked him. He indicated that their faces were covered, but that they ate meals at the diner. The victim's brother testified that the victim told him that "[t]hey had the morning meal and they left." The victim died during the surgical procedure. The cause of death was a stab wound to the chest and abdomen with injuries to internal organs. Chicerchia was questioned by the police and arrested on August 16, 2001. That same day, Morales met with the defendant and Fermaint at Edwin Otero's house. Morales, in the presence of the defendant, told Otero that "they did something crazy." The defendant and Morales said they went into a studio to rob someone and that the door was open. The defendant said that the victim tried to scream, so he stabbed him. At Otero's house, the defendant took an army type knife in a leather holder and wrapped it in a newspaper. He then put the knife in the microwave oven. Morales turned himself in to the police. The defendant and Fermaint knew that the police were looking for them. They went to the home of Ivan Matias. In the presence of the defendant, Fermaint told Matias that he, Morales and the defendant went to an apartment to rob a man, that the man started to yell and cry, and that they stabbed him. Fermaint and the defendant asked Matias if he would let them stay at the house. Matias let them stay in the basement for three days. On the second day, the defendant handed Matias a package and indicated that it contained a knife, and the defendant and Fermaint asked Matias to "get rid of it." Matias, without looking inside the package, threw it into the pond where he went fishing. Michael Baden, a sergeant with the New Britain police department, took part in the investigation of the homicide. In connection with the investigation, he inter viewed Cupe sometime in August, 2001, and seized two knives and a piece of stained cardboard in his possession. There was no indication that any of the seized items were involved in the homicide. The knives were kitchen knives, one a steak knife and the other a paring knife with a two inch blade; they were not army type knives. The items were placed in the detective bureau evidence room, but could not be located anytime thereafter. The defendant was arrested and charged with murder, felony murder and conspiracy to commit robbery in the first degree. The jury found the defendant guilty of felony murder and conspiracy to commit robbery in the first degree. The defendant filed motions for a judgment of acquittal and for a new trial, which were denied by the court. I The defendant claims that the court improperly admitted Matías' testimony as to statements made by Fermaint in the presence of the defendant the day after the homicide. Although the court would not admit the statements under the coconspirator exception to the hearsay rule, having concluded that the conspiracy had ended, the court did permit their admission under the adoptive admissions exception to the hearsay rule. The defendant claims that because the statements were not admissible under the coconspirator exception, they should not have been admitted as adoptive admissions because the silence of the defendant was insufficient to attribute Fermaint's statements to him. We disagree. "[T]he question of whether a third party statement may be used against the defendant as an adoptive admission by silence is an evidentiary issue . . . ." (Citations omitted.) State v. Schiappa, 248 Conn. 132, 164, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). "It is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Internal quotation marks omitted.) Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 779-80, 882 A.2d 653 (2005). "Generally, statements made within the accused's hearing, which are relevant and material, to which he makes no reply, may be given in evidence as indicative of conduct on his part, when the circumstances show that he heard, understood and comprehended the statement, and the facts are known to him and he had the opportunity to speak and the circumstances naturally called for a reply from him." (Internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 535, 498 A.2d 76 (1985). The statements at issue were those of Fer-maint as recounted during the testimony of Matías. Mafias testified that in August, 2001, after the homicide, Fermaint and the defendant came to his house. In the presence of the defendant, Fermaint told Matías that Chicerchia had indicated that a man had money and that he, Morales and the defendant went there to rob him; that when they went to the apartment to rob him, the man started crying and yelling, and that they then stabbed him; that Morales turned himself in to the police and Chicerchia was arrested; and that the police were looking for him and the defendant. At that point, Matías indicated that both Fermaint and the defendant had asked Mafias if they could stay at his house. Clearly, the statements were relevant and material to the defendant's involvement in the homicide. If the jury believed Matías, the defendant was part of the three person conversation, even though he did not state that he stabbed the victim. Although he made no reply, he had the opportunity to speak and to contradict Fer-maint's statements, and the circumstances naturally called for a reply from him. From Fermaint's and the defendant's asking Matías to let them stay at his house, it is evident that the defendant heard and understood Fermaint's comments about the incident and the fact that the police were looking for both of them. The circumstances further indicate that the defendant heard and understood Fermaint's statements because the next day they both asked Matías to dispose of a knife. The defendant handed him a package and indicated that it contained a knife. Even if we had determined that the court improperly admitted the testimony of Matías as to Fermaint's statements, the admission would not have been harmful. "Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. . In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn. App. 383, 399, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004). "The standard for determining whether a nonconstitutional error is harmful is whether it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 397, 796 A.2d 1191 (2002). Fermaint's statements, as recounted in the testimony of Matías, were merely cumulative. Immediately prior to Fermaint's testimony, the jury heard the testimony of Otero. His testimony, including a previous written statement he gave to police that was read before the jury, indicated that Morales, Fermaint and the defendant came to his house after the homicide. Morales and Fermaint indicated that they "did something crazy" and that they stabbed a man in the chest. The defendant and Morales stated that they went to an apartment to rob a man, and the defendant indicated that he stabbed the man when he started to scream. The defendant, when at Otero's house, took an army type knife in a leather holder out of his underwear, wrapped it in a newspaper and put it inside the microwave. Given that testimony, the admission of which has not been challenged on appeal, and the testimony of Chicerchia and Morales, it is not reasonable to conclude that the outcome of the trial would have been any different if the challenged testimony had been excluded. II The defendant next claims that the court improperly denied his motion for a mistrial, which was based on the failure of the police to preserve exculpatory or potentially exculpatory evidence and the state's failure to produce it in response to his motion for discovery. Specifically, the defendant argues that the failure to produce the requested evidence violated his due process rights because (1) the court failed to undertake the requisite analysis under State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), and (2) he was deprived of the opportunity to meaningfully cross-examine witnesses. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during a trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court. . . . Put another way, [o]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant's case such that it denied him a fair trial." (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 87 Conn. App. 93, 99, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). The misplaced evidence at issue in this action consisted of two knives and a piece of stained cardboard that Baden took from a storage shed at Cupe's residence dining his interview in August, 2001. Chicerchia identified Cupe as one of the men who had breakfast with her at the diner on the morning of the victim's death. The defendant argues that because the victim identified his assailants as the men who had breakfast at the diner that morning and because the victim died from a stab wound, the two knives and the piece of cardboard with a "blood-like" stain recovered from Cupe was exculpatory or potentially exculpatory evidence. With respect to the claim that the unpreserved evidence was exculpatory, "[i]n Brady v. Maryland, [373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment]. . . . The United States Supreme Court . in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), [held] that undisclosed exculpatory evidence is material, and that constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability suffi cient to undermine confidence in the outcome." (Citation omitted; internal quotation marks omitted.) State v. Ross, 269 Conn. 213, 304, 849 A.2d 648 (2004). The defendant did not demonstrate that the state failed to disclose exculpatory evidence. "Exculpatory has been defined to mean [clearing or tending to clear from alleged fault or guilt; excusing." (Internal quotation marks omitted.) State v. Falcon, 90 Conn. App. 111, 121, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). There was no indication that any of the items seized from Cupe were involved in the homicide. The knives were kitchen knives, one a steak knife and the other a paring knife with a two inch blade; they were not army type knives. The murder weapon was described as an army type knife, approximately seven to eight inches in length. Further, Chicerchia testified that Cupe was not involved at all in the planning of the robbery or the homicide. The fact that the victim stated that his assailants had eaten breakfast at the diner that morning is insufficient to warrant a different conclusion, given the absence of any other evidence to show that Cupe stabbed the victim or that the knives and cardboard were in any way connected to the homicide. It should be noted that the victim stated that his assailants wore masks, so identification would be problematic. Moreover, one of the participants in the attempted robbery, Morales, was at the diner that morning. Unfortunately, the victim made only a few statements before being taken to surgery and was unable to provide any additional information. With respect to the defendant's claim that the unpre-served evidence was potentially exculpatory, it is true that the good faith or bad faith of the police in failing to preserve potentially useful evidence cannot be dis-positive of whether a criminal defendant has been deprived of due process of law. State v. Morales, 232 Conn. 707, 726, 657 A.2d 585 (1995). In the present case, there is no claim that the police or the state intentionally disposed of the knives and cardboard; the defendant does not allege bad faith in connection with the loss of those items. When evidence is lost that is potentially exculpatory, courts engage in a balancing test as set forth in State v. Asherman, supra, 193 Conn. 724, to determine whether the defendant has been afforded due process of law under the state constitution. See State v. Morales, supra, 720. "[T]he trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence." (Internal quotation marks omitted.) Id., 727. The defendant claims that the court failed to undertake the requisite analysis under Asherman. That claim is without merit. As previously noted in footnote 2, the court incorporated its remarks from the denial of the defendant's oral motion for a mistrial on December 11, 2003, as its reasons for the denial of the defendant's postverdict motion for a new trial on March 2, 2004. The court, in considerable detail, gave its reasons for concluding that the misplaced knives were not material to the homicide, that there had been considerable testimony as to the circumstances surrounding their seizure and loss, and that there had been no prejudice to the defendant, given the totality of the evidence presented at trial. In fact, the court found that defense counsel had conceded that no further evidence needed to be presented in order to rule on the motion for a mistrial on the basis of the unavailability of the two knives and cardboard and that, in fact, the absence of those items may have been helpful to the defendant's case. The court properly applied the balancing test set forth in Asherman. The defendant also claims that the unavailability of the unpreserved evidence precluded him from meaningful cross-examination of witnesses. "It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The test is whether the opportunity to cross-examine existed, not whether full use of such opportunity was made. . In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial." (Citations omitted; internal quotation marks omitted.) State v. Swinton, 268 Conn. 781, 832-33, 847 A.2d 921 (2004). The defendant argues that he could not meaningfully cross-examine Cupe and the state's witnesses about the missing knives. He contends that if the knives had been available and could have been tested, he could have established that Cupe was involved in the planning of the robbery and had stabbed the victim. That argument is pure speculation. Other than being one of several people at the diner on the morning of the homicide, no testimony or other evidence was presented to connect Cupe with those crimes. The missing knives, as noted by the court, did not match the description given of the murder weapon. The defendant questioned Baden and Detective Lawrence Betterini at length about the items, as to when they were seized, from whom they were taken and the failure of the police department to locate them for the trial. The court did not restrict the defendant's cross-examination of any of the state's witnesses with respect to the issue of the unpreserved evidence. Furthermore, the jury heard substantial evidence about the knife that was disposed of by Mafias. The defendant is claiming, in reality, that the absence of the knives and the cardboard warrants a mistrial regardless of the latitude he was given in cross-examining witnesses and arguing police incompetence in the investigation in his closing argument to the jury. A trial court is not required to take such a drastic action, even if the state's failure to preserve evidence has adversely affected the defendant's right to a fair trial. "Rather, the trial court may fashion another remedy that appropriately ameliorates or offsets the prejudice that the defendant has suffered as a result of the unavailability of the evidence." State v. Morales, supra, 232 Conn. 729. In this case, the court ameliorated any potential prejudice to the defendant by allowing unfettered cross-examination of the state's witnesses regarding the loss of the evidence and in allowing his closing argument to focus on the state's failure to produce the requested items that were seized from Cupe. We conclude that the court's denial of the defendant's motion for a mistrial reflected a sound exercise of its discretion. The judgment is affirmed. In this opinion the other judges concurred. The jury found the defendant not guilty of the charge of murder in violation of General Statutes § 53a-54a (a). The defendant made an oral motion for a mistrial on December 11, 2003, after the conclusion of evidence but before the jury returned its verdict, which motion was denied. On December 17, 2003, the defendant filed a postverdict motion for a new trial. The court ruled on the motion on March 2,2004, prior to sentencing the defendant. It denied the motion and, in doing so, stated that it was incorporating its remarks from its previous denial on December 11, 2003. The court stated: "So, for the first time today, on the third day of jury deliberations, this issue of a mistrial is being raised. Counsel for the accused has conceded during his argument that whatever hearing [with respect to unpreserved evidence that] might have been held has, in fact, been held by way of the testimony of Detective Baden and Detective Lawrence Betterini that the chain of custody, such as it is, or, perhaps, the chain of lack of custody has been established through the testimony of those two officers. Counsel for the accused had ample opportunity to cross-examine both of those gentlemen and did so, and the record, as developed in the course of that examination, is as indicated by the state's attorney, which is that there's no apparent connection between those knives and the knife that's been testified to as the murder weapon. So, counsel did have ample opportunity to establish a record, did establish a record, and the record indicates that there's unlikely to have been any connection between those knives and the knife that has been testified to as the murder weapon here. "So, tlie absence of those knives, it seems to me, does not establish any substantial and irreparable prejudice to the defendant's case. To the contrary, defense counsel made mention on several occasions during closing argument to the jury of the sloppiness with which the New Britain police department handled those knives and, I think, made effective use of the fact that those knives, although seized contemporaneously with the commission of 1his crime, were, nevertheless, lost, never tested, never produced. So, rather than their absence being substantially and irreparably prejudicial to the accused, it seems to me that counsel made good use of the absence of those knives and the police department's failure to produce them and or test them. "So, again, rather than being prejudicial, it seems to me that their absence has actually been helpful to the accused, especially in view of the record which is that they really bear no resemblance to the knife that has been identified or described as the murder weapon. "So, I can't find that there has either been an error or a legal defect in the proceedings or any conduct inside or outside the courtroom which has resulted in substantial and irreparable prejudice to the defendant's case. Therefore, the motion for a mistrial is denied." Even if the unpreserved evidence was exculpatory, it was not material because, for the reasons previously stated, the results of the trial would not have been different had it been produced and admitted.

Opinion DUPONT, J. The defendant, Joseph Alexander James, entered a plea of nolo contendere to the charges of criminal attempt to possess a controlled substance with intent to sell in violation of General Statutes § 53a-49 and 21a-277 (b), and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b), and appeals from the denial of his motion to suppress, which he filed pursuant to General Statutes § 54-94a. Specifically, he claims that the arresting police officers improperly advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that he did not knowingly and intelligently waive his Miranda rights. At oral argument, counsel for the defendant waived his first claim. We therefore need only address the defendant's second claim on appeal. The defendant argues that the totality of the circumstances demonstrates that he did not knowingly and intelligently waive his Miranda rights. We disagree and affirm the judgment of the trial court. The following facts and procedural history are relevant to the resolution of the defendant's claims on appeal. After a "controlled delivery" of a package con taining marijuana by an undercover police detective to the defendant's workplace in West Hartford, the defendant was arrested. Gregory Palmquist, an officer with the West Hartford police department, transported the defendant to the West Hartford police barracks, where Palmquist processed the defendant. Prior to transferring the defendant from the booking area to the detective's office for interrogation, Paul Melanson, a detective with the West Hartford police department, orally advised the defendant of his Miranda rights. Melanson then brought the defendant to William Wallace, another detective with the West Hartford police department. Melanson informed Wallace that the defendant had been advised of the Miranda rights and that the defendant was willing to discuss the incident. During the interview with Wallace, the defendant made incriminating statements. After approximately twenty minutes, the defendant ceased talking and the interview was terminated. The defendant filed a motion to dismiss the charges on the ground that the police lacked probable cause to arrest him. During an evidentiary hearing on that motion, the defendant made an oral motion to suppress certain evidence consisting of his written confession and a Federal Express Corporation shipping receipt that was discovered on him in a search incident to his arrest. The court granted that motion to suppress, concluding that the police lacked probable cause to arrest the defendant. The suppression led to the dismissal of the charges. After the case was dismissed, the state immediately moved for permission to file an appeal pursuant to General Statutes § 54-96. The court refused to grant the state permission to appeal. The state appealed from the court's denial of permission. State v. James, 64 Conn. App. 495, 779 A.2d 1288 (2001), rev'd, 261 Conn. 395, 802 A.2d 820 (2002). This court rejected the state's claims and dismissed the appeal for lack of subject matter jurisdiction, noting that the trial court's grant of permission to appeal under § 54-96 is a jurisdictional prerequisite. Id., 501. The state thereafter appealed to our Supreme Court, which held that this court improperly dismissed the appeal because the trial court abused its discretion in denying the state permission to appeal. State v. James, 261 Conn. 395, 410, 802 A.2d 820 (2002). The Supreme Court further determined that "the trial court improperly concluded that, as a matter of law, there was no probable cause to arrest the defendant." Id. The case was remanded to this court "with direction to reverse the trial court's judgment of dismissal and to remand the case to the trial court with direction to deny the motion to suppress and for further proceedings according to law." Id., 420. On remand, the defendant filed a motion to suppress his statements to police officers on the ground that his Miranda waiver was invalid. After a hearing on the motion to suppress, the court denied the motion. The defendant thereafter entered a conditional plea of nolo contendere to criminal intent to possess a controlled substance with intent to sell and possession of a controlled substance with intent to sell. Pursuant to § 54-94a, the defendant's plea was entered on the condition that he have the right to pursue an appeal from the court's denial of the motion to suppress. On April 6, 2004, the court sentenced the defendant to a total effective term of three and one-half years incarceration. On April 14, 2004, the defendant filed his appeal from the court's decision denying the motion to suppress. Additional facts will be set forth as necessary. "As an initial matter, we set forth our standard of review. Our standard of review of atrial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ." (Internal quotation marks omitted.) State v. Hernandez, 87 Conn. App. 464, 469, 867 A.2d 30, cert. denied, 273 Conn. 920, 871 A.2d 1030 (2005). Under the clearly erroneous standard, "[w]e cannot retry the facts or pass on the credibility of the witnesses." (Internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn. App. 296, 306, 880 A.2d 889 (2005). "To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 50, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). "Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant's experience with the police and familiarity with the warnings . his level of intelligence, including his IQ . his age . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation." (Internal quotation marks omitted.) Id., 51. "Although the issue [of whether there has been a knowing and voluntary waiver] is . . . ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence." State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). The defendant claims that language, intellect and hearing impairments prevented him from executing a knowing and intelligent waiver of his Miranda rights. The transcript contradicts the defendant's claim. The record reveals that the defendant was approximately forty-one years old at the time of his arrest, advisement and statement. The defendant had no prior experience with police. Although he was bom in and remained a citizen of Jamaica, he lived in the United States for more than twenty years. The defendant was not under the influence of alcohol or narcotics at the time of his waiver. By all accounts, the defendant appeared to be in a calm emotional state. All four officers testified that they had extensive communication with the defendant in English, or obseived other officers communicating with the defendant, that the defendant had expressed no difficulty understanding English and that he had responded appropriately in English. The defendant had formal schooling in Jamaica to at least the seventh grade. That education was provided in English. The defendant was licensed to drive a motor vehicle in Connecticut. In Connecticut, the driver's license test requires that an applicant read questions and choose the appropriate response to written questions during the written exam. He also was employed at Har-Conn. Chrome Company (Har-Conn) in West Hartford for more than fifteen years and owned a beauty salon with his wife. The transcript reveals that the defendant testified at trial in English and that he responded to the questions of both counsel appropriately. The court noted that his hearing and ability to respond improved significantly as the hearing progressed. A supervisor at Har-Conn testified that the defendant, by all accounts, was able to comprehend and to communicate orally in English. While in custody, the defendant did not inform police officers that he suffered from a hearing impairment. The court also observed that the defendant did not request an interpreter or a hearing enhancement device during the suppression hearing. The court expressly found that he was not suffering from a hearing defect that could have affected his ability to understand his rights. The defendant testified that if the police asked him a question that he understood, he would answer the question. The defendant also testified that if police asked him a question that he did not understand, he would not respond. Melanson testified that he orally advised the defendant of the Miranda rights and asked the defendant if he understood those rights. According to Melanson, the defendant answered in the affirmative when asked if he understood the rights and desired to waive them to speak with police. "An express written or oral waiver is strong proof of the validity of the waiver." (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 52. Although a written waiver is a more reliable form of evidence, an oral waiver relates only to the credibility of the state's witnesses and does affect the validity of the waiver. See, e.g., State v. Whitaker, 215 Conn. 739, 756, 578 A.2d 1031 (1990); State v. Kuskowski, 200 Conn. 82, 86-88, 510 A.2d 172 (1986). After the defendant waived his rights and spoke with the police, he invoked his right to stop answering questions. Our Supreme Court has held that "the [invocation] of the right to remain silent after an initial willingness to speak with police is a strong indication that the defendant understood his rights." (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 52-53. The record reveals that there was substantial evidence to support the court's finding that the defendant knowingly, intelligently and voluntarily waived his rights. Additionally, after a thorough and careful review of the record, we are not left with a firm and definite conviction that the court mistakenly made such a finding. As such, we conclude that the court's finding was not clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-49 provides: "(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. "(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor's criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime. "(c) When the actor's conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." General Statutes § 21a-277 (b) provides: "Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned." On June 5, 1997, Federal Express Corporation (Federal Express) informed the West Hartford police that the company's drug-sniffing dogs had detected marijuana in two boxes addressed to Har-Conn. Chrome Company (Har-Conn) in West Hartford. With the Federal Express manager present, the West Hartford police officers unsealed the boxes at the Federal Express office in East Hartford and found a blue Igloo cooler in each box. The two large Igloo coolers contained approximately forty-eight pounds of marijuana between them. The presence of marijuana was confirmed by a test by police prior to delivery of the package to Har-Conn. The detectives removed much of the marijuana from one of the boxes and replaced it with sand and other weights before delivering the package to Har-Conn. According to Detective Paul Melanson of the West Hartford police department, that procedure is known as a "controlled delivery." The procedure consists of removing and replacing most of the contraband, and then delivering the altered package to its destination and checking to see who will accept it there. If the delivery circumstances so warrant, the police will then arrest the recipient. In this case, the defendant was the recipient, or the intended recipient, of the packages and was arrested on Har-Conn's premises, pursuant to the "controlled delivery" procedure of the police. General Statutes § 54-96 provides: "Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused." The defendant's motion on remand raises grounds different from those in his previous motions to suppress. We note that the record does not contain a memorandum of decision or signed transcript setting forth the trial court's reasons for its denial of the motion to suppress, as required by Practice Book § 64-1. When the record does not contain either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review. See, e.g., Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607-608, 710 A.2d 190 (1998). If there is an unsigned transcript on file in connection with an appeal, the claims of error raised by the defendant may be reviewed if this court determines that the transcript adequately reveals the basis of the trial court's decision. See Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 254 n.5, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003). Additionally, when we determine that any of the issues raised on appeal present purely questions of law warranting plenary review, the issues may be reviewed despite the absence of a memorandum of decision or signed transcript because the legal analysis undertaken by the trial court is not essential to this court's consideration of the issues on appeal. See, e.g., Norwalk v. Farrell, 80 Conn. App. 399, 406 n.10, 835 A.2d 117 (2003). Because we conclude that the transcript adequately reveals the basis of the court's decision, we will review the claims of error raised by the defendant.

Opinion PER CURIAM. The petitioner, Bruce Zoilo, appeals following the habeas court's denial of his petition for certification to appeal from the judgment dismissing his second amended petition for a writ of habeas corpus. We dismiss the appeal. On May 18, 1993, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), attempt to commit sexual assault in a spousal relationship in violation of General Statutes § 53a-49 and 53a-70b, and two counts of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b. Thereafter, he was sentenced to a total effective sentence of fifty years incarceration. The sentence was affirmed by the sentence review division of the Superior Court, and the petitioner's conviction was affirmed on direct appeal to this court. State v. Zollo, 36 Conn. App. 718, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). The petitioner filed a second amended petition for a writ of habeas corpus alleging, inter alia, ineffective assistance of counsel at trial because his counsel had failed (1) to investigate the case, (2) to cross-examine the state's witnesses adequately, (3) to conduct an adequate defense, (4) to challenge the admissibility of the state's DNA evidence and (5) to preserve for appeal issues regarding the DNA evidence. As part of his ineffective assistance of counsel claim, the petitioner also alleged that his trial counsel improperly represented him at his sentencing hearing and before the sentence review board after the petitioner had filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel. The habeas court held a hearing on the petition on September 23, 2003. At the hearing, the petitioner presented his own testimony as well as testimony from his trial counsel and Joseph Biondi, a detective with the West Haven police department. The respondent commissioner of correction cross-examined the petitioner's witnesses and recalled the petitioner's trial counsel. The court found Biondi and the petitioner's trial counsel to be credible witnesses and did not find the petitioner credible. On the basis of its review of the trial court proceedings during the petitioner's criminal trial and the evidence adduced at the hearing on the second amended petition for a writ of habeas corpus, the habeas court concluded that, rather than showing that the petitioner's trial counsel provided ineffective assistance, the evidence suggested that his counsel had done an excellent job of representing the petitioner. Additionally, the court concluded that the petitioner had presented no evidence that had his trial counsel provided ineffective assistance, he was prejudiced so as to leave in question the verdict that had been rendered. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court also concluded that the petitioner's claim that his attorney provided ineffective assistance of counsel at his sentencing and before the sentence review board was without merit. The crux of the petitioner's claim was that because he had filed a petition for a writ of habeas corpus in which he had alleged ineffective assistance of trial counsel, his counsel had a conflict of interest that prevented him from adequately representing the petitioner at sentencing and before the sentence review board. Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established. Mercer v. Commissioner of Correction, 51 Conn. App. 638, 643, 724 A.2d 1130, cert. denied, 248 Conn. 907, 731 A.2d 309 (1999). "Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. . In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance." (Internal quotation marks omitted.) Id. We stress, however, that to sustain his burden, the petitioner must establish that an actual conflict existed; the mere possibility of conflict is insufficient. Id., 645. In the present case, the habeas court concluded that the petitioner failed to meet his weighty burden. Far from proving that an actual conflict existed because of the petitioner's pro se petition for a writ of habeas corpus, which was not pursued, or that such a conflict adversely affected his counsel's performance, the court concluded that the record indicates that the petitioner's trial counsel "made a complete and adequate argument on behalf of his client." Our review of the record convinces us that the habeas court properly found that no actual conflict existed and that, therefore, the petitioner's counsel provided him with effective assistance. We have carefully reviewed the record and briefs and conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). The appeal is dismissed. The petitioner was found not guilty of a separate count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The petitioner also included a claim that the state had withheld exculpatory evidence from him, but he abandoned that claim prior to the habeas court's resolution of his petition.

Opinion GRUENDEL, J. The pro se defendant, Daniel Henderson, appeals from the trial court's denial of his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly rejected his claims that (1) the ten year sentence enhancement pursuant to General Statutes § BSaAOb was illegal as it was based on "uncounseled earlier charges," (2) the sentencing court had failed to articulate any reason for enhancing his sentence pursuant to § 53a-40b, (3) he was sentenced on the basis of inaccurate information, (4) the sentencing court should not have enhanced his sen tence by ten years pursuant to § 53a-40b because he could not be sentenced beyond the five year "relevant statutory maximum" for the forgery conviction, (5) the sentencing court should not have sentenced him in absentia, (6) § 53a-40b is unconstitutionally vague on its face and as applied to the particular facts of this case, (7) the reference to § 53a-40b in the information was legally insufficient because it did not include the elements of the statute in the language of the charge and (8) his sentence resulted from judicial vindictiveness. We affirm the judgment of the trial court. The following facts, as set forth by the trial court in its memorandum of decision, are relevant to the defendant's appeal. "[The defendant] was arrested on three related and relevant occasions in 1993. The first of these arrests occurred in February, and the second occurred two months later in April. The specific charges for the first two arrests are not pertinent to these proceedings and, hereinafter, are referred to as his 'earlier charges.' In August, 1993, while released on bond for these 'earlier charges,' [the defendant] was arrested for the third time, and charged with one count of forgery in the second degree in violation of General Statutes § 53a-139, and two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b . The facts underlying these convictions, at their essence, involved the use of a forged money order in the amount of $250 for the purchase of a $170 meal and $80 in change at a restaurant . "In the first part of the information in this case, [the defendant] was charged with the forgery and larceny offenses committed in August, 1993. In October, 1994, he was charged in a separate, second part information. In the second part of the information, he was charged with committing these crimes while released on bond, as well as with being a persistent larceny offender, for several of his many, previous larceny convictions. . . . "After a trial by jury where he was represented by counsel, [the defendant] was found guilty of the forgery and larceny charges against him contained in the first part of the information in this case. The day following his conviction on these charges, [the defendant] pleaded 'guilty' to the second part of the information, triggering the application of two sentence enhancement statutes: the first for being a persistent larceny offender under General Statutes § 53a-40 (e), and the second for committing these first part crimes of forgery and larceny while released on bond under . § 53a-40b. Upon accepting this plea agreement, and after a full and complete canvass by the [court, Kocay, J.], bond was set in the amount of $150,000, cash or surety. A presentence investigation . . . and report was ordered, and a sentencing hearing was scheduled for January 24, 1995, all of which was done in open court and in the presence of [the defendant], . . . "[The defendant] was released on bond after his conviction, but failed to appear for his sentencing by the court. At the sentencing hearing, his attorney represented to the court that she was in possession of a message from [the defendant], explaining his absence due to his recent admission to an in-patient drug treatment facility. The state alleged at the sentencing hearing that (1) [the defendant] failed to appear at three previously scheduled sentencing hearings, all involving one Danbuiy case, (2) he failed to appear for his [presen-tence investigation] interview and (3) he failed to appear recently for another case in Meriden. All of these failures to appear were alleged by the state to have occurred within the previous three weeks. "Upon a finding that his absence from court was 'voluntary,' the trial court sentenced [the defendant], in absentia, to a total effective sentence of fifteen years to serve in the custody of the commissioner of correction. The particular elements of the sentence were as follows: five years of incarceration on the charge of forgery in the second degree, and three months for one charge of larceny in the sixth degree, concurrently imposed. This sentence of five years was then 'enhanced' by the court for an additional ten years for [the defendant's] having committed the felony of forgery [in the second degree] while released on bond for the 'earlier charges.' " Following sentencing, the defendant appealed from his conviction unsuccessfully. He also filed a petition for sentence review, which was denied, and two petitions for a writ of habeas corpus, alleging ineffective assistance of counsel. Both petitions were dismissed. On October 21, 2002, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. Characterizing the defendant's motion as one to modify a sentence, the court denied it on the ground that the court lacked jurisdiction to modify the defendant's sentence because the sentence exceeded the three year maximum sentence that the court is allowed to modify under General Statutes § 53a-39. On appeal, we reversed the judgment in part, concluding that the court had improperly characterized the defendant's motion as one to modify a sentence, and remanded the case for a hearing on the defendant's motion to correct an illegal sentence. State v. Henderson, 82 Conn. App. 473, 475, 844 A.2d 922 (2004). Shortly thereafter, the defendant filed another motion to correct an illegal sentence. After hearing argument, the court denied the defendant's motion and his subsequent motion for reargument. The defendant now appeals from the court's denial of his motion to correct an illegal sentence. "We review claims that the court improperly denied the defendant's motion to correct an illegal sentence under an abuse of discretion standard. . . . The juris diction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act." (Citation omitted; internal quotation marks omitted.) States v. Pagan, 75 Conn. App. 423, 429, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). The trial court has been provided with express authority to retain jurisdiction after a defendant's sentence has begun and may take action as to the sentence by way of Practice Book § 43-22. Cobham v. Commissioner of Correction, 258 Conn. 30, 37-38, 779 A.2d 80 (2001). Under that section, "[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." Practice Book § 43-22. "An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." (Internal quotation marks omitted.) State v. Pagan, supra, 429. A sentence imposed in an illegal manner is one "within the relevant statutory limits but . . . imposed in a way which violates [a] defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . ." (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). I The defendant argues that the court improperly rejected his claim that the ten year sentence enhancement pursuant to § 53a-40b was illegal, as it was based on "uncounseled earlier charges . . . ." We decline to review the defendant's claim. In his motion to correct an illegal sentence, the defendant offered the following reason, among many others, for the court to conclude that the sentence was illegal: "Since [he] was indigent when the trial [c]ourt 'denied' appointment of counsel to defend against said [earlier] charges, and the same [earlier] charges were subsequently used to enhance his sentence, [that] makes [the defendant's] enhancement 'illegal.' " The court, in its memorandum of decision, addressed what it perceived to be the defendant's facial attack on § 53a-40b "for authorizing an unconstitutional enhancement of his sentence, based upon his statutory bond-release status, and thereby infringing upon his simultaneous, constitutional status of innocence." It concluded that "[s]uch challenges are not within the scope of [the] court's expressly authorized jurisdiction for a motion to vacate an illegal sentence." In his brief to this court, the defendant argues essentially that the court misinterpreted his claim. His claim, he argues, was not a facial attack on § 53a-40b, but rather was "a challenge to the sentencing court's jurisdiction to enhance [the defendant's] sentence based upon said 'uncounseled earlier charges' "It is well established that [i]t is the appellant's burden to provide an adequate record for review. . It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . to clarify the legal basis of a ruling . or to ask the trial judge to rule on an overlooked matter." (Internal quotation marks omitted.) Champagne v. Champagne, 85 Conn. App. 872, 879, 859 A.2d 942 (2004). Here, in its memorandum of decision, the court did not specifically address the defendant's claim that the ten year sentence enhancement pursuant to § 53a-40 was illegal because it was based on "uncounseled earlier charges . . . .''If the defendant believed that the court had overlooked that claim, then he could have filed a motion for articulation pursuant to Practice Book § 66-5. Because the defendant did not file such a motion, we lack the necessary factual and legal conclusions furnished by the trial court and therefore any decision made by us respecting the defendant's claim would be completely speculative. See State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999); see also Celentano v. Oaks Condominium Assn., 265 Conn. 579, 589 n.9, 830 A.2d 164 (2003) (claims neither addressed nor decided by trial court not properly before appellate tribunal). Accordingly, we decline to review the defendant's claim. II The defendant argues that the court improperly rejected his claim that the sentencing court failed to articulate any reason for enhancing his sentence pursuant to § 53a-40b. We conclude that the court lacked jurisdiction to consider that claim. In his motion to correct an illegal sentence, the defendant claimed that "[b]ecause the sentencing court failed to articulate any reasons for enhancing [the defendant's] sentence 200 [percent] above the statutory maximum, [the defendant] deems said enhancement 'illegal' . . . ." Addressing the issue of its jurisdiction to consider the defendant's claim, the court concluded that the "jurisdictional authorizations concerning a defendant's right to 'be addressed personally,' 'to speak in mitigation of punishment' and to be 'sentenced by a judge relying upon accurate information,' all suggest that an articulation of a sentence may be the subject of review on a motion to correct an illegal sentence." As previously stated, "[t]he jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act." (Internal quotation marks omitted.) State v. Pagan, supra, 75 Conn. App. 429. The trial court has been provided with express authority to retain jurisdiction after a defendant's sentence has begun and may take action as to the sentence by way of Practice Book § 43-22; Cobham v. Commissioner of Correction, supra, 258 Conn. 37-38; which provides in relevant part that "[t]he judicial authority may at any time . . . correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." Practice Book § 43-22. A sentence imposed in an illegal manner has been defined as being within the relevant statutory limits, but imposed in a manner that violates a defendant's right (1) to be addressed personally at sentencing and to speak in mitigation of punishment, (2) to be sentenced by a judge relying on accurate information or considerations solely in the record or (3) to have the government keep its plea agreement promises. State v. McNellis, supra, 15 Conn. App. 444. Here, the court interpreted that definition to mean that a court's failure to articulate the reasons for the imposition of a sentence "may be the subject of review on a motion to correct an illegal sentence." Because such a failure is not expressly listed in that definition, and because a court may not take any action affecting a sentence unless it has been expressly authorized to act; State v. Pagan, supra, 429; we conclude that the court lacked jurisdiction to consider the defendant's claim. Ill The defendant argues that the court improperly rejected his claim that he was sentenced on the basis of inaccurate information. We disagree. Following his conviction of larceny and forgery, the defendant admitted to committing the crimes while he was released on bond pending the "earlier charges," making him eligible for an enhanced sentence under § 53a-40b. The court ordered a presentence investigation report and then continued the case until January 24,1995, for sentencing. Despite the defendant's failure to appear for his presentence investigation interview, the office of adult probation prepared a presentence investigation report, attached to which was another presentence investigation report, dated July 12, 1994, that was used for the defendant's prior sentencing proceedings. The updated presentence investigation report listed approximately fifty charges and thirty convictions, but failed to mention the "earlier charges" for which the defendant was released on bond when he committed the forgery and larceny offenses in this case. Before the trial court, the defendant claimed that he was sentenced on the basis of inaccurate information because "the updated [presentence investigation report] failed to accurately inform the court of the nature or disposition of the 'earlier charges' and, in particular, that he had not been convicted of those offenses." The court disagreed: "In this case, accurate information regarding the [earlier] charges was before the court through the second part of the information, and [the defendant] admitted the facts attendant to that information when he pleaded guilty and was canvassed by the [sentencing] court. In addition, whether he was convicted of these 'earlier charges' is irrelevant to the application of the terms of the enhancement statute [§ 53a-40b]. The relevant factual question is whether [the defendant] was released on bond when he committed the forgery and larceny offenses in this case. The record reflects this fact, and [the defendant] admitted this fact in his guilty plea. Therefore, the court finds that [the defendant's] claim of flawed and inaccurate information [is] unavailing." We agree with the trial court that the defendant was not sentenced on the basis of inaccurate information. Even though the updated presentence investigation report failed to mention the "earlier charges," the court was informed of the charges by way of the second part of the information and the defendant's guilty plea in connection with that information. That the court did not obtain the information regarding the "earlier charges" from the presentence investigation report is irrelevant. "The primary value of a [presentence investigation report] stems from the information contained therein, not from the report itself. Most of this information can be brought to the trial court's attention by either party by means other than a {presentence investigation report]." (Emphasis added.) State v. Patterson, 236 Conn. 561, 574-75, 674 A.2d 416 (1996). Moreover, that the court was not informed of the ultimate disposition of the "earlier charges" also is irrelevant. "[T]he text of § 53a-40b . . . does not refer expressly to a prior conviction as a predicate act that triggers an enhanced penalty. It focuses, instead, on the status of the defendant [as a person released on bond] at the time when the defendant committed a second crime." State v. Sanko, 62 Conn. App. 34, 43, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001). Accordingly, we reject the defendant's claim. IV The defendant claims that the court improperly rejected his claim that the sentencing court should not have enhanced his sentence by ten years pursuant to § 53a-40b because he could not be sentenced beyond the five year "relevant statutory maximum" for the forgery conviction. The defendant did not raise that claim in his motion to correct an illegal sentence, and the court, therefore, did not address it. "[B]ecause [appellate] review is limited to matters in the record, we will not address issues not decided by the trial court." Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998). Accordingly, we decline to review the defendant's claim. V The defendant argues that the court improperly rejected his claim that the sentencing court should not have sentenced him in absentia. We disagree. Practice Book § 44-8 provides in relevant part that "[t]he defendant must be present at the trial and at the sentencing hearing, but, if the defendant will be represented by counsel at the trial or sentencing hearing, the judicial authority may . . . [d]irect that the trial or a part thereof or the sentencing hearing be conducted in the defendant's absence if the judicial authority determines that the defendant waived the right to be present . . . In its memorandum of decision, the court noted the following: "[The defendant] was released on bond after his conviction, but failed to appear for his sentencing by the court. At the sentencing hearing, his attorney represented to the court that she was in possession of a message from [the defendant], explaining his absence due to his recent admission to an in-patient drug treatment facility. The state alleged at the sentencing hearing that (1) [the defendant] failed to appear at three previously scheduled sentencing hearings, all involving one Danbury case, (2) he failed to appear for his [presen-tence investigation] interview and (3) he failed to appear recently for another case in Meriden. . . . Upon a finding that his absence from court was 'voluntary,' the trial court sentenced [the defendant], in absentia, to a total effective sentence of fifteen years to serve in the custody of the commissioner of correction." On the basis of those facts, the court concluded that, "although [the defendant] was afforded the right to be addressed personally at sentencing and to speak in mitigation of his punishment, he waived these rights by his voluntary failure to appear at his sentencing hearing." We find absolutely nothing in the record to suggest that the court abused its discretion in concluding that the defendant had waived those rights. Accordingly, we reject the defendant's claim. VI The defendant argues that the court improperly rejected his claim that § 53a-40b is unconstitutionally vague on its face and as applied to the particular facts of his case. The court concluded, and we agree, that it lacked jurisdiction to consider that claim. As already discussed, the trial court has been provided with express authority to retain jurisdiction after a defen dant's sentence has begun and may take action as to the sentence by way of Practice Book § 43-22; Cobham v. Commissioner of Correction, supra, 258 Conn. 37-38; which provides in relevant part that "[t]he judicial authority may at any time correct an illegal sentence . . . ." Practice Book § 43-22. "An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory." (Internal quotation marks omitted.) State v. Pagan, supra, 75 Conn. App. 429. As correctly noted by the court, "[t]o the extent that [the defendant] attacks § 53a-40 on its face, he challenges the constitutionality of the legislative enactment itself and not the action of the trial court in applying the proper law in the proper manner. . . . Such challenges are not within the scope of [the] court's expressly authorized jurisdiction for a motion to vacate an illegal sentence." Accordingly, we conclude that the court lacked jurisdiction to consider the defendant's claim. VII The defendant argues that the court improperly rejected his claim that the reference to § 53a-40b in the second part of the information was legally insufficient because it did not include the elements of the statute in the language of the charge. Because that claim challenges neither the legality of his sentence nor the legality of the manner in which the court imposed his sentence, we conclude that the court lacked jurisdiction to consider it. VIII The defendant claims that the court improperly rejected his claim that his sentence resulted from judicial vindictiveness. In support of his claim, the defendant points to a single comment made by Judge Kocay to the defendant's counsel after the defendant had pleaded guilty to the second part of the information: "If there weren't pleas here, the bond would be three times what I told you." On the basis of that comment, the defendant concludes that "the record unequivocally reflects the sentencing court's vindictiveness . . . ." We disagree. According to the court, there was nothing in the record to suggest "vindictiveness by the judge at the sentencing hearing." Rather, the court stated that "the record reflects that the court was presented with allegations showing that [the defendant] was a growing threat to society and that he was a persistent offender, even while out on bond and while on trial. The state indicated that [the defendant] had an 'unbroken line of criminal behavior from 1980 until the present . . . and criminal conduct similar to that committed in this case.' " On the basis of our review of the record, we are persuaded that the defendant's claim is utterly meritless. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-40b provides: "A person convicted of an offense committed while released pursuant to sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, other than a violation of section 53a-222, may be sentenced, in addition to the sentence prescribed lor the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor." In State v. Francis, 69 Conn. App. 378, 793 A.2d 1224, cert. denied, 260 Conn. 935, 802 A.2d 88, cert. denied, 537 U.S. 1056, 123 S. Ct. 630, 154 L. Ed. 2d 536 (2002), "the panel held that the trial court lacked jurisdiction to consider the defendant's claim under Practice Book § 43-22 where the motion to correct the illegal sentence did not attack the validity of the sentence as exceeding the maximum statutory limits, did not violate a mandatory minimum sentence, did not violate double jeopardy rights and was neither ambiguous nor internally contradictory. Id., 384. The holding in Francis is not consistent with State v. McNellis, supra, 15 Conn. App. 444. McNellis has not been overruled by an en banc panel of this court or by our Supreme Court." State v. Pagan, supra, 75 Conn. App. 430 n.9. After concluding that it did indeed possess jurisdiction to address that claim, the court rejected it, noting that the sentencing court had stated its reasons for ordering that the defendant be held without bond and that "[sjince this statement immediately followed] the sentencing, it can reasonably be assumed to reflect the court's reason for imposing the maximum enhancement penalty permitted by law, in addition to denying bond." According to the defendant, it was improper for the court to conclude that the sentencing court's justification for ordering that he be held without bond also constituted its justification for imposing the sentence enhancement. As the court noted in its memorandum of decision, "[i]n addition to the sentence of fifteen years imposed in this case, [the defendant] had previously been sentenced by the same trial judge to three years on charges of criminal mischief [in the first degree] and reckless endangerment [in the second degree]."

Opinion SCHALTER, J. The petitioner, Anthony Bowden, appeals following the denial by the habeas court of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) determined that he had received the effective assistance of counsel and (2) concluded that he was not entitled to credit for time served in prison. We dismiss the petitioner's appeal. The following facts and procedural history are relevant to our discussion. The petitioner was charged with various criminal offenses under docket numbers CR96-0434939 and CR96-0435923. Attorney Thomas Conroy represented the petitioner and successfully negotiated a plea agreement with the state. The petitioner pleaded guilty to two counts of larceny in the second degree. The state agreed to enter a nolle prosequi on the remaining charges. As a result of his plea agreement, the petitioner was to be sentenced to a period of eleven years incarceration. The petitioner's plea canvass was completed on February 4, 1998. During the petitioner's sentencing, the court incorrectly informed him that the maximum sentence he could receive was thirty years imprisonment. The petitioner attempted to withdraw his pleas, and the court held a hearing on April 3, 1998. At the conclusion of that hearing, the court denied the petitioner's motion to withdraw his pleas and sentenced him to eleven years of incarceration. After the petitioner appealed, we reversed the judgments of the trial court and remanded the case with direction to grant the motion to withdraw the guilty pleas. See State v. Bowden, 53 Conn. App. 243, 729 A.2d 795 (1999). Following our remand, attorney Michael Moscowitz was appointed as a special public defender to represent the petitioner. The state filed substitute informations charging the petitioner with three counts of robbery in the third degree and three counts of larceny in the second degree. The petitioner also was charged as a persistent serious felony offender in violation of General Statutes § 53a-40. On the day that jury selection was to commence, the petitioner informed Moscowitz that he wanted to enter a plea in order to avoid going to trial and facing a lengthy prison sentence. At that point, the state was unwilling to place a limit on the sentence imposed, to make a recommendation as to the length of the sentence or to nolle any of the charges. On April 25, 2000, the petitioner, pursuant to the Alford doctrine, pleaded guilty to all of the counts and admitted to being a persistent serious felony offender. The court thoroughly canvassed the petitioner and determined that his pleas were made knowingly and voluntarily with the assistance of effective counsel. The court found the petitioner guilty and, on July 28, 2000, imposed a prison sentence of eleven years. On June 17, 2003, through his habeas counsel, the petitioner filed a second amended petition for a writ of habeas coipus. His single count complaint alleged that Moscowitz had been ineffective in assisting the petitioner following the remand from this court. Specifically, the petitioner claimed that Moscowitz had failed (1) to advise him of various potential defenses, (2) to conduct an adequate investigation, (3) to present exculpatory testimony, (4) to advise him of the plea agreement prior to sentencing and (5) to inform the sentencing court that he had agreed to a total effective sentence of five and one-half years, and not eleven years. In his prayer for relief, but not in a separate count, the petitioner requested that his convictions be vacated, and that he be returned to the trial court for further proceedings and that he "be released from custody and/or [that] his sentence [be modified to reflect] correct jail [time] credit . . . ." A trial was held on March 24, 2004, during which the petitioner and Moscowitz testified. In a memorandum of decision filed on March 25, 2004, the court found that the petitioner had failed to meet his burden of proof and denied the petition. The decision focused on the claim of ineffective assistance of counsel and did not address the jail time credit issue that was mentioned in the prayer for relief. The court also denied the petition for certification to appeal from the denial of the petition for a writ of habeas corpus. This appeal followed. Additional facts will be set forth as necessary. As a preliminary matter, we identify the relevant legal principles and the applicable standard of review that guide our resolution of the petitioner's appeal. "In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . . "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different. White v. Commissioner of Correction, [58 Conn. App. 169, 170, 752 A.2d 1159 (2000)], citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . . . ." (Internal quotation marks omitted.) Faust v. Commissioner of Correction, 85 Conn. App. 719, 721-22, 858 A.2d 853, cert. denied, 272 Conn. 909, 863 A.2d 701 (2004). In the present case, the petitioner chose to plead guilty to the charged offenses, thereby forgoing a trial. "For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland's prejudice prong. . . . "To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. . A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. . A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time. . . . "To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. . A reviewing court can find against a petitioner on either ground, whichever is easier." (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 90 Conn. App. 431, 434-35, 876 A.2d 1281 (2005). With the foregoing principles in mind, we now turn to the specifics of the petitioner's appeal. I The petitioner first claims that the court improperly determined that he had received the effective assistance of counsel. Specifically, he argues that the court improperly (1) found that Moscowitz was adequately prepared to represent the petitioner at trial, (2) found that Mos-cowitz had advised the petitioner regarding the terms of the plea and (3) concluded that the petitioner was not prejudiced by Moscowitz' allegedly deficient performance. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that those issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. In the present case, the court expressly found that there was "nothing attributable to attorney Moscowitz that undermines the reliability of the conviction." Moscowitz testified that he was prepared to go to trial, and had discussed the weaknesses of the state's case with the petitioner. Various pretrial motions had been filed, and the police reports had been reviewed. Furthermore, after the petitioner elected to plead guilty, Moscowitz specifically informed him that it would be an open plea and that the sentence would be determined by the corut. The petitioner, however, wanted to plead guilty to avoid being sentenced by Judge Fracasse, whom the petitioner feared would impose a heavy sentence. Of course, "[t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of the witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Thompson v. Commissioner of Correction, 91 Conn. App. 205, 219, 880 A.2d 965, cert. granted on other grounds, 276 Conn. 921, 888 A.2d 89 (2005). The court further explained that the petitioner's claim that he thought he would receive a five and one-half year sentence was not credible and that it was due to the competence of Moscowitz that the petitioner was able to receive the eleven year sentence rather than a longer term of incarceration. The record supports the court's statement that "the petitioner voluntarily entered into [the] plea bargain and was ably represented by [Moscowitz] who did a superb job in attempting to resolve all of the petitioner's legal difficulties." The court, therefore, did not abuse its discretion in denying certification to appeal from the denial of the petition for a writ of habeas corpus. II The petitioner next claims that the court improperly concluded that he was not entitled to credit for time served in prison. Because the record is inadequate to permit appellate review, we decline to reach the merits of his claim. At the outset, we note that it is not entirely clear whether that issue was before the court properly. The operative pleading, the second amended petition filed on June 17, 2003, consists of a single count. Although that count contains several allegations pertaining to an ineffective assistance of counsel claim, it fails to mention the issue of jail time credit. We note that Practice Book § 10-26 provides: "Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one." (Emphasis in original.) The operative petition in the present case fails to comply with that requirement. In his prayer for relief, however, the petitioner requested, inter alia, that he "be released from custody and/or [that] his sentence [be modified to reflect] correct jail [time] credit . . . ." (Emphasis added.) Furthermore, during Moscowitz' testimony, the jail time credit issue was raised and discussed briefly. There was, therefore, some scant evidence pertaining to the jail time issue. We are mindful that our jurisprudence requires that we interpret pleadings broadly. See Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005). We conclude that the jail time credit issue was, at least marginally, before the court. It is clear that the memorandum of decision does not mention the jail time credit issue. It is also undisputed that the petitioner failed to request an articulation. See Practice Book § 66-5. Because the court's memorandum of decision is devoid of any findings or analysis on the issue, and because the petitioner did not seek an articulation, the record is inadequate and we cannot review his claim. See King v. Commissioner of Correction, 73 Conn. App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003); see also Carey v. Commissioner of Correction, 86 Conn. App. 180, 185 n.6, 860 A.2d 776 (2004), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005). Similarly, in Adorno v. Commissioner of Correction, 66 Conn. App. 179, 188 n.3, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001), we stated that "[t]he habeas court, however, did not discuss in detail those claims, some of which were not even mentioned in the petition for habeas corpus. In addition, the petitioner failed to file a motion for articulation. It is the appellant's burden to provide an adequate record for review. Practice Book [§ 60-5] . . It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . to clarify the legal basis of a ruling . or to ask the trial judge to rule on an overlooked matter." (Emphasis added; internal quotation marks omitted.) In the present case, the petitioner has failed to seek an articulation, resulting in an inadequate record, thus preventing appellate review of the merits of his claim. The appeal is dismissed. In this opinion the other judges concurred. Under that docket number, the petitioner was charged with two counts of robbery in the third degree in violation of General Statutes § 53a-136 (a), two counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), assault in the second degree of a victim sixty or older in violation of General Statutes § 53a-60b (a), assault in the third degree of a victim sixty or older in violation of General Statutes § 53a-61a (a) and larceny in the fourth degree in violation of General Statutes § 53a-125. Under that docket number, the petitioner was charged with robbery in the third degree in violation of General Statutes § 53a-136 (a), larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), assault in the second degree of a victim sixty or older in violation of General Statutes § 53a-60b (a) and larceny in the fourth degree in violation of General Statutes § 53a-125. Specifically, the petitioner claimed, as the basis for his motion to withdraw his pleas, that Conroy had been ineffective. See Practice Book § 39-27 (4). See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The initial petition was filed on January 15, 2002. We note that the habeas court did not specifically address the jail time credit issue in its memorandum of decision. A judgment that disposes of only a portion of a complaint is not a final judgment. See Russell v. Russell, 91 Conn. App. 619, 628 n.8, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). "[W]e are mindful that [t]he lack of [a] final judgment. . . implicates the subject matter jurisdiction of this court." (Internal quotation marks omitted.) Matey v. Estate of Dember, 85 Conn. App. 198, 203, 856 A.2d 511 (2004). We are satisfied, however, that in the present case, a final judgment exists and that we have subject matter jurisdiction over the present appeal. First, the court stated in its memorandum of decision that it denied the petition. In denying the petition, the court found in favor of the respondent commissioner of correction with respect to all of the issues raised. Second, the judgment file states that "[t]he court having heard the parties, finds the issues for the respondent" and that "it is adjudged that the petition for [a] writ of habeas corpus is denied." Cognizant that every presumption favoring jurisdiction should be indulged; Raudal v. Leary, 88 Conn. App. 44, 48, 868 A.2d 120 (2005); we conclude that the habeas court denied the entire petition. See id., 49. As such, a final judgment exists. At oral argument before this court, in view of the lack of an adequate record to address the petitioner's claim regarding jail time credit, the panel inquired of counsel for the respondent commissioner of correction what remedy the petitioner may have. Counsel, in response to our inquiry, indicated that the petitioner, in order to obtain judicial review of the jail time credit issue, may have the remedy of filing an ineffective assistance of counsel claim against the attorney who failed to move for an articulation of the habeas court's decision.

Opinion SCHALLER, J. The petitioner, Benjamin Reid, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that the condition of his parole that his release not be "incompatible with the welfare of society" was not void for vagueness and therefore constitutional. We affirm the judgment of the habeas court. The following facts and procedural history are germane to our discussion. In 1957, the petitioner was convicted of murder and sentenced to death. His death sentence was commuted to life in prison and, in 1985, the petitioner was released on parole. On November 19,1985, the petitioner signed a document that set forth the conditions of his parole. Paragraph eleven of the document stated: "Your release on parole is based upon the conclusion of the Parole Panel that there is a reasonable probability that you will live and remain at liberty without violating the law and that your release is not incompatible with the welfare of society. In the event that you engage in conduct in the future which renders this conclusion no longer valid, then your parole will be revoked or modified accordingly." The terms of the petitioner's parole permitted him to reside in the commonwealth of Massachusetts. He complied with the conditions of his parole for several years. In April, 1996, the petitioner was introduced to Karen Bryant, an ordained elder in the United Methodist Church and the pastor of the Church of All Nations in Boston, Massachusetts. The petitioner attended a counseling session with Bryant. Her initial impressions were that the petitioner was a "very sweet, gentle, humble, scared, vulnerable, confused human being who needed help." The petitioner, however, had not revealed to Bryant the extent of his criminal history. At the end of the session, Bryant invited the petitioner to attend her church and to participate in various activities, such as group sessions and prayer meetings. The petitioner falsely informed Bryant that soon he would be a "free man . . . ." He claimed to be terrified by the thought of living without the oversight of his parole conditions. At that point, the petitioner had been living in a homeless shelter, and asked Bryant to hold $600 that he had received so that it would not be stolen. Bryant agreed to that request and, because several thefts had occurred at the church, placed the petitioner's money in her personal bank account. Bryant then noticed a change in the petitioner. He began to form an "obsessive" attachment to her. For example, the petitioner would stop by the church on a daily basis to see her and tell her that "God sent [her] to be [his]." He presented her with gifts of flowers and perfume. Finally, although it was common behavior for the individuals in the church to hug one another, the petitioner intensified his physical contact with Bryant and would touch her "waist and down below . . . ." Bryant indicated to the petitioner that this type of physical contact was inappropriate and not acceptable. The petitioner's unwarranted touching reached its apex during the week of May 13, 1996, during an incident in Bryant's office. As the two began to hug, the petitioner placed his hands on Bryant's buttocks and thrust his pelvis into her, so as to simulate sexual intercourse. Bryant immediately separated from the petitioner and told him that he had to leave. The petitioner smiled strangely and stated, "That's all right babe, I will wait for you to know." The petitioner displayed hostility toward Bryant following her return from a three day conference in Maine. Biyant noticed the change in the petitioner following her business trip. She described him as "deadly cold." The petitioner made statements to Bryant that caused her to be concerned for her safety. Specifically, he stated: "You fucking bitch, your ass is grass, I see how it is. I promise I'm going to bring you down. You are history." He expanded on that by telling her that he was "going to bring [her] down by the end of the week" and promised her that she was going to suffer. Bryant informed the petitioner that he was threatening her life and causing her to be frightened. She told him that if he did not cease such conduct, she would be forced to inform the police department. She reminded the petitioner of the likely effect that would have on his status as a parolee. The petitioner responded: "You go right ahead and call the police and put me in prison. I do not care what happens to me. I am not happy in prison or out of prison. I just want one thing. I want to see you suffer. You put me in prison, I will drag you into court, I will put your name in the newspapers. I promise you, you bitch, one way or the other, I'm going to bring you down." Those statements, along with the look on the petitioner's face, caused Bryant great distress. The petitioner made a similarly threatening telephone call to Bryant's residence. On May 28, 1996, Bryant and the building manager of the church, Samuel Barrows, waited in her office so that she could return the balance of the petitioner's money to him. After she gave him the money, the petitioner stated: "Now, I am going to do what I have to do . . . ." After the petitioner left, Barrows cautioned Bryant that the petitioner's "face of hate meant business" and that she should contact the police. Bryant notified the police and obtained a restraining order against the petitioner. Criminal charges also were filed against the petitioner, alleging that he had sexually assaulted Bryant. As a result of those charges, a warrant was issued for his arrest. A parole violation report was completed on June 5, 1996. It alleged that the petitioner violated his parole on the basis of his conduct on May 28, 1996, that led the Suffolk Superior Court to issue a restraining order for threats made to Bryant. The board of parole (board) issued a notice of parole violation to the petitioner that indicated that he had violated paragraph eleven of the conditions of his parole. Specifically, the notice stated: "By virtue of your actions on or about [May 28, 1996] with respect to the following: Boston, Mass. Police Incident Report, Restraining Order issued by Suffolk Superior Court for threats on a life, and details found within said documents as well as the victim's statement, you are in violation of the above Parole condition." A hearing was held before the board on January 7, 1997. At the conclusion of that hearing, the board revoked the petitioner's parole. In a letter dated Janu ary 8, 1997, the board notified the petitioner of the reasons for the revocation. In the letter, the board specifically credited Bryant's testimony and explained that it had found that the petitioner's testimony lacked credibility. The board indicated that through Bryant's testimony, it was established that the petitioner had made unwanted sexual advances and contact with Bryant and had threatened her, resulting in the issuance of a restraining order by the Massachusetts court. The board ultimately found that the prior determination that his release on parole would not be incompatible with the welfare of society was therefore no longer valid. On December 27, 2001, the petitioner filed a four count petition for awritofhabeas corpus. On November 19, 2003, the court issued its memorandum of decision denying the petition. The court, inter alia, rejected the petitioner's claim that the phrase "incompatible with the welfare of society" was unconstitutionally vague. On December 5, 2003, the court granted the petition for certification to appeal. Additional facts will be set forth as necessary. On appeal, the sole issue raised by the petitioner is that the condition of his parole that his release not be "incompatible with the welfare of society" is unconstitutionally vague. Before we can reach the merits of his claim, however, we must first determine whether that condition is subject to a facial challenge or limited to consideration on the basis of the facts presented. We conclude that because the challenged condition does not substantially implicate the petitioner's first amendment rights, our review is limited to an as applied vagueness challenge. At the outset, we set forth certain legal principles that guide our resolution of the petitioner's appeal. "[I]n passing upon the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity . The party challenging a statute's constitutionality has a heavy burden of proof; the unconstitutionality must be proven beyond all reasonable doubt." (Internal quotation marks omitted.) Rudy's Limousine Service, Inc. v. Dept. of Tranportation, 78 Conn. App. 80, 89, 826 A.2d 1161 (2003); see also Hammond v. Commissioner of Correction, 259 Conn. 855, 876, 792 A.2d 774 (2002). Accordingly, "[t]he court will indulge in every presumption in favor of the statute's constitutionality [and] [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Citation omitted; internal quota tion marks omitted.) State v. Long, 268 Conn. 508, 521, 847 A.2d 862, cert. denied, 543 U.S 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004). The petitioner has raised a constitutional vagueness challenge. Our Supreme Court has stated that "[t]he void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [mjany statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties." (Citations omitted; internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 158-59, 778 A.2d 955 (2001). We are also mindful of the petitioner's status as a parolee. "We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." (Internal quotation marks omitted.) Liistro v. Robinson, 170 Conn. 116, 126, 365 A.2d 109 (1976); see also Parham v. Warden, 172 Conn. 126, 132, 374 A.2d 137 (1976). Furthermore, "parolees do not enjoy absolute liberty under the United States constitution, but only conditional liberty, dependent on their compliance with the conditions of their release." State v. Whitfield, 26 Conn. App. 103, 108, 599 A.2d 21 (1991). Nevertheless, in the seminal case of Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the United States Supreme Court held that an individual released subject to parole conditions nevertheless has obtained a liberty interest protected by the fourteenth amendment. See also Asherman v. Meachum, 213 Conn. 38, 47, 566 A.2d 663 (1989). As we have noted, "Mor-rissey . . . makes it clear that the benefits that inure as a result of that liberty interest cannot be taken away without the parolee's being informed of the alleged parole violation and being given a hearing at which he can rebut the allegations." Vincenzo v. Chairman, Board of Parole, 64 Conn. App. 258, 262, 779 A.2d 843 (2001). It is undisputed that the petitioner possessed a liberty interest in his status as a parolee protected by the fourteenth Amendment. The petitioner, however, contends that the action of the board in revoking his liberty on the basis of his statement to Bryant implicated his first amendment rights as well. Accordingly, the petitioner argues that we should review the condition that his release not be incompatible with the welfare of society for vagueness on its face. We do not agree. "The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue. . To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]." (Citations omitted; internal quotation marks omitted.) Packer v. Board of Education, 246 Conn. 89, 105-106, 717 A.2d 117 (1998); see also State v. Payne, 240 Conn. 766, 777, 695 A.2d 525 (1997), overruled on other grounds, State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004); State v. Bloom, 86 Conn. App. 463, 467-68, 861 A.2d 568 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1081 (2005). Our Supreme Court has recognized an exception to that general rule. "In the cases where such first amendment guarantees as free speech and assembly are at issue, an indefinite statute may impermissibly inhibit the exercise of those freedoms. Those . . . sensitive to the perils posed by . . . indefinite language, avoid the risk . . . only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited. . . . Due to this chilling effect which vague statutes can exert on first amendment liberties, when those freedoms are at stake, the statute's constitutionality is tested for vagueness on its face. . . . Thus, in a first amendment context, a [petitioner] may challenge the validity of a statute's application to marginal situations even though his own conduct may clearly fall within the statute's proscriptions." (Citations omitted; internal quotation marks omitted.) State v. Pickering, 180 Conn. 54, 57 n.3, 428 A.2d 322 (1980); see also State v. Ehlers, 252 Conn. 579, 584-85, 750 A.2d 1079 (2000). Put another way, "[w]hen a penal statute implicates rights protected by the first amendment, the statute's meaning must be capable of precise ascertainment in order to repel a vagueness challenge because [w]here first amendment rights are at stake, vague laws may cause citizens to avoid constitutionally protected conduct for fear of incurring criminal prosecution." (Internal quotation marks omitted.) State v. Charles, 78 Conn. App. 125, 135, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003). The question before us, therefore, is whether the challenged parole condition implicated his first amendment rights. If so, then we must determine whether the condition passes a facial challenge to its constitutionality. If, however, there are no first amendment concerns, then we limit our review to the facts of the present case. We turn to our Supreme Court's opinion in State v. DeLoreto, 265 Conn. 145, 827 A.2d 671 (2003), for guidance in resolving that question. In DeLoreto, the defendant was involved in two separate confrontations with members of the Wethersfield police department. Id., 148-50. He was charged with two counts of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1), (3) and (5). State v. DeLoreto, supra, 150. Following his conviction on both counts, he appealed and claimed, inter alia, that § 53a-181 was unconstitutionally vague. Id., 151. Specifically, he argued that his conviction was based on protected speech and that the trial court improperly concluded that his statements to the officers constituted fighting words. Id., 152. The state argued, as an alternate ground for affirming the defendant's conviction, that the statements constituted true threats. Id. Our Supreme Court agreed with the state's alternate ground for affirming the judgment of the trial court. Id. The court first set forth the applicable standard of review. "[An appellate court's] duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across the line between speech unconditionally guaranteed and speech which may legitimately be regulated. . In cases where that line must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. . . . We must make an independent examination of the whole record . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression." (Internal quotation marks omitted.) Id., 152-53. The appropriate standard of review, therefore, is de novo. Id., 153. The court next identified the important legal principles relevant to the "true threats" doctrine in free speech jurisprudence. "The hallmark of the protection of free speech is to allow free trade in ideas — even ideas that the overwhelming majority of people might find distasteful or discomforting. . . . Thus, the First Amendment ordinarily denies a State the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. . . . The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. . . . "The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. . . . The First Amendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . . "Thus, for example, a State may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. . . . Furthermore, the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . And the First Amendment also permits a State to ban a true threat. . . . "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s) individuals from, the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. . . . Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). "The United States Court of Appeals for the Fifth Circuit has articulated the rationale underlying the removal of true threats from first amendment protection. The notion that some expression may be regulated consistent with the first amendment . . . starts with the already familiar proposition that expression has special value only in the context of dialogue: communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . It is not plausible to uphold the right to use words as projectiles where no exchange of views is involved. . . . Schackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991), quoting L. Tribe, American Constitutional Law (2d Ed. 1988) § 12-8, pp. 836-37. "That court further stated that, [a]s speech strays further from the values of persuasion, dialogue and free exchange of ideas the first amendment was designed to protect, and moves toward threats made with specific intent to perform illegal acts, the state has greater latitude to enact statutes that effectively neutralize verbal expression. Schackelfordv. Shirley, supra, 948 F.2d938. Finally, that court concluded that, as expansive as the first amendment's conception of social and political discourse may be, threats made with specific intent to injure and focused on a particular individual easily fall into that category of speech deserving no first amendment protection. Id. Thus, we must distinguish between true threats, which, because of their lack of communicative value, are not protected by the first amendment, and those statements that seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are protected. See Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (statement that speaker would shoot president of United States made at political rally constituted protected political hyperbole). "In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a threat is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. . . . Although a threat must be distinguished from what is constitutionally protected speech . . . this is not a case involving statements with a political message. A true threat, where a reasonable person would foresee that the Us- tener will believe he will be subjected to physical violence upon his person, is unprotected by the first amendment. . . . Moreover, [a]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. DeLoreto, supra, 265 Conn. 153-56. We begin, therefore, by independently reviewing the incidents involving the petitioner and Bryant to determine "whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." (Internal quotation marks omitted.) Id., 156. We conclude, on the basis of our de novo review of the entire factual context, that a reasonable person would believe that the petitioner communicated a serious expression of an intent to commit an act of unlawful violence on Bryant. As we have stated, the petitioner formed an attachment to Bryant and quickly became possessive of her. Bryant rejected his sexual overtures and, following her return from the three day conference, he became "deadly cold." He told Bryant that he did not care what happened to him as long as she suffered, and that she was a "fucking bitch" and that her "ass [was] grass." He promised to "bring [her] down" and stated that she was "history." After receiving his money from Bryant, the petitioner told her that he was going do what he had to do. Barrows, who was present when that statement was made, described the petitioner has having a "face of hate . . . ." Whether the petitioner actually intended to assault Bryant physically at the time he made the statements is of no consequence to our analysis. As our Supreme Court explained, "[i]mminence, however, is not a requirement under the true threats doctrine. Virginia v. Black, supra, 538 U.S. 359-60 (True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. . . . Inre M.S., 10 Cal. 4th 698, 711, 896 P.2d 1365, 42 Cal. Rptr. 2d 355 (1995) (The [defendants] err, however, in assuming the First Amendment always requires the threatened harm be imminent for the threat to be constitutionally punishable. It does not.)." (Internal quotation marks omitted.) State v. DeLoreto, supra, 265 Conn. 158-59. The petitioner's parole condition that he has challenged on vagueness grounds is not aimed directly at activity protected by the first amendment. Cf. Coates v. Cincinnati, 402 U.S. 611, 616, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971). The petitioner's parole was not revoked because he was engaging in the free trade of ideas by speech or conduct, whether expressive or symbolic, that is protected by the first amendment. See Virginia v. Black, supra, 538 U.S. 358; cf. State v. Proto, 203 Conn. 682, 692-95, 526 A.2d 1297 (1987) (provisions of campaign act implicated freedom of expression protected by first amendment). It was revoked because he engaged in a pattern of behavior that encompassed a series of statements and actions that a reasonable person would find to be a "true threat." In State v. Crudup, 81 Conn. App. 248, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004), this court concluded that the threat, "I should pop you," was not entitled to constitutional protection. (Internal quotation marks omitted.) Id., 259. We reach a similar conclusion in the present case. Because "true threats" do not fall within the broad class of protected speech, the petitioner's vagueness challenge does not implicate the first amendment. A facial challenge, therefore, is not warranted, and we test the challenged parole condition for vagueness only as to the facts of the present case. As we have noted, "[i]n order to challenge successfully, on due process grounds, the vagueness of [any] statute as applied to [the] particular facts [of his case] . . . [the petitioner] . . . must show . (1) [that] the statute does not provide fair warning that it applies to the conduct at issue, or (2) that he was the victim of arbitrary enforcement practices." (Internal quotation marks omitted.) State v. Bloom, supra, 86 Conn. App. 469. We further explained that "[t]he proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor's conduct and judged by a reasonable person's reading of the statute . When we apply these principles . . . our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the [petitioner's] acts were prohibited under the ordinance." (Citations omitted; internal quotation marks omitted.) Id.; see also State v. Crudup, supra, 81 Conn. App. 263-64. We conclude that a reasonable person of ordinary intelligence would be on fair notice that the threatening conduct exhibited by the petitioner violated the condition that his release not be "incompatible with the welfare of society." The record indicates that the petitioner touched Bryant in an inappropriate sexual manner, and directed numerous threatening statements and actions toward her after she had invited him to attend her church and offered him assistance. Those actions resulted in a complaint to the Boston police department, the filing of criminal charges and the issuance of a restraining order by the Massachusetts court. To be sure, we are mindful of the constitutional requirement that definiteness applies more strictly to those statutes with penal consequences rather than those merely with civil consequences. State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988). Nevertheless, under those facts and circumstances, we conclude that a reasonable person would foresee that such conduct was not compatible with the welfare of society. The challenged condition of the petitioner's parole, therefore, passes constitutional muster and survives his vagueness challenge on an as applied basis. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 54-125 provides in relevant part: "Any person confined for an indeterminate sentence, after having been in confinement under such sentence for not less than the minimum term, or, if sentenced for life, after having been in confinement under such sentence for not less than the minimum term imposed by the court, less such time as may have been earned under the provisions of section 18-7, may be allowed to go at large onparole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which the person is confined, if (1) it appears from all available information, including such reports from the Commissioner of Correction as such panel may require, that there is reasonable probability that, such inmate will live and remain at liberty without violating the law and (2) such release is not incompatible with the welfare of society. Such parolee shall be allowed in the discretion of such panel to return to his home or to reside in a residential community center, or to go elsewhere, upon such terms and conditions, including personal reports from such paroled person, as such panel prescribes, and to remain, while on parole, in the legal custody and control of the board until the expiration of the maximum term or terms for which he was sentenced. ." (Emphasis added.) The petitioner had indicated that because he was homeless, he was unable to open a bank account. Bryant testified that the petitioner would become agitated and angry when she spoke with other members of the church. On one occasion, he came to the church only to learn that Bryant had an appointment with another individual. The petitioner sat in the lobby "scowling" at Bryant for an hour and questioned why she was not his and why she was not available when he wanted to see her. Bryant subsequently learned of another incident concerning inappropriate touching involving the petitioner. Members of the church would go to a local food bank on a weekly basis and transfer 1600 pounds of food from the food bank to the church. A member of another organization that also worked with the food bank filed a formal complaint against the petitioner. She alleged that he had touched her inner thigh on several occasions and made "funny faces" when she told him to stop. The woman was forced to leave in order to make him stop. As a result of that complaint, the petitioner was not allowed to return to the food bank. Bryant, concerned for her safety and that of her children, requested members of the church to spend the night at her home. At that point, Bryant felt uncomfortable being alone with the petitioner and had asked Barrows to be present. One of the functions of the board is to determine whether a parolee has violated the terms of his or her release and, if so, whether a revocation of parole is appropriate. See generally Hampton v. Manson, 5 Conn. App. 343, 497 A.2d 1044 (1985). At the conclusion of the hearing, the board stated: "This panel has found reason to revoke your parole effective [as of] today's date, January 7, 1997, and our revocation is based upon the testimony and evidence presented to us today, and we found that your parole is not compatible with the welfare of society." The board also indicated that it did not make a finding with respect to whether the petitioner's conduct was also a criminal act. At oral argument before this court, the petitioner strenuously argued that our review is limited solely to his single statement made on May 28, 1996, in which he told Bryant, "Now, I am going to do what I have to do . . . ." He contends that the board found that isolated statement to be the only cause for the revocation of parole. We disagree for two reasons. First, we note that the petitioner did not make that argument to the habeas court. It is well established that this court, absent unusual circumstances, declines to review claims not raised at trial. See Brandy v. Commissioner of Correction, 89 Conn. App. 387, 393 n.6, 873 A.2d 1061 (2005); Mercado v. Commissioner of Correction, 85 Conn. App. 869, 871, 860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005). Moreover, the petitioner did not raise the issue in his brief, which appellate courts generally have interpreted as the abandonment of the issue. See Harris v. Commissioner of Correction, 271 Conn. 808, 842 n.24, 860 A.2d 715 (2004). Second, even if that argument were before us properly, we do not believe that the board's conclusions concerning the revocation of the petitioner's parole should be construed narrowly. As indicated, prior to the hearing, the petitioner was given ample notice that his conduct on or about May 28, 1996, would be scrutinized and reviewed by the board. The notice specifically indicated that the board relied on the police report, the parole violation report, the Massachusetts summons and retraining order and Bryant's statement. The board clearly and properly considered the petitioner's May 28, 1996 statement in the context of his behavior during the preceding weeks. The petitioner's argument to the contrary is unavailing. In the present case, the petitioner is challenging the condition imposed by the board, which is part of the executive branch of state government. The language that is the subject of his appeal, however, trades the text of General Statutes § 54-125. See footnote 1. We conclude that the relevant legal principles apply equally to the challenged language in the present case. Indeed, "[ajmbiguity is, unfortunately, a common statutory ailment. A degree of vagueness is endemic in many statutes." State v. Proto, 203 Conn. 682, 698, 526 A.2d 1297 (1987). "The purpose of parole is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of tire sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison. The essence of parole is release from prison, before completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." (Internal quotation marks omitted.) McLaughlin v. Bronson, 206 Conn. 267, 273, 537 A.2d 1004 (1988). For example, a parolee may be searched by his or her parole officer if there is a mere suspicion that the parolee is violating the terms of his or her release. State v. Whitfield, supra, 26 Conn. App. 109. Additionally, the failure to abide by the conditions result in a return to imprisonment without the burden of an adversary criminal trial. See Morrissey v. Brewer, supra, 408 U.S. 483. More specifically, an individual's "parole may initially be revoked only upon a preliminary determination of probable cause, and finally revoked upon a later hearing at which the following minimum requirements of due process were satisfied: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." (Internal quotation marks omitted.) Lee v. Board of Educa tion, 181 Conn. 69, 78, 434 A.2d 333 (1980), on appeal after remand sub nom. Halpern v. Board of Education, 231 Conn. 308, 649 A.2d 534 (1994); see also Morrissey v. Brewer, supra, 408 U.S. 489. The fourteenth amendment to the United States constitution, § 1, provides in relevant part: "No State shall . . . deprive any person of life, liberty or property, without due process of law . . . ." The first amendment to the United States constitution, made applicable to the states through the fourteenth amendment, provides in relevant part: "Congress shall malee no law . . . abridging the freedom of speech . . . Our Supreme Court has explained that "[a] facial challenge . . . means a claim that the law is invalid in toto — and therefore incapable of any valid application." (Internal quotation marks omitted.) Packer v. Board of Education, supra, 246 Conn. 97 n.14. The first incident involved the defendant in DeLoreto and Robert Labonte, a Wethersfield police officer. Labonte was jogging and noticed a car driving slowly behind him and recognized the defendant as the operator. State v. DeLoreto, supra, 265 Conn. 148. The defendant had named Labonte as a defendant in a civil action that had been filed in federal court. Id. The defendant directed an obscene hand gesture toward Labonte and threatened to "kick [Labonte's] ass." (Internal quotation marks omitted.) Id. The defendant then stopped his vehicle in front of Labonte, opened the door and threatened him again. Id., 148^9. He then drove past Labonte, got out of the vehicle and ran toward Labonte, verbally threatening him and causing him to prepare to defend himself. Id., 149. The second incident, which occurred six days after the first, involved the defendant and Andrew Power, who was also a Wethersfield police officer. Id. Power was at a convenience store and encountered the defendant, who was attempting to read Power's name badge. Id. Power told the defendant his name and asked him to refrain from making an obscene hand gesture at Power, which the defendant had done five to ten times prior to their meeting. Id., 149-50. The defendant acted aggressively toward Power, who assumed a defensive position. Id., 150. The defendant then followed Power out of the store and told him several times that he was going to "lack [Power's] punk ass" and continued to yell at Powers until he left. (Internal quotation marks omitted.) Id. In Watts v. United States, supra, 394 U.S. 708, the United States Supreme Court concluded that a direct threat to shoot President Lyndon Johnson made during a public rally on the Washington Monument grounds, viewed in context, constituted protected political speech. It is clear that a court must consider the context in which the challenged statement was made. In the present case, the context of the petitioner's statement leads us to the conclusion that it was not protected speech, but was a true threat directed at Bryant. See id. "The proscription of the activity, however, need not be definite as to all aspects of its scope. A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions. . . . (It is not necessary . . . that a statute list the precise conduct prohibited or required. . It is recognized that the law may be general in nature; the constitution requires no more than a reasonableness of certainty. . . .)" (Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 443-44, 668 A.2d 348 (1995); see also Packer v. Board of Education, supra, 246 Conn. 101.

Opinion DRANGINIS, J. The defendant, Maurice Flanagan, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and 53a-48 (a). On appeal, the defendant claims that (1) there was insufficient evidence to support the jury's verdict and (2) the court denied him the constitutional right to represent himself. We disagree and accordingly affirm the judgment of the trial court. This appeal concerns another chapter in the hostile, violent and deadly rivalry between two street gangs, the Latin Kings and Los Solidos. See, e.g., State v. Ramos, 261 Conn. 156, 173, 801 A.2d 788 (2002); State v. Torres, 242 Conn. 485, 487, 698 A.2d 898 (1997). The jury reasonably could have found the following facts. On May 5,1994, Chanito Roman, a member of Los Solidos was killed in a drive-by shooting. Los Solidos members believed that the Latin Kings were responsible for his death. While attending Roman's wake, the statewide leader of Los Solidos, George Rivera, ordered members of that gang to kill two members of the Latin Kings for every Los Solidos member killed by the Latin Kings. The defendant heard Rivera's order. The defendant then approached the head of the local Los Solidos organization, Aramy Rivera, and urged him to avenge Roman's death. Following the wake, the defendant and other Los Solidos met at the home of Pennie Yonan to discuss their response to Roman's death. Aramy Rivera told the assembled group to "do a mission" on the Latin Kings. The defendant was eager to oblige. George Rivera agreed to provide the local organization with a stolen vehicle, and Yonan acquired black ski masks and sweatshirts for the group. On May 13, 1994, the defendant took an AK-47 rifle and some bullets to Yonan's home and stored them in an upstairs bedroom where other Los Solidos weapons were kept. When Yonan asked the defendant what he was going to do with the weapon, the defendant told her that it was for the Latin Kings and for Roman. Los Solidos members waited for an opportunity to carry out their plan. On Saturday, May 14, 1994, members of both gangs attended a keg party in a field in New Britain. During the party, two men, one from each gang, argued and were about to engage in a fistfight when a member of the Latin Kings drew a gun, pointed it at the man associated with Los Solidos and told the two men to stop fighting. Hector Rodriguez and Patrick Gannon, members of the Latin Kings, thereafter left the party with Walter Rodriguez and went to Walter Rodriguez' home. While they were standing on the sidewalk, Alex Morales, a Los Solidos member, saw the three men with weapons. Via telephone, Morales communicated his observations to leaders of the local Los Solidos organization and was informed that "they were taking care of it." Morales later saw the three men leave the area in a white Monte Carlo (white vehicle). Subsequent to receiving the telephone message from Morales, leaders of the local Los Solidos organization talked with a few members of the gang and confirmed that a member of the Latin Kings had drawn a gun on someone associated with them. Larry Gatlin was not yet a member of Los Solidos, but wanted to become one. Gatlin informed Los Solidos leaders that he wanted to participate in "catching wreck" on the Latin Kings. "Catching wreck" is the gang's term for fighting or "retaliating in kind." A number of Los Solidos, including the defendant, gathered at Yonan's house. The defendant and another member of Los Solidos retrieved the gang's weapons, a dock nine millimeter pistol, two revolvers, two .38 caliber handguns, the AK-47 rifle and bullets. Aramy Rivera ordered the defendant to clean the weapons to remove any fingerprints on them. Everyone except Aramy Rivera put on gloves and a black hooded sweatshirt. Aramy Rivera kept a blue and red bandana, the gang's colors, on his head because "this was for [Roman]." George Rivera, the state leader, had provided the local Los Solidos with the requested stolen vehicle, which was parked on the street near Yonan's house. When Los Solidos members left Yonan's house, the defendant was carrying the Glock pistol and the AK-47 rifle. Following some logistical movements, the defendant and two other Los Solidos members got into the stolen vehicle. The defendant was seated in the front passenger seat. Aramy Rivera told the men to "catch wreck" and not to return without "catching wreck." The men in the stolen vehicle later met Gatlin, who joined them, and told them that the Latin Kings were in a "big, old white car. " The defendant and three cocon-spirators went in search of the white vehicle. Los Solidos members in the stolen vehicle did not find the white vehicle in the housing complex where it was last seen, so they drove through New Britain until they saw it on West Main Street. They followed the white vehicle. At approximately 9:50 p.m., when the white vehicle was stopped at the intersection of Overlook and Selander Streets, the defendant told the operator of the stolen vehicle to turn off the lights and to drive to the side of the white vehicle. Gatlin told the defendant to move his seat forward, which he did. Gatlin then stuck a rifle out the window, and the defendant took out the Glock pistol. As the stolen vehicle was driven around the white vehicle, Gatlin began to shoot. The defendant also shot his weapon, which contained seventeen rounds. The side windows of the white vehicle were shattered, and the vehicle rolled into the intersection and struck the curb. The defendant and one of the backseat passengers got out of the stolen vehicle and continued to shoot at the white vehicle. Suddenly, the white vehicle moved in reverse and turned left on to Governor Street. The defendant ran after it, continuing to fire his weapon. The defendant got back into the stolen vehicle and ordered the operator to follow the white vehicle. The stolen vehicle went off the road when the operator lost control of it. Los Solidos abandoned the chase. The defendant returned to Yonan's house with the AK-47 rifle. To Yonan, the defendant seemed happy. After he changed his clothing, the defendant went out with other members of Los Solidos to the apartment of Veronica Reyes. According to Reyes, the group was laughing and celebrating something. Inside the white vehicle at the time of the shooting were Walter Rodriguez and Reinaldo Mercado and two members of the Latin Kings, Gannon and Hector Rodriguez. Both Hector Rodriguez and Gannon were struck in the head by bullets and died of their injuries. During an autopsy of Gannon's body, a bullet was removed from his brain. It was a .30 caliber bullet with markings consistent with having been fired from an AK-47 rifle. Walter Rodriguez was shot in his right arm and side, and his left thumb and wrist. The bullet that struck his right side penetrated his spleen and diaphragm. Mercado sustained cuts to his face. Gary Chute, Jr., a member of the New Britain police department, recovered nine nine millimeter shell casings at the intersection of Overlook and Selander Streets that night. The shell casings were consistent with having been fired from a Glock firearm. The jury found the defendant guilty of conspiracy to commit assault in the first degree. The defendant filed motions for judgment notwithstanding the verdict, and for a new trial and a judgment of acquittal, all of which were denied. I The defendant first claims that the state did not present sufficient evidence for the jury to find him guilty of conspiracy to commit assault in the first degree in violation of § 53a-59 (a) (1) and 53a-48 (a). More specifically, he claims that the state presented evidence of a conspiracy only to commit murder, a charge of which he was acquitted. The defendant claims that the state did not present evidence of a conspiracy to cause serious physical injury, as required by the statutes with which he had been charged. The defendant's claim is contrary to the evidence and the law. See, e.g., State v. Murray, 254 Conn. 472, 482-83, 757 A.2d 578 (2000), and State v. Rodriguez, 180 Conn. 382, 403-405, 429 A.2d 919 (1980). "The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . "We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Rivera, 90 Conn. App. 312, 315-16, 876 A.2d 606, cert. denied, 275 Conn. 925, 883 A.2d 1250 (2005). "It is undisputed that, to sustain a conviction under § 53a-48 (a), the state had to establish, beyond a reasonable doubt, that the defendant had agreed with one or more persons to engage in criminal conduct. Specifically, the state had to show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense." (Emphasis in original; internal quotation marks omitted.) State v. Asberry, 81 Conn. App. 44, 48, 837 A.2d 885, cert. denied, 268 Conn. 904, 845 A.2d 408 (2004). "The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act." (Internal quotation marks omitted.) State v. Estrada, 28 Conn. App. 416, 420-21, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992), quoting State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 (1970). "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . ." General Statutes § 53a-59 (a) (1). " 'Serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . ." General Statutes § 53a-3 (4). "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." General Statutes § 53a-48 (a). The defendant has argued that the state presented evidence of a conspiracy only to commit murder. Although there was evidence that after Roman's wake, members of the local Los Solidos organization decided to take revenge for Roman's death by following George Rivera's order to kill two members of the Latin Kings for every member of Los Solidos killed by the rival gang, there also was evidence that on May 14, 1994, members of Los Solidos were motivated to "catch wreck" for the nonfatal incident that occurred at the keg party earlier in the afternoon. We have no idea how the jury reached its verdict, but it could have construed "catching wreck" to mean something less than murder. We need not base our decision on this possibility, however, because, as a matter of law, our Supreme Court has held that the intent to cause death necessarily includes the intent to cause serious physical injury. State v. Rodriguez, supra, 180 Conn. 402-405. "The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. This is especially true where a person has caused the death of another person. The death of a person may be caused by a purely accidental act or omission of another . or it may come about as the result of long and careful planning, for which the law prescribes severe penalties. Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person's state of mind is usually proved by circumstantial evidence "Where the state is faced with a homicide prosecution, it may, in good faith and where the circumstances reasonably warrant, assume that an accused acted with the most culpable state of mind. But where the evidence is reasonably susceptible of another conclusion, [the trier of fact] . . . should not be bound by that assumption and forced by its verdict to choose only between the offense with the most culpable state of mind and acquittal. Such a result would limit the juiy's function of determining questions of fact . . . ." (Citations omitted.) Id., 404. "In State v. Montanez, 219 Conn. 16, 21, 592 A.2d 149 (1991), [our Supreme Court] concluded that, although the evidence in that case permitted the inference that the defendant had intended only to injure the victim, '[i]t did not preclude the equally permissible inference that the defendant [had] intended to kill the victim . . . .' The converse is equally true. As [the court has] determined previously, under some circumstances, the intent to cause death and the intent to cause serious physical injury may be possessed simultaneously." State v. Murray, supra, 254 Conn. 481. "It is difficult to imagine how the intent to cause death does not encompass an intent to injure when death is the ultimate impairment of one's physical condition. Therefore, one cannot intend to cause death without necessarily intending to cause a physical injury." Id., 482-83. On the basis of the guidance provided by our Supreme Court, we conclude, therefore, that one who conspires to cause death also conspires to cause serious physical injury. For the foregoing reasons, we conclude that there was sufficient evidence before the jury for it to find, in a manner consistent with our law, that the defendant was guilty of conspiracy to commit assault in the first degree. II The defendant's second claim is that the court improperly denied him due process of law and the constitutional right to represent himself by failing to canvass him pursuant to Practice Book § 44-3 and applying an incorrect legal standard to his motion to proceed pro se. We are not persuaded because the test articulated in Practice Book § 44-3 is applied to determine whether a criminal defendant is waiving his sixth amendment right to counsel in an intelligent, voluntary and knowing manner. When a defendant indicates during trial that he wants to represent himself, the court is to exercise its discretion as to whether to turn to Practice Book § 44-3. With respect to his claim, the defendant concedes that he failed to bring Practice Book § 44-3 to the trial court's attention and asks this court to review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. We will review the defendant's claim pursuant to Golding because the record is adequate for our review and the claim is one of constitu tional magnitude. The defendant cannot prevail, however, because a constitutional violation does not clearly exist, and the court's refusal to let the defendant represent himself also was not plain error. The defendant's claim concerns the following facts. After the state rested its case, counsel met with the court in chambers. At that time, defense counsel informed the court that he would not present any evidence and that the defendant disagreed with his trial strategy. When court reconvened, the court addressed the defendant, telling him that it was aware of counsel's trial strategy and that the defendant disagreed with it. The defendant responded by informing the court that he had been convicted in a prior trial in which his counsel had not presented evidence. The defendant considered his current counsel's strategy to be too narrow. He wanted to give the jurors other options to consider. He likened his counsel's strategy to that of a pawn in a game of chess, i.e., it attacked in only one direction. The court told the defendant that trial strategy was a decision for counsel to make after consulting with his client. The court questioned the defendant and his counsel, and determined that counsel had met with the defendant and explained his strategy. The court explained to the defendant that his counsel is "a very experienced attorney. He has tried many cases. I've had the opportunity to observe his performance in this case from . . . January 8, 2003, when we had some hearings on motions. And as far as I'm concerned, his performance has been beyond competent and been superior. If these are his decisions, I'm sure he has given them ample consideration. I'm sure he has taken into consideration your feelings about it, and those are decisions that are left to the attorney for good reason, sir." Nonetheless, the defendant stated that he wanted to call an unnamed Federal Bureau of Investigation (FBI) infor mant, who would testify that the defendant had been in another city at the time of the crime. The court canvassed the defendant about his right to testify and elicited from the defendant that counsel had advised him of his right to testify or not to testify. The defendant stated that he would not testify. The court then addressed both counsel, informing them that the court would give to the jury the standard charge regarding a defendant's right to testify or not to testify. The defendant interrupted the proceedings. "[The Defendant]: Excuse me, Your Honor. Don't I have the right to finish this case myself without him there? "The Court: In a word, no. But are you making that request to represent yourself in the remainder of the case? "[The Defendant]: I mean, if he's not going to do what I feel is in my best interest, I don't think that he should be my attorney. I mean, this is my life. Like I explained to him, when this is over, if I lose, he just goes on to another case. I'm the one who has to go to jail. And he's not doing what I feel is in my best interest. He's doing what he feels is in his best interest, not mine. So, I don't understand how his interest comes before my interest. "The Court: Well, it doesn't appear to me . . . based on my observations of [defense counsel's] performance from January 8, 2003, to today, which is March 18, 2003, that his decisions and his actions have been in his interest as opposed to yours. So, I'm — and I can't imagine why he'd be changing courses now. I mean, [defense counsel's] decisions, as best as I have observed, have been solely in your interest. And his performance has been beyond competent and, in my view, superior over the last two and one-half months. So, while you may disapprove of his trial tactics, and I understand your feelings, his obligation is to consult with you and then to make his best professional decisions. The fact that you disagree with him over trial tactics does not, at this stage of the case where the state is about to rest, after we have been on trial essentially for about two and one-half months, does not constitute the kind of exceptional circumstances that I would have to find in order for me to allow you either to have a new lawyer or to represent yourself at this point in time. So, if you're making a request of me that you be allowed to represent yourself or that you be allowed to retain or have new counsel appointed for you, that request is denied." (Emphasis added.) The defendant did not respond, and the court moved on to other business. The defendant's claim on appeal is that the court applied the wrong standard in determining whether to let him act as his own counsel for the remainder of the trial. He contends that the court should have canvassed him pursuant to Practice Book § 44-3 rather than ruling that exceptional circumstances did not exist to permit him to retain new counsel or to represent himself. The state has argued that because the defendant's motion to proceed pro se was not clear and unequivocal and was untimely, among other things, he failed to assert his constitutional right to represent himself. We agree with the state. "[Practice Book § 44-3] was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney . Before a trial court may accept a defendant's waiver of counsel, it must conduct an inquiry in accordance with [Practice Book § 44-3], in order to satisfy itself that the defendant's decision to waive counsel is knowingly and intelligently made." (Emphasis added; internal quotation marks omitted.) State v. Diaz, 274 Conn. 818, 829, 878 A.2d 1078 (2005). "Although it may be settled law that a criminal defendant has an absolute right to self-representation, that right is not self-executing." (Internal quotation marks omitted.) State v. Bangulescu, 80 Conn. App. 26, 41, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003). Claims concerning a violation of Practice Book § 44-3 frequently occur in the context of a claim that the court improperly permitted the defendant to represent himself. See, e.g., State v. Diaz, supra, 828-29; State v. D'Antonio, 274 Conn. 658, 705-14, 877 A.2d 696 (2005); State v. Ming Zhi Li, 90 Conn. App. 52, 54-58, 875 A.2d 579 (2005); State v. Gaston, 86 Conn. App. 218, 228-35, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005). Our Supreme Court decided the factual and legal issue presented here in State v. Carter, 200 Conn. 607, 611-15, 513 A.2d 47 (1986). "There is no doubt that a defendant has a right under both the state and the federal constitutions to represent himself at his criminal trial." Id., 611. "The constitutional right of self-representation depends, however, upon its invocation by the defendant in a clear and unequivocal manner." Id., 612. "In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant's interest in representing himself, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant's interest in personal autonomy." Id., 613. "When a defendant's assertion of the right to self-representation is not clear and unequivocal, recognition of the right becomes a matter entrusted to the exercise of discretion by the trial court." Id., 613-14. "In the exercise of that discretion, the trial court must weigh into the balance its obligation to indulge in every reasonable presumption against waiver of the right to counsel." (Internal quotation marks omitted.) Id., 614. In Carter, the defendant voiced dissatisfaction with his counsel, particularly "that his public defender was not properly examining prosecution witnesses so as to expose the alleged falsity of their testimony, and complained that the public defender did not want him to testily. In the course of that colloquy with the court, he stated: 'I am misrepresented and now I have to represent myself.' [The defendant later stated that] 'I'll have to represent myself.' Although he subsequently reiterated his desire to question a witness, that request was again couched in terms of his request for a different public defender." Id., 611. Our Supreme Court reasoned that the trial court "responded to the defendant's concerns by providing explanations concerning trial proce dures and by offering the defendant repeated opportunities for further consultations with counsel. The defendant's apparent acquiescence in the continuation of trial with appointed counsel demonstrates that the trial court did not abuse its discretion in its conduct of the defendant's case." Id., 614-15. The facts at issue here cannot be distinguished from the facts of Carter. The defendant here questioned whether he had the right to represent himself in the context of disagreeing with his counsel's trial strategy. Each time the defendant posed a question to the court or expressed his feelings, the court responded with understanding as to the defendant's feelings and gave information to answer the questions. The court explained to the defendant that counsel is to consult with the client, but that trial strategy is a decision for counsel to make. The court recognized the defendant's concerns, given his prior conviction. The court also told the defendant that on the basis of his observations over two and one-half months of trial, defense counsel's performance was more than competent, it was superior. The defendant never responded to the court's explanations by asserting a clear and unequivocal request to represent himself. We particularly are persuaded by the fact that the court specifically asked the defendant if he was making a request to represent himself. The defendant responded in an equivocal manner by posing yet another question. Our conclusion that the defendant's request to represent himself was not clear and unequivocal is buttressed by the court's lack of understanding as to what the defendant was requesting when it ruled: "So, if you're making a request of me that you be allowed to represent yourself or that you be allowed to retain or have new counsel appointed for you, that request is denied." (Emphasis added.) The defendant thereafter made no effort to make clear to the court what he wanted. The state also has argued that the defendant's request to proceed pro se was untimely, as it was made at the conclusion of the state's case. At that time, the defendant stated to the court that he wanted to present the testimony of an unidentified FBI informant to give the jury options to consider during deliberations. In response to that argument, the defendant responded in his reply brief that Practice Book § 44-3 provides that a defendant may waive the right to counsel and represent himself at any stage of the proceedings and that failure to comply with the terms of the rules of practice is plain error, but he cited no law to support his argument. The defendant has misconstrued the rule of practice. "The rules of statutory construction apply with equal force to Practice Book rules. . A basic tenet of statutory construction is that when a statute [or a rule of practice] is clear and unambiguous, there is no room for construction. . . . When we have occasion to construe rules of criminal procedure, they are to be strictly construed to protect the fundamental constitutional right to liberty. . . . State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992)." (Internal quotation marks omitted.) State v. Francis D., 75 Conn. App. 1, 13 n.5, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). Practice Book § 44-3 provides in relevant part that a defendant may represent himself "at any stage of the proceedings . . . .''It does not provide that the defendant may assert that right at any stage of the proceeding. Federal courts have established that a timely assertion of the right to represent one's self is necessary to invoke that federal constitutional right. Even though the right to self-representation is founded in the federal constitution, the United States Supreme Court has suggested that the request must be timely so that it does not disrupt the proceedings. Fare-tta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ("[w]ell before the date of trial"). Legal scholars have noted with respect to the decisions of federal courts that "Faretta suggests only three possible grounds for denying [a clear and unequivocal] request. . . . Faretta stressed that the request in that case was made '[w]ell before the date of trial.' This suggests that, at some point, a request might be so disruptive of the orderly schedule of proceedings as to justify rejection on that ground alone. Provided [the] defendant does not demand additional time to prepare, lower courts generally deem pro se motions to be timely as long as they are made before trial. On the other hand, the trial court is recognized as having broad discretion to reject as untimely a request made during the course of trial." 3 W. LaFave, J. Israel & N. King, Criminal Procedure (1999) § 11.5 (d), pp. 582-83. There are several cases decided by the United States Court of Appeals for the Second Circuit that have acknowledged or abided by the timeliness rule. In the context of the federal statutory right to self-representation in a civil action, the Second Circuit has stated that "[t]he few qualifications which this court has put on the clear language of self-representation clause of [28 U.S.C.] § 1654 are consistent with its high purpose. One such qualification, enunciated in criminal cases, see United States v. Bentvena, 319 F.2d 916, 938 [(2d Cir.), cert. denied sub nom., Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963)]; United States ex rel. Maldonado v. Denno, 348 F.2d 12,15 (2[d] Cir. 1965), [cert. denied sub nom., DiBlasi v. McMann,] 384 U.S. 1007, 86 S. Ct. 1950, 16 L. Ed. 2d 1020 (1966), but equally applicable in civil cases, is that the right to self-representation must be timely asserted. The right is 'unqualified' if invoked prior to trial but is 'sharply curtailed' if first asserted after the trial has begun. [United States ex rel. Maldonado v.] Denno, supra, 348 F.2d at 15. An untimely request is committed to the discretion of the trial court, which may consider, among other factors, the reason for the request, the quality of counsel representing the moving party, the party's prior proclivity to substitute counsel, and the potential disruption to the proceedings. See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2[d] Cir. 1976)." O'Reilly v. New York Times Co., 692 F.2d 863, 867-68 (2d Cir. 1982). The facts here are undisputed that the defendant expressed his dissatisfaction with his counsel's strategy at the conclusion of the state's case. Before the court could permit the defendant to proceed pro se, however, it would have had to discharge his counsel. The standard of review of a motion to discharge counsel is abuse of discretion. State v. Fisher, 57 Conn. App. 371, 382, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000); see also 3 W. LaFave, J. Israel & N. King, supra, p. 583 n.60 (motion made during course of trial analogized to motion to switch counsel during trial, rests in sound discretion of court). We conclude that even if the defendant's motion could be construed as a request to proceed pro se, the court acted well within its discretion. "It is within the trial court's discretion to determine whether a factual basis exists for appointing new counsel and, absent a factual record revealing an abuse of discretion, the court's refusal to appoint new counsel is not improper. . . . Moreover, appellate tribunals look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial . Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Fisher, supra, 57 Conn. App. 382. "While courts must be assiduous in their defense of an accused's right to counsel, that right may not be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), [cert. denied sub nom. Tortorello v. United States, 410 U.S. 926, 93 S. Ct. 1357, 35 L. Ed. 2d 587 (1973)], quoting United States v. Bentvena, [supra, 319 F.2d 936]." (Internal quotation marks omitted.) State v. Patavino, 51 Conn. App. 604, 609, 724 A.2d 514, cert. denied, 249 Conn. 919, 733 A.2d 236 (1999). Here, the court found no exceptional circumstances to warrant the discharge of the defendant's counsel immediately prior to final arguments. Although the defendant asserted that he had an alibi witness, he failed to identify the witness and where the witness was located. Factual determinations regarding the discharge of counsel are to be made by the court. State v. Fisher, supra, 57 Conn. App. 382. Credibility is a question of fact. State v. Farnum, 275 Conn. 26, 38, 878 A.2d 1095 (2005). The court had a high opinion of defense counsel. Appellate court judges, like jurors, do not leave their common sense at the courthouse door. It is implausible that defense counsel of the caliber described by the court would fail to investigate an alibi witness if the defendant had made that person known to counsel. We conclude therefore that the court did not abuse its discretion in determining that no exceptional circumstances existed to permit the defendant to discharge his counsel at the conclusion of the state's case. To have permitted the defendant to proceed pro se at that stage of the proceedings would have been disruptive to the judicial proceeding. The judgment is affirmed. In this opinion BISHOP, J., concurred. The jury found the defendant not guilty of two counts minder in violation of General Statutes § 53a-54a (a) and 53a-8, two counts of attempt to commit murder in violation of General Statutes § 53a-54a (a), 53a-8 and 53a-49 (a) (2), and one count of conspiracy to commit murder in violation of General Statutes § 53a-54a (a) and 53a-48 (a). Practice Book § 44-3 provides: "A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: "(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; "(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; "(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and "(4) Has been made aware of the dangers and disadvantages of self-representation." The defendant provided no constitutional analysis pursuant to the constitution of Connecticut. We therefore confine our review to the federal constitution. The state argued in its brief that there are multiple conditions that the defendant had to satisfy before he could waive his constitutional right to counsel and proceed pro se. One condition is that the request must be clear and unequivocal. State v. Carter, 200 Conn. 607, 612, 513 A.2d 47 (1986). "In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the court suggested three grounds for denying a defendant his right to self-representation: (1) he makes the request in untimely fashion such that granting it would disrupt the proceedings; id., 807; (2) the defendant engages in serious obstructionist misconduct; id., 834 n.46; and (3) the defendant has not knowingly and intelligently waived his right to counsel. Id., 835; see 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5 (d), pp. 47-49." (Internal quotation marks omitted.) States. Townsend, 211 Conn. 215, 221 n.4, 558 A.2d 669 (1989). "The clear and unequivocal request formulation has been said to have developed primarily as a standard designed to minimize abuses by criminal defendants who might be inclined to manipulate the system. See generally comment, 'The Right to Appear Pro Se: Developments in the Law,' 59 Neb. L. Rev. 135, 141-43 (1980). If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel. . . . United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965), cert. denied sub nom. DiBlasi v. McMann, 384 U.S. 1007, 86 S. Ct. 1940, 16 L. Ed. 2d 1020 (1966) . . . ." (Citations omitted; internal quotation marks omitted.) State v. Gethers, 197 Conn. 369, 377 n.8, 497 A.2d 408 (1985). Carter cites numerous federal and state court decisions in accord with its holding. See State v. Carter, supra, 200 Conn. 612-14. This rule of discretion and factors to be considered with respect to motions to proceed pro se made during trial have been adopted by the courts of a number of states. See, e.g., State v. Christian, 657 N.W.2d 186, 193-94 (Minn. 2003); State v. Fuller, 337 S.C. 236, 241, 523 S.E.2d 168 (1999); State v. Bean, 171 Vt. 290, 297-98, 762 A.2d 1259 (2000). The court found the caliber of representation provided by defense counsel to be superior. On the basis of the record before this court, we are inclined to agree with that opinion. The defendant was charged with six serious crimes, including murder, and was convicted of only the least serious charge. With all due respect to the dissent's right to view the essence of the defendant's remarks to the trial court as a request to proceed pro se, the majority takes exception to the dissent's characterization of its holding as the adoption of a per se rule that any request for self-representation is untimely if made after trial begins. The majority opinion stands for the proposition that the denial of an untimely request to proceed pro se is not per se a violation of a defendant's constitutional right to self-representation. Whether a request to proceed pro se is untimely is a matter to be left to the discretion of the trial court. The federal law cited by the majority applies to the facts of this case. The majority recognizes that under a different factual scenario, a trial court may well conclude that the defendant's assertion of his right to proceed pro se would not disrupt the proceedings, even if raised during the middle of trial.

Opinion SCHALLER, J. The respondent mother appeals from the judgment of the trial court denying her motion to revoke the commitment of her two minor children, P and W, and approving the permanency plan requested by the petitioner, the commissioner of children and families (commissioner). On appeal, the respondent claims that the court improperly maintained the commitment and approved the permanency plan of long-term foster care. We affirm the judgment of the court. The record discloses the following facts and procedural history relevant to the respondent's appeal. The commissioner filed neglect petitions alleging that the children were being denied proper care and attention and living in conditions that were injurious to their well-being. In an addendum to the petitions, the commissioner set forth the following: "[The respondent] is not providing for the children's physical needs in that the conditions of the home and the children are unkempt and dirty. [The respondent] does not provide for the educational needs of the children in that . . . [P] has been absent eleven days and tardy seven [and W] has been absent six days and tardy ten days since they began school on October 27, 1999. [The respondent] has not address [ed] [the] children's medical needs in that the children have not been followed up with medical providers for hearing, sight and lice. [The respondent] has provided inadequate supervision for the children in that [an older sibling] has taken the role of the parent. [Finally, the] [f]ather is currently incarcerated and unable to provide for his children." The commissioner applied for and received an order of temporary custody, effective March 10,2000. On August 16, 2000, the court adjudicated the children to be neglected and ordered that they be committed to the care and custody of the commissioner. That commitment was extended on several occasions, during which time the children were placed into foster care. The court specifically ordered the respondent to cooperate with the department of children and families (department) and to keep all appointments, as well as to inform both the department and the children's attorney as to her whereabouts. The respondent also was instructed to participate in both individual and parenting counseling and to submit to random drag testing and a substance abuse evaluation. In an order dated September 2, 2003, the court, Dan-nehy, J., found clear and convincing evidence that it was not reasonable to continue making efforts to reunify the children with the respondent and approved the department's plan of placing them in long-term foster care with the relatives with whom they had been living. Judge Dannehy also determined that a cause for commitment remained. The court found that the respondent's one bedroom Hartford apartment was too small for her, the children's father and the two children, and instructed the respondent to obtain adequate housing before the commitment could be revoked. The respondent maintained weekly contact with the children by way of daylong Sunday visits. In March, 2004, the commissioner filed a motion to review the permanency plan and to maintain the commitment. The respondent filed an objection, arguing that no cause for commitment presently existed, as the respondent had moved into a two bedroom apartment in East Hartford. She also filed a motion to revoke the commitment. On May 4, 2004, the court, Hon. William L. Wollen-berg, judge trial referee, held a hearing with respect to the parties' motions. At the hearing, two witnesses testified and two social studies were presented to the court for review. At the conclusion of the hearing, the court issued its oral decision. The court determined that the primary issue for the commitment had been the lack of adequate housing, specifically, the size of the respondent's Hartford apartment. The court noted that the respondent subsequently had moved into a two bedroom apartment in East Hartford but had failed to obtain sufficient furniture. Although the apartment contained several pieces of electronic equipment, such as a big screen television, a DVD player and a laptop computer, the only furniture was a futon couch. There were no tables, chairs or beds, and there was nothing in the children's bedrooms. The court also was troubled by the respondent's failure to actively seek reunification with her children. The court ultimately concluded that it would be in the children's best interests to remain with the foster parents. The court approved the permanency plan and denied the respondent's motion to revoke the commitment. The court further relied on a prior ruling that the department did not need to make efforts to reunify the children with the respondent. This appeal followed. Additional facts will be set forth as necessary. The respondent claims that the court improperly denied her motion to revoke the commitment of her two children and approved the department's permanency plan of long-term foster care. We begin by setting forth the legal principles that apply to this issue. "Our review of this claim is controlled by General Statutes § 46b-129 (m), which provides in relevant part: The commissioner, a parent or the child's attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interest and welfare of such child or youth, the court may revoke the commitment of any child or youth. . . . The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child's best interests." (Internal quotation marks omitted.) In re Krystal J., 88 Conn. App. 311, 314, 869 A.2d 706 (2005); see also In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979); In re Juvenile Appeal (85-1), 3 Conn. App. 158, 160, 485 A.2d 1355 (1985). With respect to the best interest prong, "when it is the natural parents who have moved to revoke the commitment, the state must prove that it would not be in the best interests of the child to be returned to his or her natural parents." In re Thomas L., 4 Conn. App. 56, 57, 492 A.2d 229 (1985). We now set forth the applicable standard of review. "On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclu sion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous." (Internal quotation marks omitted.) In re Krystal J., supra, 88 Conn. App. 314-15; In re Cesar G., 56 Conn. App. 289, 293, 742 A.2d 428 (2000). In the present case, the court focused on the best interests of the children and did not make an express finding with respect to the issue of whether a cause for commitment remained. Although the court referred to the housing issue, as well as to the respondent's depression, it is not clear whether the court found that those factors constituted a reason for commitment. Although the respondent successfully filed a motion for an articulation, the trial court, in its articulation, did not identify or explain whether a cause for commitment continues to exist. The respondent did not make any further request or file a motion for further articulation in that matter. We therefore conclude that we have been presented with an inadequate record and lack the basis from which to determine whether the trial court improperly failed to make an express finding with respect to the issue of whether a cause for commitment remains. See In re Juvenile Appeal (85-1), supra, 3 Conn. App. 161 (ambiguous decision provided no firm basis on which we could determine whether trial court had abused its discretion). To revoke the commitment, the respondent must first prove that no cause for commitment presently exists. Second, the commissioner must fail in her burden to establish that it would be in the best interests of the children to remain committed. Both prongs must be satisfied in favor of the respondent in order for the commitment to be revoked. Although the court failed to identify its findings with respect to the issue of whether a cause for commitment remained, and the respondent therefore cannot establish that the court's ruling was improper, under the facts and circumstances of this case, we are able to resolve the respondent's appeal on the basis of the court's clear and unequivocal finding that it would be in best interests of the children to remain with their foster parents. We therefore turn our attention to that issue. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment. . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . we are not privileged to usurp that authority or to substitute ourselves for the trial court. . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Haley B., 81 Conn. App. 62, 67, 838 A.2d 1006 (2004); In re Alexander C., 60 Conn. App. 555, 559, 760 A.2d 532 (2000). Guided by that deferential standard of review, we examine the evidence that was before the court to determine whether it abused its discretion in finding that the commissioner successfully established that it would be in the best interests of the children to remain in the custody of the foster parents. Two witnesses testified at the hearing. The first was Geoff Genser, a social worker, who testified that the respondent had participated in his parenting class. Genser stated that she completed that course by attending sessions on a weekly basis from January through April, 2003. He further indicated that she suffered from a form of depression known as dysthymia. Genser explained that dysthymia is a long-lasting, mild form of depression and that the respondent would benefit from additional treatment. He did believe, however, that the respondent could parent her children adequately. On cross-examination by the commissioner, Genser stated that depression could negatively affect the parenting abilities of an individual in the areas of adequate supervision, providing both food and a home, ensuring that the children's medical needs were met and that they attended school. In short, Genser testified that the respondent's depression could be a factor with respect to the conditions that led to the filing of the neglect petitions. Genser also noted that the depression suffered by the respondent could have caused her to procrastinate in obtaining a larger apartment, which she had been instructed to obtain by a prior court order. The other witness to testify at the hearing was Annette Charles, a social worker employed by the department and who had been assigned to the respondent's case in February, 2003. Charles indicated that she performed monthly visits to the respondent's home. Charles testified that the respondent moved from her one bedroom apartment in Hartford to a two bedroom apartment in East Hartford, but failed to inform the department of that change in address. Charles was unable, therefore, to conduct her visits from November, 2003, until March, 2004, when she learned of the respondent's new address. Charles also stated that the respondent recently had left her employment and was, at the time of the hearing, unemployed. Finally, she testified that the children were ambivalent about returning to the custody of the respondent. The court judicially noticed two social studies that were contained in the court file. The first study, dated April 4,2003, indicated that the respondent had fulfilled the majority of the steps that had been ordered by the court on August 16, 2000. She had submitted to the department's home visits, kept her whereabouts known to the department, consistently visited the children, refrained from substance abuse and involvement with the criminal justice system, and maintained employ ment. The only step that she had not completed at the time of that social study related to the housing issue, namely, obtaining a larger apartment. The April 4, 2003 study indicated that both of the children were doing well in their foster home, had bonded with the foster parents and were doing well in school. The foster parents appeared to be committed to caring for the children. Although the children indicated a desire ultimately to return to the respondent's home, nevertheless, the study indicated that the appropriate permanency plan for the children was to remain in long-term foster care. The study concluded that the respondent had made little or no effort to reunify with her children and that the children had bonded with the foster parents and did not want to be separated from their older sibling, who also lived with them in foster care. Finally, the April 4, 2003 study stated that despite the children's interest in reunifying with the respondent, they wanted to remain with their foster parents at that time. The second social study, dated February 23, 2004, stated that the children had adjusted "very well" to their surroundings and were "very bonded" to the foster parents, who remained "very invested" in their caring. Both children continued to do well in school and had accepted the fact that reunification with the respondent was no longer the case goal. According to that study, the respondent had not taken advantage of department services, but did maintain the weekly visits with the children. The second study concluded that long-term foster care remained in the best interests of the children. The court, in its decision, clearly credited the social studies, as well as certain aspects of the testimony of the witnesses. The court also appeared to credit the evidence concerning the respondent's indifference about reunifying with the children. For example, she did not seek to increase the frequency or duration of the visits, and it took her a significant amount of time to obtain a larger apartment, which was inadequately furnished. Although the respondent did complete Genser's parenting class, there was no evidence that she sought individual counseling to help with her depression. Furthermore, she recently had become unemployed. In short, the court found, on the basis of all the evidence, that the commissioner had proved that it remained in the children's best interests to be committed to the custody of the foster parents. "[G]reat weight is given to the judgment of the trial court because of [the court's] opportunity to observe the parties and the evidence. . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court's ruling. . . . [Additionally, we] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on reliable evidence." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 397-98, 852 A.2d 643 (2004). As our recitation and review of the evidence before the court indicates, there were ample facts on which it could find that it was in the best interests of the children to remain in foster care. Mindful of our limited standard of review, we conclude that the trial court's decision that continued commit ment was in the children's best interests was not in abuse of that court's discretion. The judgment is affirmed. In this opinion the other judges concurred. Only two of the respondent mother's children, P and W, are the subjects of this appeal. The foster parents are related to the children and also care for one of the children's older siblings. The court later speculated that the housing issue may have been only "the starting point" before Judge Dannehy and that other issues may have had to be resolved before the commitment could be revoked. The court's oral decision provided in relevant part: "Big thing in this matter that I see is that the parents, and I asked these questions, I think, of a couple of people who came out here, and I am trying to look for it, what did the parents do to generate interest in [the department] to have these children back in their home? When did they pick up the phone and say when am I getting my children back? When can they come back? I do not have any evidence of that at all. It was all a stand, wait and see. Who's doing it for type of thing, and I think that is the attitude. Nothing is being done for me. I do not need to do anything myself. I am waiting for somebody to do something for me, and I think this borne out tremendously in a situation with the housing, the two bedrooms and one piece of furniture in the house. I think that is borne out. What are you — what have you done for yourself lately to get these children back?" Subsequent to filing her appeal, the respondent filed a motion for an articulation of tire court's order, which was denied. This court granted her motion for review and ordered the trial court to articulate the "other issues" mentioned in its oral decision and how those "other issues" may have affected the decision. In response, the trial court submitted the following: "To the best of my recollection, as reflected in the record, these 'other issues' included the testimony that the children have been in foster care since March 10, 2000, and are bonded to each other, including their older sibling, N, who also lives in the same foster home. Additionally, both P and W have adjusted well to their surroundings and are now very bonded to their foster home as well. "At the time of the filing of the petitions [for neglect], their basic needs, including medical, education and their living conditions, were not being met. Both parents were given time from March 10, 2000, until September 30, 2003, to comply with the specific steps ordered by the court in order for them to be reunified with the children; however, on September 3, 2003, a finding was made by the court that reunification was no longer appropriate by clear and convincing evidence. This finding was also considered in the overall ruling of the case as it relates to 'other issues.' " The court file does not set forth details as to the reasons for the original commitment. We are presented with a situation in which both the respondent and the commissioner have presented pertinent and germane evidence and argument regarding whether a cause for commitment remained. It is not for this court, however, to make the initial finding as to whether the respondent, as the party moving to revoke the commitment, carried her burden of establishing that no cause for the commitment remains. It is our function to review, under a deferential standard, the decision of the trial court, which had the opportunity to observe firsthand the credibility and demeanor of the witnesses. See, e.g., In re Thomas L., supra, 4 Conn. App. 57-58. The ordinary and preferred course of action would be for the trial court first to identify the basis for its factual finding with respect to the issue of whether a cause for commitment exists. Only if it finds that the party seeking the revocation of the commitment has proven that no cause for commitment exists should the court then proceed to the second prong concerning the best interests of the children. Particularly in cases involving the care and custody of children, it is incumbent on the trial courts to provide a decision, whether written or oral, that includes all of the necessary factual findings for the benefit of the parties, as well as for proper appellate review. Dysthymia is defined a " [a] chronic mood disorder manifested as depression for most of the day, more days than not, accompanied by some of the following symptoms: poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration, difficulty making decisions, and feelings of hopelessness." T. Stedman, Medical Dictionary (27th Ed. 2000) p. 556. Genser diagnosed the respondent on the basis of his interactions with her. According to the social study, the respondent indicated that she had not taken any steps in an effort to obtain a larger apartment. Although the respondent had observed a sign advertising an apartment for rent on her way to work, she had not taken any further steps, such as obtaining a telephone number to contact the landlord or to inspect the apartment

Opinion DRANGINIS, J. The defendant, Vincente G. Morocho, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-70 (a) (1), and burglary in the second degree in violation of General Statutes § 53a-102 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support the conviction of (a) attempt to commit sexual assault in the first degree and (b) burglary in the second degree, and (2) the court abused its discretion by (a) permitting the victim to testify as to her perception of what the defendant tried to do to her and (b) limiting his cross-examination of the victim. We disagree and therefore affirm the judgment of the trial court. The jury reasonably could have found the following facts. In September, 2001, the victim moved into a two bedroom, basement apartment in Stamford that was leased to Cumanda Segarra and her husband, the defendant. The victim was acquainted with Segarra through their place of employment. The victim paid the couple $350 in rent monthly. The victim slept in one bedroom, and the defendant slept with his wife in the other. In January, 2002, the defendant and Segarra moved to a second and third floor apartment in the building because the basement apartment violated the building code. At the time of the move, the victim arranged with the landlord to lease directly from him the bedroom she had been using for $300 a month, as long as she did not use the kitchen. The victim intended to rent the bedroom until March, 2002, when she expected her boyfriend to move to Stamford, where the two of them would rent a larger apartment. Although the defendant and Segarra had moved out of the basement, they retained a key and had the landlord's permission to enter the basement. Segarra visited the victim in the basement, as they remained on friendly terms. On the evening of February 2, 2002, at approximately 8 p.m., the defendant took Segarra to the home of a friend and went to a social club where he met several of his friends, played pool and cards and consumed beer. At about 2 a.m., the defendant and one of his friends, Gilbert Aladivar, called for Segarra, and the three of them returned to the second and third floor apartment. The defendant brought a case of beer with him. While Segarra went to sleep on the third floor, the defendant and Aladivar sat drinking beer at the kitchen table on the second floor. Segarra returned to the kitchen twice. She came down at 3:30 a.m. to advise the defendant and Aladivar not to make noise because people were sleeping in the building. She came down again at 5 a.m. and found Aladivar sleeping and the defendant drinking beer. Segarra invited Aladivar to sleep in the basement, but he elected to go home. Segarra told her husband to go to bed because it was too early to be drinking. The defendant took the case of beer, however, and went downstairs. Shortly thereafter, the victim appeared in Segarra's apartment. Segarra then went down to the basement and saw the defendant standing there with a bottle of beer. On the night in question, the victim, after visiting with family, retired at about midnight, after locking the front and rear doors to the basement apartment and closing the door to her bedroom, which did not lock from the inside. At approximately 5:30 a.m., the victim was awakened by the smell of cigarette smoke. She looked up and saw a black shadow in the doorway. She raised herself and asked the person to identify himself. She asked the question repeatedly. The person, a man, did not answer. According to the victim, the man "charged" toward her and attempted to kiss her and take away her blanket. The man got on top of her while she was in her bed. The two were tugging at the blanket, and the victim kicked the man and pulled his hair. She smelled alcohol on the man. The man tried to touch her all over her body. The victim eventually broke away and turned on a light. The victim then looked at the man who was lying on her bed and recognized him as being the defendant. The defendant was laughing, but the victim was angry because of the defendant's behavior and the fact that the two of them were acquainted. The victim then insulted the defendant, took her telephone and left the bedroom. She went into the kitchen and telephoned her male cousin. Then she went upstairs to Segarra and told her what had happened. Segarra, in response, went downstairs to look for the defendant. The victim went outside to wait for her cousin. When the victim's cousin arrived, she told him what had happened, and the two of them went to look for the defendant and Segarra. The four encountered one another in a hallway. The defendant behaved aggressively and asked the victim, "Did I make love to you? Did I make love to you? You fucking bitch. What did I do? What did I do?" The victim insulted the defendant. The defendant and Segarra went to their apartment, and the victim and her cousin entered her bedroom. The victim telephoned the landlord, and her cousin telephoned the victim's brother. At that point, the victim noticed a bottle of beer on the floor and cigarette ashes in the kitchen sink. When the victim's brother arrived, the victim informed him of the circumstances. Her cousin and brother went upstairs and confronted the defendant. The victim thereafter heard a commotion and went upstairs to discover her brother bleeding and lying on the floor. The defendant and the victim's cousin were being restrained by others who had responded to the commotion. The victim and her relatives retreated to the basement and telephoned the police. The victim gave a statement to the police officers who had responded to the scene. Additional facts will be set forth as necessary. I The defendant claims that there is insufficient evidence to support the conviction of attempt to commit sexual assault in the first degree and burglary in the second degree. We do not agree. "The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 270, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). "In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference." State v. Conde, 67 Conn. App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). "[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Citation omitted; internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 629, 835 A.2d 895 (2003). A The defendant's first claim of insufficient evidence concerns his conviction of attempt to commit sexual assault in the first degree in violation of § 53a-49 (a) (2) and 53a-70 (a) (l). More specifically, the defendant contends that his behavior, as he characterizes it, before he stopped and laughed, was insufficient to prove beyond a reasonable doubt that he acted with the specific intent to use physical force to compel the victim to engage in sexual intercourse rather than, for example, the less culpable and uncharged crime of intent to subject her to sexual contact. He also claims that the evidence produced by the state was insufficient to prove that he had taken a substantial step that was strongly corroborative of the required mental state pursuant to § 53a-49 (b). The defendant's claim lacks merit. To convict a defendant of attempt to commit sexual assault in the first degree, "the state must have proven beyond a reasonable doubt that the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse . . . and that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Milardo, 224 Conn. 397, 403, 618 A.2d 1347 (1993). The defendant relies on Milardo to support his claim of insufficient evidence as to his intent to have sexual intercourse with the victim. In Milardo, the defendant entered the house where the victim, a college student, resided with others. Id., 401. The victim was in her bed when the defendant opened the door and inquired as to the whereabouts of one of the victim's housemates. Id. When he learned that no one else was at home, he went to the victim's bed, pulled off the covers, lay on top of her, put his hands under her clothing and touched her breasts and vagina. Id., 404. The sexual assault was ended when one of the victim's friends came home, heard the victim's muffled screams and entered the bedroom. Id., 401. Our Supreme Court concluded that the jury reasonably could have inferred that the defendant intended to have sexual intercourse with the victim. Id., 405. The defendant argues that the facts of Milardo are distinguishable from those at issue here and that there was insufficient evidence to permit the jury to infer without speculating that he intended to have sexual intercourse with the victim, rather than mere sexual contact. He distinguishes Milardo factually because unlike the defendant in that case, he did not put his hands under the victim's nightclothes or touch her vagina. The victim in this case testified, however, that the defendant tried to hold her hands, attempted to kiss her and touch her all over her body. Second, we know of no law, and the defendant has not cited any, that the intent to have sexual intercourse is determined by whether the assailant reaches under the victim's clothing. We agree that the facts of the two cases are different but conclude that the distinction does not alter the outcome. The sexual assault in Milardo ceased when the victim's friend entered the room and interrupted it. Here, the victim fought off the defendant by kicking, scratching and pulling his hair. She interrupted the defendant's sexual assault by breaking free of him. In both Milardo and this case, the sexual assaults were ended, not by the perpetrator who ceased his advances of his own accord, but by a force external to him. "Intent may be inferred from the conduct of the accused. . . . The intent of the actor is an issue to be determined by the trier of fact. . . . Likewise, what constitutes a substantial step in any given case is a matter of degree and a question of fact for the jury. . . . The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted." (Citations omitted; internal quotation marks omitted.) Id., 403-404. In this case, the jury heard evidence that the defendant refused to identify himself to the victim when she asked who was standing at the door of her darkened room at 5 a.m. The defendant "charged" toward the victim, attempted to remove her blanket, to hold her hands and to touch her all over her body. He also tried to kiss her. The jury reasonably could have found, on the basis of the evidence, that the defendant intended to compel the victim to engage in sexual intercourse if she had not been able to fight him off. The jury also reasonably could have found that the defendant had taken a substantial step toward the commission of the crime of sexual assault in the first degree and that that specific step evinced his specific intent to commit that crime. As our Supreme Court stated in Milardo, "even if a jury could infer from a given set of facts that a defendant might have intended to commit a crime other than that charged, the jury is not precluded from reasonably finding that he intended to commit the crime with which he was charged." State v. Milardo, supra, 224 Conn. 405. That statement addresses the defendant's claim that there was insufficient evidence for the jury to find that he intended to commit sexual assault in the first degree rather than just to have sexual contact with the victim. "Because not every person who commits sexual assault has intercourse as their ultimate objective, the legislature in the penal code has distinguished between sexual assault with sexual intercourse as its goal and sexual assault with sexual contact as its goal." Id. Even though the jury could have found that the defendant had intended to compel only sexual contact, the jury could also reasonably have inferred that the defendant intended to compel the victim to engage in sexual intercourse. See id. We also disagree with the defendant's argument that there was insufficient evidence to prove that he had taken a substantial step that was strongly corroborative of the mental state to have sexual intercourse with the victim. "To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose. . . . This standard focuses on what the actor has already done and not what remains to be done." (Citation omitted; internal quotation marks omitted.) State v. Hanks, 39 Conn. App. 333, 341, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995). "The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime . . . ." (Internal quotation marks omitted.) State v. Osborn, 41 Conn. App. 287, 294, 676 A.2d 399 (1996). We conclude, on the basis of the evidence, that it was well within reason for the jury to conclude that the defendant intended to have sexual intercourse with the victim. The jury reasonably may have inferred, on the basis of its everyday experience and the evidence presented, that by entering the victim's bedroom and lying on top of her while attempting to kiss her and touch her all over her body, the defendant took a substantial step in a line of conduct that would culminate in sexual intercourse. See State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989) ("trier may rely on its common sense, experience and knowledge of human nature in deciding among conflicting inferences that logically and reasonably flow from the same basic fact"), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990). For the foregoing reasons, we conclude that there was sufficient evidence for the jury reasonably to find that the defendant intended to engage in sexual intercourse with the victim and that he took a substantial step toward the commission of that crime. B The defendant also claims that there was insufficient evidence to convict him of burglary in the second degree in violation of § 53a-102 (a) (l). In particular, the defendant contends that there was insufficient evidence to prove beyond a reasonable doubt that he unlawfully entered or that he unlawfully remained in the victim's bedroom because the state failed to prove that he was not licensed or privileged to enter or remain in the basement. The defendant's claim fails regardless of whether he had a license to enter the basement because under no circumstances did he have the right to enter or remain in the victim's bedroom to commit a crime. The substitute information dated October 23, 2002, alleges in the second count: "AND SAID STATE'S ATTORNEY FURTHER ACCUSES the [defendant] with the crime of BURGLARY IN THE SECOND DEGREE and charges that at the City of Stamford on or about the 2nd day of February, 2002, the [defendant] did enter and remain unlawfully in the building of [the victim] at night with intent to commit a crime therein, in violation of Section 53a-102 (a) of the Connecticut General Statutes." It is not disputed that the defendant and Segarra leased the basement apartment until a building code violation required them to move to the second and third floor apartment and that they retained a key to the basement apartment. It also is undisputed that after the defendant moved upstairs, the landlord leased to the victim the bedroom in the basement that she formerly had rented from the defendant and Segarra. On the night in question, the victim locked the doors to the basement apartment and closed the door to her bedroom. "A person is guilty of burglary in the second degree when such person . . . enters or remains unlawfully in a dwelling at night with intent to commit a crime therein . . . ." General Statutes § 53a-102 (a) (1). General Statutes § 53a-100 (a) provides in relevant part: "(1) . . . Where a building consists of separate units, such as, but not limited to separate apartments . . . or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building; (2) dwelling means a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present . . . ." (Internal quotation marks omitted.) General Statutes § 53a-100 (b) provides in relevant part: "The following definition is applicable to sections 53a-101 to 53a-106, inclusive: A person enters or remains unlawfully in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so." (Internal quotation marks omitted.) The defendant argues that because the landlord permitted him to keep a key and to enter the basement, he had a license to enter it and could not be guilty of having committed burglary by entering a place where he was permitted to be. The state counters that the defendant did not have a license to enter the basement because the landlord had leased the space to the victim. We need not consider whether the defendant had a license to enter the basement, as we resolve his claim on the question of whether he remained unlawfully in the victim's bedroom. "A person enters or remains unlawfully in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so. . A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing an interest therein. . . . Generally, a license to enter premises is revocable at any time by the licensor. . . . It is exercisable only within the scope of the consent given. . . . The phrase licensed or privileged, as used in General Statutes § 53a-100 (b) is meant as a unitary phrase, rather than as a reference to two separate concepts." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). "The original and basic rationale of the crime [of burglary] is the protection against invasion of premises likely to terrorize occupants." (Internal quotation marks omitted.) State v. Russell, 22 Conn. App. 440, 445, 577 A.2d 1107 (1990), rev'd on other grounds, 218 Conn. 273, 588 A.2d 1376 (1991). According to the victim, she was awakened by the smell of cigarette smoke. She saw an unknown person standing in the open doorway to her bedroom. That unknown person, who refused to identify himself, entered the room by "charging" toward the victim and lying on top of her while he attempted to remove the blanket, to touch and to kiss her. The law recognizes that to be awakened in the dark and to see an unknown person standing at the door to one's bedroom may cause terror. Not only did the defendant open the door to the victim's bedroom, but also he failed to identify himself when the victim inquired. When an actor is licensed or privileged to be in a building, "the element of terror is missing and the requirement [for burglary] is not met. This does not mean, however, that an initial lawful entry followed by an unlawful remaining would be excused. For example, A enters an office building during business hours — a lawful entry since the building is open to the public — and remains, perhaps hidden, after the building is closed, with intent to steal. A is guilty of burglary. . . . Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969) pp. 52-53." (Internal quotation marks omitted.) State v. Thomas, 210 Conn. 199, 207-208, 554 A.2d 1048 (1989). In Reyes, this court concluded that an armed man's pointing of a gun implicitly withdrew the consent of an apartment dweller to remain in the residence where the man had been granted permission to enter. State v. Reyes, supra, 19 Conn. App. 190-92. In Allen, our Supreme Court concluded that the consent for the actor to enter a condominium was withdrawn when he saw "the victim naked, gagged, and tied up on the floor, and [saw his accomplice] threaten, strike and choke the victim while the victim, in terror, looked for help, all [of which were clear indications] to the defendant that, even if there were consent for his initially entering the condominium, it had been withdrawn." State v. Allen, supra, 216 Conn. 384. So too, in this case, whatever possible license the defendant thought he had to enter the victim's bedroom, an issue we have not decided, that license was withdrawn when he refused to identify himself, charged toward the victim, lay on top of her and attempted to kiss and to touch her all over her body. See State v. Henry, 90 Conn. App. 714, 726, 881 A.2d 442 ("even if one is lawfully admitted into a premises, the consent of the occupant may be implicitly withdrawn if the entrant terrorizes the occupants"), cert. denied, 276 Conn. 914, 888 A.2d 86 (2005). We conclude, therefore, that there was sufficient evidence for the jury to infer from the facts presented that the defendant remained unlawfully in the victim's bedroom. II The defendant also claims that the court abused its discretion with respect to the evidence by (a) permitting the victim to testify as to her impression of what the defendant was trying to do to her and (b) limiting his cross-examination of the victim. We are not convinced. Our Supreme Court has stated that "[i]t is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. . . . Two lines of cases have developed setting forth the standard for reversing nonconstitu-tional, evidentiary improprieties. Under one line of cases, the defendant must establish, in order to obtain a reversal of his conviction, that it is more probable than not that the result of the trial would have been different if the error had not been committed. . . . According to the second line of cases, the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict. . . . Under either formulation, [w]hether [the improper admission of a witness' testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless." (Citations omitted; internal quotation marks omitted.) State v. Gonzalez, 272 Conn. 515, 527-28, 864 A.2d 847 (2005). A The defendant's first evidentiary claim is that the court improperly permitted the state to present evidence of the victim's opinion on the ultimate issue, which is a question for the jury to determine. In other words, the defendant claims that the victim improperly was permitted to testily that she thought that the defendant was going to rape her. We do not agree that the court abused its discretion by admitting the testimony. The following facts are related to that claim. On direct examination, the victim explained what transpired when she was struggling with the defendant: "[The Prosecutor]: All right. And as this struggle was happening in the bed, what did you believe this person was attempting to do? "[Defense Counsel]: Objection, Your Honor, as to her belief. "[The Prosecutor]: I think — I claim it, Your Honor. I think it's clearly relevant. He's on the bed with her, there's a struggle. She's able to testify to this. This is happening to her. "The Court: What's the objection? "[Defense Counsel]: Pardon me. "The Court: What's the objection? "[Defense Counsel]: What he was trying to do is a matter of inference the jury could draw from facts that she testifies to. She can't read anyone else's mind. And, her belief is simply not relevant or material. "[The Prosecutor]: I claim it. "The Court: I think the question can be answered in this way: What did it appear to you that this person was trying to do? . . . "[The Victim]: He was trying to rape me. "The Court: All right." The victim also testified that she immediately told Segarra and then her cousin, her brother and the police what the defendant had done to her. The state called the victim's cousin, her brother and two Stamford police officers, George Salazar and Collin Morris, to testify. Both the victim's cousin and her brother testified that she told them that the defendant tried to rape her. Salazar testified that the victim was very upset when he saw her and that the nature of her complaint was of an attempted sexual assault. Morris testified that the victim told him that the defendant committed a sexual attack by entering her bedroom and jumping on her. The defendant did not object to the testimony of the witnesses who reported what the victim had reported to them, i.e., that the defendant had tried to rape her. First, we must determine whether the defendant's claim is reviewable on appeal. The state argues that the claim is not reviewable because the defendant did not object on the grounds of lay opinion or that the testimony would embrace the ultimate question. Our review of the transcript discloses that although the objection was not articulated in terms of lay opinion or the ultimate question, defense counsel objected, stating that the testimony concerned an inference the jury could draw from the facts. The objection was sufficient to inform the court that the defendant was objecting to a question that sought the victim's opinion as to the ultimate question, which was a factual determination for the jury to decide. We disagree, however, that the question to which the victim responded sought her opinion on the ultimate question. We also must determine the standard of review to apply to the defendant's claim. The defendant contends that the abuse of discretion standard does not apply to this evidentiary claim. He argues that § 7-1 and § 7-3 of the Connecticut Code of Evidence prohibit the admission of opinion testimony by lay witnesses and opinion testimony on the ultimate issue, respectively, and therefore the plenary standard of review applies. "Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error." (Internal quotation marks omitted.) State v. Finan, 275 Conn. 60, 65-66, 881 A.2d 187 (2005). "[T]he phrase ultimate issue is not amenable to easy definition. . As a rule, however, [t]estimony is objectionable if it embraces an opinion on the ultimate issue to be decided by the trier of fact. . It is improper for a witness to offer testimony that essentially constitutes a legal opinion about the guilt of the defendant." (Citations omitted; internal quotation marks omitted.) Id., 66. We disagree with the defendant's characterization of the victim's testimony as an opinion on the ultimate question. The court asked the victim to articulate her perception of what the defen dant was doing. The testimony, therefore, was admissible under § 7-1 to clarify her testimony regarding the events that occurred on her bed at 5 a.m. while the defendant was lying on top of her. The testimony explains the victim's motivation to go upstairs to Segarra, telephone her cousin and the landlord, and to tell her brother what had transpired. It also explains why she insulted the defendant. We conclude, therefore, that the court did not abuse its discretion by permitting the state to elicit testimony from the victim as to her perception of what the defendant was trying to do. Even if we had concluded that the court abused its discretion by admitting the victim's testimony, the evidence was cumulative and therefore harmless. The victim's cousin and her brother testified that shortly after the incident, the victim told them that the defendant had tried to rape her. The police officers described the nature of the victim's complaint as a sexual assault. The defendant did not object to their testimony. Before the victim's cousin, her brother and the police officers could testify as to the victim's report of sexual assault, it was necessary for the victim to testify as to the facts of the assault and the identity of the person or persons to whom she reported the incident. See State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc). Furthermore, "[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony." (Internal quotation marks omitted.) State v. Gonzalez, supra, 272 Conn. 528-29; see also State v. Cummings, 91 Conn. App. 735, 746, 883 A.2d 803, cert. denied, 276 Conn. 923, 888 A.2d 90 (2005); State v. Rodriguez, 91 Conn. App. 112, 122, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005). For the foregoing reasons, the defendant's claim fails. B The defendant's second evidentiary claim is that the court deprived him of the right to confront the victim as to her bias and motive for making the type and degree of complaint she made. Specifically, the defendant claims that the court abused its discretion by sustaining the state's objection to his cross-examination of the victim with respect to her estrangement from the man who was the father of her children, her feelings toward male infidelity in a committed relationship and the impact the underlying facts had on the estrangement. We disagree with the claim. The following facts are relevant to our review of the defendant's claim. At the time the victim moved into the apartment, she was not married, but she subsequently married. On cross-examination, defense counsel asked the victim whether there were problems in September, 2001, between the victim and the man who now is her husband. The state objected to the question on the ground of relevance. The court first excused the jury, then listened to the defendant's offer of proof and later sustained the state's objection. On appeal, the defendant argues that pursuant to the federal constitution, he is "entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness' motivation in testifying. . . . Cross- examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." (Citations omitted; internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 745-46, 657 A.2d 611 (1995). We are, however, mindful that "[t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable." (Citations omitted; internal quotation marks omitted.) Id., 746. "Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . [I]t is entirely proper for a court to deny a request to present certain testimony that will further nothing more than a fishing expedition . or result in a wild goose chase." (Citation omitted; internal quotation marks omitted.) State v. Grant, 89 Conn. App. 635, 647, 874 A.2d 330, cert. denied, 275 Conn. 903, 882 A.2d 678 (2005). Here, defense counsel sought to elicit testimony from the victim as to the status of her relationship with the father of her children because it might have demonstrated that she had overreacted to the defendant's entering her room, lying on top of her, and attempting to kiss her and touch her all over her body. We agree with the court that such evidence was speculative and remote as to the issues in the case. The offer of proof was premised on hearsay from Segarra, the defendant's wife. It is far too speculative to assume that the jury would infer from the fact that the victim was estranged from her now husband that her almost immediate reporting of the incident to her cousin and to Segarra was the product of the victim's desire to reunite with the father of her children or her belief that he would rescue her from the plight of living in the basement. The judgment is affirmed. In this opinion the other judges concurred. A number of witnesses, including the victim, testified with the aid of a foreign language interpreter. In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e. At the time of trial, the victim had married her boyfriend. See part IIB. The victim stated to the defendant: "Bastard. You're not a man." General Statutes § 53a-49 provides in relevant part: "(a) A person is guilty of attempt to commit a crime il', acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. "(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) . . . unless it is strongly corroborative of the actor's criminal purpose. . . General Statutes § 53a-70 (a) provides in relevant part: "A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical iryury to such person or a third person . . . The defendant also argued that there was insufficient evidence to prove that he had the noncriminal intent of drunkenly trying to kiss or to seduce the victim. General Statutes § 53a-102 (a) provides in relevant part: "A person is guilty of burglary in the second degree when such person (1) enters or remains unlawfully in a dwelling at night with intent to commit a crime therein . . . The defendant concedes that the incident occurred in a dwelling and at night. The landlord also testified on behalf of the defendant that he had given him permission to continue to enter the basement. Neither the defendant nor the state addressed the question of whether the victim's bedroom was a separate unit within the basement apartment. See General Statutes § 53a-100; State v. Cochran, 191 Conn. 180, 185, 463 A.2d 618 (1983) (guest's invitation to private home did not extend to locked bedrooms). Connecticut Code of Evidence § 7-1 provides: "If a witness is not testilying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." (Emphasis added.) Connecticut Code of Evidence § 7-3 (a) provides in relevant part: "Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue." As a matter of contrast, the state noted in its brief that if the prosecutor had asked the victim what the defendant intended to do, that evidence would not have been admissible, as it is not possible to know another person's intent. We note that the defendant does not deny that he lay on top of the victim. He only challenges the jury's inference of his mental state at the time, i.e., what he intended to do. The following colloquy transpired with respect to the objection: "The Court: Okay. And there's a relevancy objection. What's the claim on it? "[Defense Counsel]: Your Honor, my understanding is that [the victim] came to live with my client because she and her husband were having difficulties. He had left to go to Indiana because they were having some problems that were long-standing. I don't think we need to go into that, the reasons. But I think that her emotional condition and reaction to men— and in fact, I believe that's her husband seated there, although I may be wrong. I'm sure it's not a witness seated in the courtroom — may influence and color her testimony. "[The Prosecutor]: I think it's just completely speculative. Because she's having some sort of problem with her current boyfriend that therefore that has some relevancy . . . "The Court: Her current husband. "[The Prosecutor]: . . . which turns out to be her current husband that somehow that would indicate that she fabricated this incident. I think it would just invite speculation. It has absolutely no relevancy. "The Court: All right. "[The Prosecutor]: Especially where counsel doesn't even plan on delving into the reason for the problem. "The Court: All right. Do you still claim it? "[Defense Counsel]: Your Honor, I'm not suggesting that the reason is necessary. My understanding from my client's wife, as to the basis of their difficulty was that it was — had to do with issues of infidelity and that these are issues that [the victim] is concerned with. And, also, accusing my client of such a thing with her best friend — with her best friend's husband, I think, provides a context. "In addition to that, Your Honor, it wasn't just a boyfriend who later became her husband. My understanding is that they had a long-standing relationship and that they have children together, approximately age fourteen or thereabouts. I may be wrong about the age of the children. So, this was not a fly-by-night situation that later became solidified into a marriage. It was a disturbing and very sad time for [the victim]. "The Court: Okay. I just fail to see how her relationship with her then boyfriend, now husband, whether or not they had any problems, notwithstanding you're not going to ask what they were, how that is relevant at all. I'm going to sustain the objection. "[The Prosecutor]: Thank you. "[Defense Counsel]: Your Honor, I would just put one more thing on the record, which is the 'Pauline in peril syndrome,' needing to be rescued. "[The Prosecutor]: Excuse me. "The Court: The what? . . . "[Defense Counsel]: On the train tracks. I guess I'm dating myself. But in any event, Your Honor, that the level of reaction and the fact that she was then able to resume her relationship with her husband very shortly thereafter as a result of her needing his guidance and protection is a motive for her, perhaps, viewing the situation in more dire circumstances than necessary. . . . "The Court: I think it's irrelevant and speculative based upon the record before me. I'm sorry." Furthermore, defense counsel represented to the court that she would not delve into the reasons for the victim's estrangement from her now husband. That representation is illogical given the defense offer of proof that infidelity was an issue for the victim. Without testimony concerning the reason for the estrangement, there could be no nexus to the motivation assumed by defense counsel, i.e., the victim fabricated the incident due to her husband's infidelity. See footnote 16.

Opinion HARPER, J. This appeal arises out of a dissolution of marriage action between the plaintiff, Stephanie M. Adams, and the defendant, Bobbie L. Adams. The defendant challenges the trial court's judgment that, among other things, dissolved the marriage and divided the parties' marital assets. The defendant also challenges the court's rulings on two postjudgment motions for contempt. The defendant claims that (1) the court improperly denied his motion for a change of venue, (2) several of the court's factual findings were unsupported by the evidence, (3) the court deprived him of his right to counsel during a hearing on a postjudgment motion for contempt, (4) the court improperly ruled in the plaintiffs favor on the plaintiffs motion for contempt and (5) the court improperly ruled in the plaintiffs favor on the defendant's motion for contempt. We affirm the judgment of the trial court. The parties were married in January, 2001, and there are no minor children issue of the marriage. In August, 2003, the plaintiff commenced an action seeking dissolution of the marriage. Both parties agreed that the marriage should be dissolved on the ground of irretrievable breakdown and asked the court for an equitable division of the marital assets. The court held an eviden-tiary hearing and, in November, 2004, rendered judgment dissolving the parties' marriage and distributing the marital assets. Additional relevant facts and procedural history will be set forth as necessary. I The defendant first claims that the court improperly denied his motion for a change of venue. The record is inadequate to review his claim. The plaintiff brought the present action in the Superior Court in the judicial district of New London. The record reflects that on October 7, 2004, the defendant filed a motion for a change of venue. The defendant asserted therein that "[t]he matter and judges involved in this case are part of a civil rights complaint in federal court . . . ." The defendant further asserted that "the judges involved in this matter have been so bias[ed] and racially and sexually prejudiced to his interest that a fair trial by an impartial and unprejudiced judge cannot be had in New London County." The record reflects that on October 7, 2004, the court asked the defendant if he wanted to be heard on his motion. The defendant declined the invitation to address the court with regard to his motion, except to inform the court that he had learned that the court had denied the motion. The court informed the defendant that the motion was denied. The defendant argues on appeal that the court's denial of his motion was improper because it reflects "racial discrimination" against him. The defendant apparently argues that the court's subsequent factual findings in its memorandum of decision reflect this discrimination. "Any cause, or the trial of any issue therein, may be transferred from a judicial district court location to any other judicial district court location . by order of a judicial authority . . . upon its own motion or upon the granting of a motion of any of the parties . . . ." Practice Book § 12-1; see also General Statutes § 51-347a (a) (transfer of civil jury causes). In the context of criminal actions, a defendant requesting a change of venue bears the burden of showing that, absent a change in venue, he could not receive a fair and impartial trial. State v. Reynolds, 264 Conn. 1, 222, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). A trial court exercises broad discretion in considering such a motion, but appellate review of the denial of a motion for a change of venue requires an independent review of all of the circumstances on which the motion was based. State v. Vitale, 190 Conn. 219, 227, 460 A.2d 961 (1983). Those principles apply, with at least equal force, to the defendant's request for a change of venue in his divorce proceeding. The defendant's motion for a change of venue set forth a wholly unsupported accusation against the judiciary of the judicial district of New London. The defendant's motion was based on his bare assertion that he could not receive a fair and impartial trial before a judge in the judicial district of New London. When afforded an opportunity to be heard on his motion, the defendant declined to address the court. The court was not pro vided with evidence in support of the motion, nor was it asked to make any findings of fact in support of the motion. Accordingly, the record is inadequate to review his claim. II The defendant also challenges nine of the factual findings set forth in the court's memorandum of decision. For the most part, these findings are related to the financial circumstances of the parties before and during their marriage. "As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Berry v. Berry, 88 Conn. App. 674, 679, 870 A.2d 1161 (2005). We have reviewed each of the factual issues raised by the defendant. It would serve no useful purpose for us to recite them here. We are convinced that these issues merely reflect the defendant's dissatisfaction with the fact that the court did not accept as true his testimony and interpretation of the evidence. "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). The evidence as well as the rational inferences drawn therefrom amply support the findings challenged by the defendant. Ill The defendant next claims that the court deprived him of his right to counsel during a hearing on a post-judgment motion for contempt. We disagree. On January31,2005, the plaintiff filed a postjudgment motion for contempt against the defendant. The plaintiff alleged that the defendant had violated one of the dissolution orders in that he failed to pay loan payments and applicable taxes on an automobile that was transferred to him in the dissolution action. On February 22, 2005, the court appointed attorney Robert W. Clark to represent the defendant with regard to this motion. On March 21, 2005, the court conducted a hearing on the plaintiffs motion for contempt, as well as on a motion for contempt filed by the defendant. Clark represented the defendant at the hearing. During Clark's examination of the defendant, the defendant indicated that Clark was not representing him because Clark was "interrogating [him] for [the plaintiff's] lawyer" and had proposed a settlement of the dispute that the defendant found to be unacceptable. The court informed the defendant that it would hear his complaints at a later time. At the conclusion of the hearing, the court granted the plaintiffs motion for contempt and denied the defendant's motion for contempt. The court also noted that Clark had filed a motion to withdraw on February 25, 2005. Clark represented in his motion that during his representation of the defendant with regard to the plaintiffs motion for contempt, the defendant had expressed his dissatisfaction with Clark, made derogatory remarks to Clark and indicated that he did not want Clark to represent him. The court informed the defendant that Clark's representation was important to protect his rights, especially because the court could impose a sentence of incarceration. At the conclusion of the hearing on the contempt motions, the court granted Clark's motion to withdraw. The defendant claims that the court deprived him of representation at the hearing. The defendant apparently bases his claim on the fact that at the conclusion of the hearing, the court granted Clark's motion to withdraw. Despite the defendant's complaints concerning Clark, there is no record that Clark's representation was deficient in any manner. That issue is not before us. To the extent that the defendant claims that the court, to any degree, deprived him of representation at the hearing on the plaintiffs motion for contempt, the claim finds no support in the record. The record reflects that at the court's insistence, the defendant was represented at the hearing. Accordingly, his claim fails. IV The defendant next claims that the court improperly ruled in the plaintiffs favor on the plaintiffs motion for contempt. We disagree. As stated previously, the court granted the plaintiffs postjudgment motion for contempt. The court awarded the plaintiff $1524.58 in damages and $250 in attorney's fees. In its dissolution orders, the court had ordered the plaintiff to transfer ownership of an automobile to the defendant and had ordered the defendant to "be responsible for any debt associated with said automobile, as well as insurance and property taxes on said automobile . . . ." At the hearing on the plaintiffs motion for contempt, the plaintiffs attorney represented that after the court's dissolution orders were rendered, the plaintiff paid the remaining loan pay ments, totaling $1524.58, for the automobile. The plaintiffs attorney also represented that prior to the hearing, the plaintiff had been willing to agree to waive her right to receive payment from the defendant if the defendant merely would remove the automobile from the plaintiffs property. The plaintiffs attorney represented that the plaintiff was seeking reimbursement of the $1524.58 that she paid for the automobile. The defendant testified at the hearing that he had, in fact, been unwilling to take possession of the automobile for a variety of reasons. He testified that he did not comply with the court's order to make the payments at issue because he disagreed that he should pay any debts or taxes associated with the automobile. The court found that the defendant violated a clear court order by failing to make the payments as required. A finding of contempt implicates the court's fact-finding authority as well as its discretion. Kennedy v. Kennedy, 88 Conn. App. 442, 443, 869 A.2d 1252, cert. denied, 275 Conn. 902, 882 A.2d 671 (2005). The court's finding of contempt and its award of damages are supported by the evidence and reflect a sound exercise of discretion. The fact that the plaintiff offered to settle the dispute that formed the basis of her motion for contempt did not deprive the plaintiff thereafter of her right to enforce the court's dissolution order and to seek any damages to which she was entitled as a result of the defendant's conduct. V Finally, the defendant claims that the court improperly ruled in the plaintiffs favor on his motion for contempt. We disagree. On January 20, 2005, the defendant filed a postjudgment motion for contempt against the plaintiff. The defendant represented that the plaintiff had failed to comply with one of the dissolution orders in that she failed to transfer ownership of an automobile to him. One of the court's dissolution orders required the plaintiff to transfer "any and all right, title and interest" in a certain automobile to the defendant. At the hearing on the defendant's motion, the plaintiffs attorney represented that the plaintiff repeatedly had attempted to transfer possession of the automobile to the defendant, but that the defendant was uncooperative or unwilling to take possession of the automobile, which was parked on the plaintiffs property. The plaintiffs attorney further represented that the plaintiff was prepared to deliver the title to the automobile to the defendant and that the plaintiff had indicated to the defendant that she was willing to bear the burden of having the automobile towed to the defendant's property, if the defendant so desired. In his testimony at the hearing, the defendant did not contradict these representations. The defendant testified that he had rejected the plaintiffs attempts to deliver the automobile to him and that he would take possession of the automobile only if it was in proper working condition. The court thereafter denied the defendant's motion for contempt and ordered the plaintiff to have the automobile towed to the defendant's residence. "A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order. To constitute contempt, a party's conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Id., 443-44. The evidence before the court established that the defendant prevented the plaintiff from complying with the court's dissolution order; the plaintiff did not disobey the court's order wilfully, but made reasonable efforts to comply with it. On this record, we do not conclude that the court's denial of the defendant's motion reflected an abuse of discretion. The judgment is affirmed. In this opinion the other judges concurred. In this appeal, the defendant appears pro se. The defendant attached to his motion a photocopy of a complaint that, according to the defendant, he filed in the United States District Court for the District of Connecticut. Among the defendants allegedly named in that action, based on the claimed deprivation of the defendant's civil rights, were two judges of the Superior Court, Domnarski, J., and Hadden, J. The record reflects that prior to October 7, 2004, both Judge Domnarski and Judge Hadden had issued rulings adverse to the defendant in pretrial matters related to this case.

Opinion BERDON, J. The plaintiff, Robert E. Cushman, appeals from the postjudgment alimony orders of the trial court that stem from the parties' 1999 judgment of dissolution. The plaintiff claims that the court improperly (1) inquired whether there was a substantial change of circumstances instead of conducting a de novo review of the parties' financial circumstances pursuant to General Statutes § 46b-82, as required by the separation agreement that was incorporated into the judgment of dissolution, (2) awarded excessive alimony to the defendant, Lee Cushman, and (3) failed to find that the defendant's living situation met the definition of cohabitation under General Statutes § 46b-86 (b). We disagree and affirm the judgment of the trial court. The relevant facts and procedural history of the plaintiffs appeal are as follows. On October 13, 1999, the parties entered into a separation agreement as part of the dissolution of their thirty-seven year marriage. The separation agreement required the plaintiff to pay the defendant $12,500 in monthly alimony for a period of four years. At the conclusion of the four year period, the parties, pursuant to the separation agreement, were to "take a 'second look' to redetermine" on a de novo basis "the amount of periodic alimony . . . ," That "second look" was to take place prior to September 1, 2003, by which date the parties were to have made a good faith effort to resolve the redetermination of alimony. Following September 1, 2003, the alimony set forth under the four year term was to continue until an agreement between the parties or a court order established a new arrangement. Any new arrangement was then to be retroactive to September 1, 2003. An additional provision of the separation agreement required the plaintiff to maintain a $500,000 life insurance policy with the defendant as beneficiary in order to insure the alimony payments. At the time of the "second look" to review the alimony obligations, the parties were also to redetermine the amount of the life insurance "based on the circumstances at that time." Not having agreed to the redetermined amount of alimony or life insurance, the plaintiff, on August 13, 2003, filed a motion for modification of alimony in which he requested that the October 13, 1999 judgment of dissolution be modified to terminate or reduce his alimony obligation. He claimed that the defendant's significant, independent means of support and her cohabitation with another person warranted the modification of alimony. Beginning September 1, 2003, the plaintiff ceased to make his alimony payments to the defendant and failed to maintain the life insurance policy. On September 9, 2003, the defendant filed a motion for contempt on the ground that the plaintiff had failed to pay alimony and failed to maintain the life insurance in accordance with the 1999 judgment of dissolution. On May 4, 2004, the court, subsequent to a four day hearing, granted the plaintiffs motion for modification and reduced his monthly alimony obligation to $9000 from $12,500, retroactive to September 1, 2003. The court did not find that the defendant's living situation caused a change of circumstances so as to alter the defendant's financial needs under § 46b-86 (b). Further, the court found the plaintiff in wilful contempt for failure to pay alimony and to maintain life insurance pursuant to the dissolution judgment. Accordingly, the plaintiff was ordered to pay the nine month arrearage and $1500 in attorney's fees, in addition to maintaining a $500,000 life insurance policy with the defendant as beneficiary. This appeal followed. Additional facts will be set forth as necessary. I The plaintiff first claims that the court improperly limited its review to whether there was a substantial change of circumstances instead of conducting a de novo review of the parties' financial and other circumstances as of September 1, 2003, pursuant to § 46b-82, as required by the separation agreement. We disagree and conclude that the court conducted a de novo review based on the parties' financial circumstances as of September 1, 2003, pursuant to the criteria enumerated under § 46b-82 for the award of alimony. We first identify our standard of review. The standard of review governing this matter is well settled. "In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties. . . . The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. . . . The scope of review in such cases is plenary." (Citation omitted; internal quotation marks omitted.) Sullivan v. Sullivan, 66 Conn. App. 501, 504, 784 A.2d 1047 (2001). When a modification of alimony is requested on the basis of the separation agreement, the court must look to the agreement. "Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts."Kremenitzer v. Kremenitzer, 81 Conn. App. 135, 139, 838 A.2d 1026 (2004). In the present case, the separation agreement required the parties to take a "second look" at the alimony at the completion of the initial four year term. The "second look" was to be a consideration of the parties' financial circumstances de novo, as if it were an initial determination of alimony, requiring the application of § 46b-82 criteria. Section 46b-82 "set[s] forth the criteria that a trial court must consider when resolving property and alimony disputes in a dissolution of marriage action. The court must consider all of these criteria. . It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding [s] as to each statutory factor. A ritualistic rendition of each and every statutory element would serve no useful purpose. . . . [T]he trial court is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors." (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 670, 862 A.2d 374, cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). It is clear that the court properly looked to the separation agreement and conducted a de novo review. At the start of its oral decision, the court established that the issue was "a de novo look at the issue of alimony . . . ." The court stated that it "consider[ed] the criteria which was set forth in the statutes at § 46b-82 and . § 46b-86 (b), which are the criteria to be considered in the determination of alimony . . . ." The court further affirmed its consideration of the proper criteria when it stated that it had heard evidence concerning "the length of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, state and needs of the parties," which are set forth in § 46b-82 as factors to be considered in alimony determinations. The plaintiff further argues that the court failed to base its decision on the financial circumstances of the parties at the end of the four year period and claims that the court "ignore [d] the provision of . § 46b-82 that the court shall consider the estate of each of the parties." We disagree. The court did not ignore that provision of § 46b-82, but clearly stated that "[although it is a de novo look at the issue of alimony, there are certain things that the court cannot do in this case that would normally occur at the time of the final dissolution of marriage [because of the limitation in the separation agreement]. And one of those is the reallocation of assets. It is quite clear that that takes place at the time of dissolution and is really not to be taken into consideration in any way that will reallocate assets postjudgment. That isn't to say we don't look at assets as they are producing income relating to the issue of alimony, but we may not reconfigure." The court then concluded that "neither party has realized any gain from any assets acquired postjudgment and sold postjudgment." We reiterate that although the court is required to consider all of the criteria under § 46b-82, it need not make explicit findings as to each statutory factor. Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005). We conclude that the court properly considered all of the criteria under § 46b-82, including the parties' holdings, in its evaluation of their financial circumstances. Accordingly, we conclude that the court properly conducted a de novo hearing in refashioning alimony orders. II The plaintiff's second claim is that the court abused its discretion in awarding excessive alimony to the defendant. Specifically, he argues that the court failed to consider his most recent financial affidavit, the affidavit filed on April 28, 2004, rather than the one filed on April 14, 2004, and improperly awarded alimony to the defendant in excess of the plaintiffs net income by failing to take into account the tax consequences of the $3,021,480 signing bonus given to him in 2002 by Salomon Smith Barney in the form of a forgiveness loan amount to be amortized over a seven year period. We do not agree. The standard of review in family matters is well settled. "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. . An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant." (Citations omitted; internal quotation marks omitted.) Quasius v. Quasius, 87 Conn. App. 206, 208, 866 A.2d 606, cert. denied, 274 Conn. 901, 876 A.2d 12 (2005). On April 14, 2004, the plaintiff filed a financial affidavit that stated a gross weekly income from Salomon Smith Barney in the amount of $2646. During the hearing on April 15 and 16, 2004, the plaintiff, when asked whether $2646 was a correct statement of his total income from Salomon Smith Barney, answered that it was correct. The plaintiff further explained that the monthly sum of $2646 was a total that included his commission income and other taxable benefits, with about $2100 attributable to the commission income and about $500 attributable to the taxable benefits. At no time during the testimony regarding his income did the plaintiff state that $2646 was an error that required correction. Nonetheless, on April 28, 2004, the plaintiff filed an updated financial affidavit in which he revised and restated the amount of his gross weekly income from Salomon Smith Barney as $2011. The plaintiff claims that during his cross-examination, his attention was drawn to the error on his financial affidavit and, for that reason, he submitted the April 28,2004 financial affidavit to reflect his correction of the error. At the start of the hearing on April 28, 2004, the plaintiffs counsel reported to the court that the plaintiff "has also reviewed his income year today, and there is a change in that to reflect the actual dollars paid versus the amount of income that he had, including the value of fringe benefits . . . ." The record does not show that there was any further explanation of that change. In his brief, the plaintiff also did not explain why he believed that revision was needed. The plaintiff merely claims that neither the court nor the defendant challenged the submission of the later financial affidavit and that the court should have relied on the later financial affidavit in its calculations. We have, on the one hand, the plaintiffs clear testimony on two different days that $2646 was a correct statement of his total income. On the other hand, we have an unexplained revision of that figure on a financial affidavit submitted after the plaintiffs testimony was given, in addition to a request from the plaintiff in his brief that the court simply accept that unexplained revision. The plaintiff argues that "despite ample opportunity, neither [the defendant] nor the trial court ever challenged [the plaintiffs] submission of the corrected financial affidavit." "It is axiomatic [however] that [t]he trier [of fact] is free to accept or reject, in whole or in part, the evidence offered by either party." (Internal quotation marks omitted.) Olson v. Olson, 71 Conn. App. 826, 833, 804 A.2d 851 (2002). The court did not abuse its discretion when it employed the total income figure in the April 14, 2004 financial affidavit, verified by the plaintiffs testimony during the hearing, in its calculation of the plaintiffs gross income for the purpose of awarding alimony. The plaintiff next argues that alimony was awarded in excess of his net income because of a failure to base the award on net income. More specifically, the plaintiff argues that the court failed to take into consideration the tax consequences of his Salomon Smith Barney loan forgiveness and imputed interest. During the hearing on April 15, 2004, the plaintiff testified that he had received in or about February, 2002, a $3,021,480 signing bonus from Salomon Smith Barney in the form of a forgivable promissory note. Over the course of seven years, the plaintiff annually receives a loan forgiveness of one-seventh of the full amount, or $431,000, that is included in his taxable gross income. Each year, the plaintiff then reports the outstanding balance of the loan as a liability. The plaintiff also explained during his testimony that there is an imputed interest on the loan, which is also included in his gross income. The plaintiff stated on both his financial affidavits and during testimony that $553,411 was the sum of his yearly loan forgiveness and imputed interest from the Salomon Smith Barney signing bonus. We therefore calculate that the yearly imputed interest alone is $122,411, a figure we obtain by subtracting the yearly loan forgiveness amount of $431,000 from $553,411, which is a figure that is the yearly income and the imputed interest combined. Although the plaintiff claims that the court failed to take into consideration the tax consequences of his income from the loan forgiveness and the imputed interest, the court did not consider the imputed interest in its calculation of gross income. If the court had considered the imputed interest income in its calculation of the plaintiffs total income, the plaintiffs total annual income would have been $691,011. The court did not include, however, the imputed income in awarding alimony and only considered the loan forgiveness, which, according to 26 U.S.C. § 61 (12) (discharge of indebtedness income), must be included in gross income. To the $431,000 loan forgiveness income, the court then added the plaintiffs direct earned income as reported on the April 14, 2004 financial affidavit in the amount of $137,000 to arrive at the plaintiffs gross income of $568,000. From that total for the plaintiffs gross income, the court's May 25, 2004 articulation and order delineates how it arrived at a calculation of the plaintiffs net annual income. The court then applied a tax rate of 44 percent and arrived at a net annual income amount of $318,416. Therefore, the alimony award of $108,000 yearly ($9000 monthly), which represents a substantial reduction from the original alimony order of $150,000 yearly ($12,500 monthly), is clearly not in excess of the plaintiffs net income. We therefore conclude that the court did not award excessive alimony to the defendant. There was no abuse of discretion. Ill The plaintiff next claims that the court improperly fashioned new alimony orders by failing to find that the defendant's living situation met the definition of cohabitation under § 46b-86 (b). We disagree. "Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Section 46b-86 (b), which is commonly known as the cohabitation statute, provides: "In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspen sion, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party." In other words, "[i]n accordance with General Statutes § 46b-86 (b) and the holding in DeMaria v. DeMaria, 247 Conn. 715, 722, 724 A.2d 1088 (1999)], before the payment of alimony can be modified or terminated, two requirements must be established. First, it must be shown that the party receiving the alimony is cohabitating with another individual. If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation." DiStefano v. DiStefano, 67 Conn. App. 628, 633, 787 A.2d 675 (2002). Although the court did not make a specific finding as to the first prong requiring cohabitation, it did address the second prong requiring a change of financial circumstances. As to the second prong, it is the plaintiffs burden to prove that the defendant's living arrangements caused a change of circumstances so as to alter the defendant's financial needs. See id., 632-33. In DiStefano, this court held that "the nonmarital union must be one with attendant financial consequences before the hearing court may alter an award of alimony." (Internal quotation marks omitted.) Id., 633. The plaintiff did not show to the satisfaction of the court that the living arrangement of the defendant caused a change of circumstances so as to alter her financial needs. The court stated that "in this case the court feels that the examination of [the defendant] was intensive, and the court finds credible her testimony with regard to her relationship with [another individual] and the financial arrangements that they have. However, she may disingenuously characterize those financial arrangements. Nevertheless, the court finds that they do not meet the statutory definition of cohabitation." Our examination of the record further demonstrates that there was sufficient evidence before the court to support its conclusion that the defendant's living arrangements had not brought about a change of circumstances so as to alter her financial needs. During a four day hearing, the court heard ample testimony from the defendant regarding her living arrangements. The details of her relationship with the other individual were examined, and her financial affidavit and other financial and property documents were brought before the court for an assessment of the defendant's financial circumstances. We conclude that the court properly determined that the defendant's living situation did not meet the definition of cohabitation under § 46b-86 (b). The judgment is affirmed. In this opinion the other judges concurred. Section 2 A of the separation agreement provides in relevant part: "At the end of the four (4) year period, the parties shall take a 'second look' to redetermine the amount of periodic alimony, which shall be based on the parties' financial circumstances at that time. The 'second look' shall not be a modification determination based on a change in the parties' financial circumstances, but rather a [d]e [n]ovo determination according to the parties' respective financial circumstances at that time." Section 2 B of the separation agreement provides in relevant part: "The alimony sel. forth herein for the four (4) year term shall continue until such time as there is an agreement or court order with respect to the parties' 'second look' or alternate arrangement, at which time the subsequent order or agreement shall be retroactive to September 1, 2003, with the [plaintiff] to receive a credit for any amounts paid pursuant to this paragraph. The parties shall make a good faith effort to resolve the 'second look' issue before September 1, 2003." General Statutes § 46b-82 provides in relevant part: "In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party [and] shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . ." General Statutes § 46b-86 (b) is commonly known as the cohabitation statute. We address the court's application of § 46b-86 (b) in part HI. The April 15, 2004 hearing transcript provides in relevant part: "[The Plaintiffs Counsel]: And your financial disclosure, sir, indicates that for 2004, your total income from Smith Barney including those fringes is roughly $2646 per week. Is that correct? "[The Plaintiff]: Correct. That's correct." The April 16, 2004 hearing transcript provides in relevant part: "[The Plaintiffs Counsel]: . . . That income of $2646 per week is based upon the moneys you've received 2004 year to date? "[The Plaintiff]: Yes. "[The Plaintiffs Counsel]: Does that include commission income? "[The Plaintiff]: Yes. That's — yes. "[The Plaintiffs Counsel]: Does it also include the value to which you are taxed on fringes and other benefits? "[The Plaintiff]: Yes. There is . . . approximately a $500 additional allocation for other Smith Barney benefits that they . . . claim I receive. " [The Plaintiffs Counsel]: Okay. But that's all inclusive of both commission and all your other benefits. "[The Plaintiff]: Yes. The commission number was closer to $2100." Section 61 (12) of title 26 of the United States Code defines gross income to include income from the discharge of indebtedness. The plaintiff testified that "the Internal Revenue Service requires that in conjunction with any loan, somebody is designated to have paid interest and somebody is designated to have received interest. And if the obligation does not carry a designated interest rate, then the arrangement with Smith Barney is that the interest that is imputed to this loan is considered something — a benefit I received." In a footnote on both the April 14 and 28, 2004 financial affidavits, the plaintiff stated: "In 2003 and succeeding years Plaintiff will be taxed on Loan Forgiveness and imputed interest on income of $553,411 which income he did not receive." The following colloquy occurred during direct examination of the plaintiff at the April 15, 2004 hearing: "[The Plaintiffs Counsel]: In addition to that $431,000 on which you are taxed but receive no cash compensation, you're also taxed, are you not, sir, on the amount of the imputed interest? '[The Plaintiff]: Correct. "[The Plainffffs Counsel]: And did you reflect that amount for 2003 on your financial affidavit as $553,411? . . . "[The Plaintiff]: Yes. That's the aggregate amount." The plaintiff testified that his weekly direct earned income was $2646, which is a yearly total of $137,600.

Opinion FLYNN, J. The respondent mother appeals from the judgments of the trial court adjudicating three of her children neglected and committing them to the care, custody and guardianship of the petitioner, the commissioner of the department of children and families (commissioner). The respondent makes several claims on appeal, none of which is renewable because we conclude that the appeal is moot. The facts relevant to the disposition of this appeal are as follows. On October 16, 2003, the commissioner filed neglect petitions on behalf of the respondent's three minor children. On February 27,2004, the commissioner applied for and received an order of temporary custody. On March 15,2004, at the request of the respondent, the court conducted a hearing pursuant to General Statutes § 46b-129 (f), after which it sustained the order of temporary custody. The respondent did not appeal from that judgment. On May 21, 2004, the court issued its decision on the record, adjudicating the children neglected and committing them to the care, custody and guardianship of the commissioner. The respondent filed an appeal from that adjudication on July 27, 2004. More than three months after filing her appeal, on November 8,2004, the respondent consented to the termination of her parental rights, and the court appointed the commissioner as the statutory parent of the children. A few days after the respondent's parental rights were voluntarily terminated, she gave birth to another child, who is not the subject of these proceedings. "Since mootness implicates subject matter jurisdiction . . . [and] raises a question of law . . . our review of that issue is plenary." (Citations omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 865, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). "When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754, 826 A.2d 156 (2003). Nevertheless, "the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur. . . . [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available from the reversal of the judgment . . . the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Internal quotation marks omitted.) Chimblo v. Monahan, 265 Conn. 650, 655-56, 829 A.2d 841 (2003). The petitioner argues that the respondent's voluntary termination of her parental rights renders this appeal moot. We agree. In this case, an actual controversy no longer exists, and there is no practical relief that can be granted. During the pendency of the appeal, the respondent voluntarily consented to the termination of her parental rights of three of her children. As a result, custody of those children could not be returned to her even if she were to prevail on appeal. The respondent concedes that resolution of her appeal could provide no practical relief. See In re Candace H., 259 Conn. 523, 526, 790 A.2d 1164 (2002). Nevertheless, she contends that this case fits within the collateral consequences exception to the mootness doctrine. The respondent specifically claims that as a result of the underlying finding of neglect, it is reasonably likely that she is listed on the child abuse registry pursuant to General Statutes § 17a-101k and this appeal provides the only recourse for having her name expunged from that registry. She further argues that inclusion on the registry is stigmatizing, that her records could be obtained by a state agency pursuant to General Statutes § 17a-28 (f) and that ultimately such information could enter the public domain. A judgment of neglect is not directed at the respondent as a parent, but rather is directed at the condition of the children, namely, that they are neglected. In re Elisabeth H., 45 Conn. App. 508, 511, 696 A.2d 1291, cert. denied, 243 Conn. 903, 701 A.2d 328 (1997), cert. denied, 523 U.S. 1137, 118 S. Ct. 1840, 140 L. Ed. 2d 1091 (1998). Further, any concern about the dissemination of the records of the department of children and families (department) under § 17a-28 will not be remedied by a reversal of the finding of neglect because the department's record of its concerns regarding medical neglect, domestic violence and unresolved mental health issues will still be in the records because the respondent did not appeal from the order of temporary custody. The respondent relies heavily on Williams v. Ragalia, 261 Conn. 219, 802 A.2d 778 (2002), to support her claim of collateral consequences. That case is distinguishable from the present case. Williams involved an appeal from a decision by the commissioner revoking the plaintiffs special study foster care license. Although the plaintiff adopted the children for whom the license had been granted, our Supreme Court held that the appeal from the revocation of the license was not moot due to the totality of the possible consequences, namely, that the plaintiff would want to become a foster parent at some time in the future and the revocation would be held against her in subsequent proceedings. The court reasoned that the revocation of a foster care license for cause stigmatizes the plaintiff as having been found to be an unfit caregiver. Such a finding directly implicates the holder of the license, whereas in this case, a finding of neglect is not directed against the parents. See In re Elisabeth H., supra, 45 Conn. App. 512. The respondent also complains that the department has required her to sign a service agreement indicating that she will participate in services with regard to her new child. She argues that the record of her prior adjudication of neglect will continue to affect any further proceedings or involvement by the department with respect to her new child or any other children she may have in the future. On the basis of the unappealed order of temporary custody and subsequent voluntary termination of the respondent's parental rights with regard to three of her children, the department is on notice that there are concerns with the respondent's parenting ability. There were findings concerning parental neglect as a result of the order of temporary custody from which the respondent did not appeal. The evidence admitted at the neglect proceeding was essentially the same evidence admitted at the hearing on the order of temporary custody. At the neglect proceeding, the petitioner offered into evidence the transcripts from the hearing on the order of temporary custody and then rested. The respondent's counsel called the respondent briefly as a witness in order to testify as to what had occurred since she was last in court. The respondent testified regarding her feelings on the best placement for her children and also testified about her behavioral improvements since the hearing. The respondent has failed to show how the court's finding of neglect would produce collateral consequences above and beyond the consequences that could flow from the order of temporary custody. The appeal is dismissed. In this opinion the other judges concurred. The respondent father has not appealed from the judgments of neglect. We refer in this opinion to the respondent mother as the respondent. On appeal the respondent claims that (1) the court improperly denied her motion to strike the neglect/uncared for petitions and (2) there was insufficient evidence to support an adjudication of neglect. This case is distinguishable from In re Allison G., 276 Conn. 146, 883 A.2d 1226 (2005). In that case, the commissioner claimed that the child was both neglected and uncared for. The respondents agreed to admit only that the child was uncared for, but not that she had been subjected to sexual abuse because of their neglect. The court dismissed the neglect petition, holding that in light of the stipulation that the child was uncared for and the parents' agreement to commit the child to the commissioner, the neglect count was moot. The Supreme Court disagreed with the mootness holding. It reasoned that the commissioner currently claimed that it had not agreed to dismissal, was aggrieved and entitled to offer evidence establishing neglect, which if proved, might bear on whether reunification with the parents was appropriate or whether terminal ion of parental rights was appropriate.

Opinion HARPER, J. The defendant, Carlos Rodriguez, Sr., appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with the intent to sell by a person who is not drug-dependent in viola tion of General Statutes § 2 la-278 (b) and possession of narcotics with the intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) the trial court improperly denied defense counsel's motion to withdraw, thereby denying the defendant effective assistance of counsel, (2) there was insufficient evidence to support a conviction of possession of narcotics and (3) the court improperly instructed the jury regarding nonexclusive possession. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On July 24, 2002, William Bailey, a sergeant with the Bridgeport police department, was conducting undercover surveillance of the P.T. Bamum housing project in Bridgeport. Bailey observed two men conversing and surveying the area. He then parked his unmarked police vehicle across from building number five to continue watching the two men, who were later identified as the defendant and Robert Kelly. At approximately 12:15 p.m., Bailey observed the defendant and Kelly exchange paper currency. The defendant then went up a set of stairs leading to two second floor apartments in building number five. The defendant spoke to another man and then entered apartment 206. The defendant came out of apartment 206 and dropped a small item down to Kelly. As Kelly was walking by Bailey's unmarked car, Bailey observed Kelly holding a fold. Still in his car, Bailey followed Kelly out of the housing project to the Evergreen Apartments, an abandoned housing project approximately two blocks away, and called for backup. Ernest Garcia, an officer with the Bridgeport police department narcotics and vice division, arrived in uni form and in a marked police vehicle. The two officers found Kelly in a basement of one of the abandoned buildings as he was about to use the drugs that were in the fold. Garcia arrested Kelly. Bailey returned to the P.T. Bamum housing project to continue observing the defendant. Bailey resumed his surveillance from the same parking space across from building number five. At that time, he observed another individual, who was later identified as the defendant's son, riding a bicycle toward the defendant. The defendant's son handed the defendant a small plastic bag with white folds in it. As the defendant went back up the stairs toward apartments 206 and 208, his son looked intently at Bailey's car. Bailey became concerned that his undercover status had been compromised and, as a result, again called for reinforcement. Garcia arrived with several other officers from the Bridgeport police department. After seeing the marked police vehicles, the defendant and a man later identified as Sereno Almodovar, who had been standing on a landing with the defendant, ran into apartment 208. As Garcia reached the top of the stairs, the defendant emerged from apartment 208. Garcia immediately placed the defendant under arrest. At that time, a woman came down from the second floor of the apartment. Garcia informed her that the defendant had entered the apartment and that he may have hidden narcotics or a weapon in the apartment. Garcia then searched the areas of the apartment that were closest to the front door. He recovered a clear plastic bag containing nine white glassine envelopes near the garbage receptacle in the kitchen. Later testing revealed that the glassine envelopes contained heroin. Additional facts will be set forth as necessary. I The defendant first claims that the court abused its discretion in denying defense counsel's motion to withdraw, thus depriving the defendant of effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We disagree. The following additional facts are relevant to our resolution of that issue. On March 31, 2003, the day before jury selection was to begin, defense counsel filed a motion to withdraw. The court heard argument on the motion on April 1, 2003. Defense counsel claimed that the basis of the motion to withdraw was the defendant's assertion that he had filed a grievance against counsel the previous week. Counsel stated that neither he nor the defendant had a copy of the grievance. He further noted that he had been unable to obtain a copy of the grievance from the statewide grievance committee. The defendant then addressed the court. As the defendant began to address the basis of his grievance — allegedly his dissatisfaction with the way counsel had handled plea negotiations — the court interrupted him and stated that the terms of pretrial discussions were not an appropriate subject for discussion with the court. The court then denied counsel's motion. Later that day, after jury selection had commenced, the court revisited defense counsel's motion to withdraw. The court noted that the motion had been denied without prejudice and asked counsel whether he had any additional argument to make in support of the motion. Counsel indicated at that time that he did not have additional grounds to support the motion. The court informed counsel that if he wanted to renew the motion at the end of that day, or before the jury entered the next day, the court would again entertain the motion. The motion was never renewed, and trial commenced the next morning. Before reviewing the defendant's claim, we underscore that our review is of the actions of the trial court, not of the actions of defense counsel. As this court previously has stated: "Almost without exception, we have required that a claim of ineffective assistance of counsel . be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. . On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant's sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel. . . . We have addressed such claims, moreover, only whe[n] the record of the trial court's allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development. . . . Our analysis, therefore, is restricted to the actions of the trial court . . . ." (Internal quotation marks omitted.) State v. Lopez, 80 Conn. App. 386, 390, 835 A.2d 126 (2003), aff'd, 271 Conn. 724, 859 A.2d 898 (2004). Our review of the court's denial of defense counsel's motion to withdraw rests on a determination of whether the court abused its discretion. Morgan v. Commissioner of Correction, 87 Conn. App. 126, 136, 866 A.2d 649 (2005). "We accord wide discretion to a trial court's ruling on a motion for disqualification of counsel for conflict of interest. . In determining whether the trial court abused its discretion, we indulge every reasonable presumption in favor of the correctness of the court's decision. . . . The ultimate issue is whether the . . . court could reasonably have reached the conclusion that it did." (Citation omitted; internal quotation marks omitted.) Id. "The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment . . . guarantee^] to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest. . To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a timely manner." (Citations omitted; internal quotation marks omitted.) State v. Lopez, supra, 80 Conn. App. 391. "The extent of the inquiry, however, lies within the discretion of the trial court. . A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints." (Internal quotation marks omitted.) State v. Dews, 87 Conn. App. 63, 83, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005). In the present case, the transcript reveals that the court explored the possibility of a conflict of interest when it received defense counsel's motion to withdraw. After receiving the motion, the court heard argument from counsel. Counsel explained that the defendant allegedly had filed a grievance against him as a result of the defendant's dissatisfaction with the way counsel had worked with the state during pretrial negotiations. Counsel argued that he foresaw a potential conflict of interest as a result of both having to represent the defendant in his criminal trial and to defend against the defendant's grievance before the statewide grievance committee. After hearing from counsel, the court allowed the defendant to make a statement regarding the motion. The defendant complained that counsel had not been responsive to certain requests that he had made and that counsel had not provided him with a blueprint of his trial. The defendant then began to discuss his unhappiness with counsel's conduct during plea negotiations, but the court interrupted him and stated that it would not entertain discussions about the defendant's pretrial negotiations with the state. At that time, the court denied the motion and proceeded with jury selection. Contrary to the defendant's claim that the court did not conduct a thorough inquiry of the potential conflict of interest, the court heard from both counsel and the defendant. Neither could provide the court with a copy of the grievance, and neither was able to assert a reason to grant counsel's motion to withdraw on the eve of trial. Instead, the court's inquiry into the basis for the motion revealed that the defendant was simply unhappy with counsel's representation. Insignificant and unsubstantiated complaints about counsel's performance and mere disagreements with counsel's tactical decisions are not sufficient to warrant the withdrawal of counsel. State v. Vega, 259 Conn. 374, 391, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). Indeed, the court's inquiry into that issue continued even after the initial argument by counsel and the defendant. Later that same afternoon, after jury selection began, the court asked counsel whether he had any additional information to support the motion to withdraw. Counsel indicated that he did not. The court further noted that the motion had been denied without prejudice and that if counsel subsequently obtained additional information that would substantiate a conflict of interest, the court would revisit the motion. Trial proceeded the next day, but the motion was never renewed. Thus, the court thoroughly explored defense counsel's potential conflict of interest at the first opportunity and continued to fulfill its obligation to investigate the conflict by informing counsel that the motion could be renewed before the beginning of trial. Under those circumstances, we cannot say that the court abused its discretion in denying defense counsel's motion to withdraw. II The defendant next claims that there was insufficient evidence to convict him of possessing narcotics in violation of § 21a-278 (b) and 21a-278a (b). The defendant contends that the only evidence supporting the possession element of those two offenses was the testimony of Bailey and Garcia establishing the defendant's physical proximity to the bag of heroin found at the scene. The defendant argues that because he was not in exclusive possession of the apartment where the heroin was discovered, physical presence alone is insufficient to establish possession. As a result, the defendant argues, the conviction must be reversed. We disagree. In reviewing sufficiency of the evidence claims, we apply a two part test. "First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . ." (Internal quotation marks omitted.) State v. Straub, 90 Conn. App. 147, 153-54, 877 A.2d 866, cert. denied, 275 Conn. 927, 883 A.2d 1252 (2005). "While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the juiy's verdict of guilty. " (Internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 682, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004). "[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where . . . the [narcotics were] not found on the defendant's person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses . . . it is essential that the state's evidence include more than just a temporal and spatial nexus between the defendant and the contraband. . . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant's] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime." (Citation omitted; internal quotation marks omitted.) States v. Davis, 84 Conn. App. 505, 510-11, 854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004). The evidence in this case did not consist merely of the defendant's physical proximity to the heroin that was recovered from apartment 208, despite the defendant's assertions to the contrary. Rather, there were other incriminating circumstances that buttressed the inference that the defendant knew of the presence of the bag of heroin and had control of it. Bailey observed the defendant's son approach the defendant and hand him a small plastic bag with white folds in it. Bailey then called for reinforcement and Garcia arrived in a marked police vehicle. After seeing the marked police vehicle, the defendant ran into apartment 208. He emerged seconds later as Garcia reached the top of the stairs and entered the apartment. After arresting the defendant, Garcia spoke to a woman who was coming down from the second floor of the apartment. He informed her that the defendant may have left narcotics or a weapon inside the apartment and then immediately searched the area in close proximity to the front door of apartment 208. Garcia found a plastic bag with white folds in it behind the trash receptacle in the kitchen, which was to the immediate left of the front door. Although the defendant was not in exclusive possession of the apartment — he did not live there, and another woman was present when Garcia searched the premises — it was reasonable for the jury to infer that he had dropped the bag of heroin behind the trash receptacle during the brief time that he was in the apartment. The defendant argues that the testimony of Bailey and Garcia was not credible for several reasons, including the fact that Bailey was too far away from the transaction between the defendant and his son to identify the contents of the plastic bag and that Garcia never investigated the woman in the apartment to see if the heroin belonged to her. Those issues, however, were fully addressed by defense counsel during cross-examination and closing argument. "Whether [a witness'] testimony [is] believable [is] a question solely for the juiy. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses." (Internal quotation marks omitted.) State v. McFarlane, 88 Conn. App. 161, 169, 868 A.2d 130, cert. denied, 273 Conn. 931, 873 A.2d 999 (2005). Construing the evidence in the light most favorable to sustaining the verdict and deferring to the juiy's credibility determinations, we conclude that there was sufficient evidence to establish that the defendant possessed heroin. Ill The defendant finally claims that the court improperly instructed the jury regarding the issue of nonexclusive possession. Specifically, the defendant claims that the court violated his constitutional right to due process by giving an incomplete instruction. We disagree. In his request to charge, the defendant asked that the jury be instructed as follows: "Where the defendant is not in exclusive possession of the premises where the narcotics are found, you may not infer that he knew of their presence and that he had control of them, unless he made some incriminating statement, or unless there are some other circumstances which tend to support such an inference." See also D. Borden & L. Orland, 9 Connecticut Practice Series: Criminal Jury Instructions (2d Ed. 1997) § 15.2, p. 671. The court's instruction was similar, although not identical to that requested by the defendant. It stated: "You should also consider that where it is shown that a person is not the sole and exclusive possessor of the premises where the narcotics are found, you cannot infer from the mere presence of the narcotics that such a person knew of their presence and had control over them. Whether the defendant had possession of the heroin in this case is a question of fact for you to decide. And you may, as I have told you, draw logical and reasonable inferences from the evidence." We note initially that the defendant's challenge to the court's instruction is properly reviewable. "A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given." Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). Here, defense counsel submitted his requested instruction in written form the day before trial concluded. "When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled." (Internal quotation marks omitted.) State v. Erhardt, 90 Conn. App. 853, 870-71, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005). In applying those principles to the defendant's claim that the court failed to charge the jury as he requested, "we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support." (Internal quotation marks omitted.) State v. Nesmith, 220 Conn. 628, 632, 600 A.2d 780 (1991). The court must give a requested instruction if it is relevant to the issues of the case and accurately states the law. State v. Weber, 31 Conn. App. 58, 68, 623 A.2d 506, cert. denied, 226 Conn. 908, 625 A.2d 1379 (1993). "The court, however, has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding." State v. Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991). In this case, the defendant did not challenge the testimony of either Bailey or Garcia that he was present at the P.T. Bamum housing project on July 24, 2002. He also did not dispute the officers' testimony that he ran into apartment 208 when Garcia arrived. Rather, the defendant's theory of the case appears to be that he was on the premises that day and that he did enter apartment 208 after seeing Garcia, but that the heroin that was discovered in the kitchen of apartment 208 belonged either to the woman who emerged from the second floor of the apartment, to Almodovar, the other man who was on the landing in front of apartment 208, or to some other occupant of that apartment. Adopting that possible version of the facts, we now consider the defendant's claim that the court violated his constitutional right to due process by omitting from its jury instruction the clause in the defendant's request to charge, "unless he made some incriminating statement, or unless there are some other circumstances which tend to support such an inference." After a thorough review of the court's charge as a whole, we conclude that it was not reasonably possible that the jury was misled. Although the court did not use the specific language that the defendant requested, it fully addressed the elements of constructive possession. The defendant's claim that the court's instruction on nonexclusive possession was improper without the clause, "unless he made some incriminating statement," is unavailing because there was no evidence of any statement made by the defendant during the events in question, much less an incriminating one. Without any evidence to support such a finding, the court did not act improperly in excluding that language. See State v. Diggs, supra, 219 Conn. 299. As to the absence of the second clause of the defendant's requested instruction, we conclude that the court's charge gave the jury sufficient guidance in reaching a verdict. Specifically, the court first advised the jury that presence alone was insufficient to support a finding that the defendant constructively possessed heroin and further explained that the jury could make "logical and reasonable inferences [based on] the evidence." Because there was ample additional testimonial and circumstantial evidence connecting the defendant to the heroin, it is not reasonably possible that the jury found the element of possession satisfied solely because the defendant had been present at the location where the heroin was found. See Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 306, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). We conclude, therefore, that the defendant was not denied his constitutional right to due process by the court's instruction on nonexclusive possession. The judgment is affirmed. In this opinion the other judges concurred. The court imposed a total effective term of eight years imprisonment. A fold was described a1 trial as glassine paper, folded to hold cocaine or heroin. There was conflicting testimony at trial as to whether the drugs in Kelly's possession tested positive for heroin or cocaine. The nature of Kelly's drugs, however, is not relevant to the present appeal because the defendant was never charged in relation to that transaction. At oral argument, the parties disagreed about which apartment the defendant entered after seeing Garcia. The defendant took the position that apartment 206 was the location at issue during the first transaction with Kelly, and apartment 208 was the location at issue when Garcia approached and arrested the defendant. The state, on the other hand, took the position that all events in question took place in apartment 206. We reference apartment 208 here because we conclude that the jury reasonably could have found that the defendant entered that apartment on the basis of the testimony of Bailey and Garcia. In addition, the court in its instructions to the jury identified apartment 208 as the situs of the alleged violations. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . to have the assistance of counsel for his defense." It is well settled that this right includes the right to effective assistance of counsel and its corollary, the right to conflict free representation. See State v. Drakeford, 261 Conn. 420, 425 n.8, 802 A.2d 844 (2002). The constitution of Connecticut, article first, § 8, provides in relevant part: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . We decline to review the defendant's claim that his state constitutional rights were violated by the court's denial of counsel's motion to withdraw because there has been no independent analysis of that claim. "We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant's claim . . . ." (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004). That was the second motion to withdraw filed in this case. A motion to withdraw also had been filed on November 13, 2002, by the defendant's first counsel, in part, because the defendant had filed a grievance against him. Counsel noted at that time that neither he, nor the defendant, had a copy of the grievance for the court. Counsel stated that despite trying to obtain a copy from the statewide grievance committee earlier that morning, he had been unsuccessful. The defendant claimed that he had asked counsel to obtain transcripts from his probation hearing to use for comparison at his criminal trial, but that counsel had failed to comply with that request. In addition, the defendant complained that counsel had not filed a discovery motion that he had requested counsel file before trial. The defendant preserved his claim by making a motion for a judgment of acquittal on the ground of insufficient evidence. See State v. Binnette, 86 Conn. App. 491, 495 n.2, 861 A.2d 1197 (2004), cert. denied, 273 Conn. 902, 868 A.2d 745 (2005).

Opinion DiPENTIMA, J. The defendant, MLS Construction, LLC, appeals from the judgment of the trial court concluding that the defendant breached the contract between the defendant and the plaintiff, MD Drilling & Blasting, Inc., and awarding damages, interest and attorney's fees. On appeal, the defendant claims that the court improperly (1) found that a contract existed between the parties and (2) awarded contract interest and attorney's fees. We affirm the judgment of the trial court. The court's memorandum of decision sets forth the following facts relevant to the defendant's appeal. The owner of a vacant piece of property in East Haven retained the defendant to do excavation work, and, in February or March, 2003, the defendant asked the plaintiff to perform the necessary rock drilling and blasting for the project. In 2002, the plaintiff had entered into a written contract with the defendant to do similar work on a job in North Branford, for which the plaintiff had not been paid fully. The plaintiff agreed to perform the work in East Haven provided that the defendant make a substantial payment on the outstanding balance owed for the work done in North Branford. On March 31, 2003, the defendant agreed to the condition and tendered a check to the plaintiff for $15,000. For the East Haven agreement, the parties adopted the same terms and conditions contained in the North Branford written agreement, with a minor price reduction made orally during the course of the North Bran-ford job. Under the terms of the oral agreement, the plaintiff began work in East Haven on the morning of April 1,2003. On April 15,2003, the plaintiff was notified by its bank that the defendant had stopped payment on the $15,000 check on April 11. After its unsuccessful attempts to locate the defendant for an explanation of the stop payment, the plaintiff ceased work on April 18, 2003. Despite the defendant's request that the plaintiff continue work on the East Haven project, the plaintiff advised the defendant that it would not resume drilling and blasting without some payment. Receiving none, the plaintiff did not return to the East Haven project. Thereafter, the plaintiff filed an amended, six count complaint, claiming, inter alia, breach of contract and unjust enrichment. After a trial to the court, the court filed its memorandum of decision, concluding that the plaintiff had proven its claims of breach of contract and unjust enrichment, and was entitled to damages in the amount of $26,882.83 plus interest at 2 percent per month from May 25, 2003, to the date of judgment, as well as costs, expenses and attorney's fees. The court withheld final judgment to allow the plaintiff "to file a computation of interest, including a per diem rate, and an affidavit with respect to costs and expenses, and attorney's fees." After reviewing the submissions, the court conducted a subsequent hearing, filed a supplemental memorandum of decision and rendered judgment on January 24, 2005, awarding a total of $88,181.09 to the plaintiff. This appeal followed. We begin by setting forth the applicable standard of review. "The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. . On appeal, our review is limited to a determination of whether the trier's findings are clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Citations omitted; internal quotation marks omitted.) Fortier v. Newington Group, Inc., 30 Conn. App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993). The defendant first argues that the court improperly found that a contract existed between the parties. Specifically, the defendant alleges that there was no offer and acceptance between the parties because the plaintiff revoked its offer, and there was no meeting of the minds. We disagree. "It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties. . . . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were. . . . Whether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court that we will not review unless we find that its conclusion is unreasonable." (Citations omitted.) Steeltech Building Products, Inc. v. Edward Suit Associates, Inc., 18 Conn. App. 469, 471-72, 559 A.2d 228 (1989). The following additional facts educed from the record are relevant to the disposition of the defendant's appeal. On the afternoon of April 1, 2003, the same day that it had begun drilling and blasting for the East Haven project, the plaintiff faxed the defendant its standard form of agreement. The agreement was intended to be identical to the North Branford agreement but reflected the orally agreed upon reduction to $2.75 per cubic yard. The plaintiff had not signed the written agreement, and the defendant testified that it never received it. The defendant argues that the unsigned written agreement that the plaintiff faxed on April 1, 2003, effectively revoked the original offer and, thus, invalidated the oral contract. The defendant's revocation argument was not raised or preserved, and the defendant filed no motion for articulation. We note, however, that because the court properly found that the defendant had accepted the offer, as a matter of law there could be no revocation. It is a fundamental principle of contract law that " [r] evocation of an offer in order to be effectual must be received by the offeree and before he has exercised his power of creating a contract by acceptance of the offer." (Emphasis added; internal quotation marks omitted.) Lyon v. Adgraphics, Inc., 14 Conn. App. 252, 255, 540 A.2d 398, cert. denied, 208 Conn. 808, 545 A.2d 1103 (1988); see also L. & E. Wertheimer, Inc. v. Wehle-Hartford Co., 126 Conn. 30, 35, 9 A.2d 279 (1939); 1 A. Corbin, Contracts (Rev. Ed. 1993) § 2.18, p. 215 ("[a]fter an acceptance has become effective, there is no power in either party to revoke or withdraw"); 1 Restatement (Second), Contracts § 42, comment (c), p. 114 (1981) ("[o]nce the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such"). Thus, even if the plaintiff had attempted to revoke its offer, which required a partial payment for the balance owed on the North Branford job, the fact that the defendant had accepted the offer by tendering the check terminated any possible revocation. The oral contract was binding. Additionally, the defendant avers that there was no meeting of the minds between the parties and that therefore no valid contract existed. We disagree. "In order for an enforceable contract to exist, the court must find that the parties' minds had truly met. . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Citations omitted; internal quotation marks omitted.) Fortier v. Newing-ton Group, Inc., supra, 30 Conn. App. 510. The defendant argues that the differences between the oral contract and the contract that the plaintiff faxed on April 1, 2003, were material and that therefore there was no meeting of the minds because the parties were operating under the terms of two distinct contracts. Our review of the entire record, however, convinces us that the court's finding that the parties both believed they were operating under the North Branford contract is supported by the evidence and is not clearly erroneous. To the extent that the parties' testimony differed, the court relied on the credibility of the witnesses to determine the terms and conditions of the contract. The court explicitly found the plaintiffs witness to be credible and the defendant's principal witness to be incredible. "This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony." (Internal quotation marks omitted.) L&R Realty v. Connecticut National Bank, 53 Conn. App. 524, 535, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). The court reasonably concluded that both parties were operating under the terms of the enforceable oral contract and that there was a valid meeting of the minds. Last, the defendant argues that the court improperly awarded contractual interest and attorney's fees. In support of its argument, the defendant relies on the "American rule." "The general rule of law known as the American rule is that attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997). The North Branford contract, under which the parties operated for the East Haven contract, contains a specific provision regarding attorney's fees, costs and expenses, as well as interest for past due balances. In light of our conclusions as to the existence and terms of the contract between the parties, the defendant's argument as to interest and attorney's fees fails. The judgment is affirmed. In this opinion the other judges concurred. The written contract for the North Branford job had included a price of $2.90 per cubic yard, but, during the course of the job, the price had been reduced orally to $2.75 per cubic yard. The remaining four counts of the amended complaint alleged fraud and intentional misrepresentation, wanton and reckless conduct, statutory theft and negligent misrepresentation. The defendant pleaded two special defenses, claiming that the plaintiff did not complete the job in a workmanlike manner and charged for services it did not perform. The court found in favor of the plaintiff on the breach of contract and upjust enrichment counts, and on the special defenses. This appeal challenges the court's finding on the breach of contract count only. The agreement also contained minor differences, such as statements that the plaintiff would provide fuel for its own equipment and conduct test drilling as directed by the contractor at $200 per hour. In addition, the faxed agreement stated that the contractor will pay interest at a rate of 1 1/2 percent per month on past due balances, as opposed to the 2 percent stated in the North Branford agreement. We note also that the defendant claimed never to have received the faxed contract. Even if the written agreement had been sufficient to revoke the plaintiffs offer, the revocation would have been ineffective still because an offeree must be aware of the revocation in order for it to take effect. See Lyon v. Adgraphics, Inc., supra, 14 Conn. App. 255. The defendant asserts that the unsigned standard contract that the plaintiff faxed and the defendant did not receive varied from the oral contract in "materially significant terms." On the contrary, we note that even if the plaintiff had been operating under the terms of the written contract, the materially significant terms were the same as those in the oral contract. Cf. L & R Realty v. Connecticut, National Bank, supra, 53 Conn. App. 536-38 (concluding that agreement unenforceable because parties had not agreed on essential terms). The North Branford agreement contains the following language: "Contractor . . . will pay interest at a rate of two percent per month on past due balances. Any fees, costs or expenses, including legal fees, incurred by the Subcontractor associated with receipt of payment shall be paid by the Contractor."

Opinion FOTI, J. The defendant, Kareem Hedge, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a), possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of narcotics with the intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b) and interfering with an officer in violation of General Statutes § 53a-167a (a). The trial court also determined that the defendant had violated General Statutes § 53a-40b because he was on pretrial release at the time he committed the crimes of which he was convicted. On appeal, the defendant claims that (1) the court made improper evidentiary rulings and (2) prosecutorial misconduct during the state's rebuttal argument to the jury deprived him of a fair trial. We affirm the judgment of the trial court. The juiy reasonably could have found the following facts. An informant told Officers Keith Ruffin and Raymond Long of the Bridgeport police department that the defendant possessed narcotics and would be driving his vehicle in the vicinity of a public housing project on March 13, 2003. The police set up surveillance of the area on that date, and when they observed the defendant's vehicle, two uniformed officers in an unmarked car began following it. The defendant stopped and exited his vehicle, at which time the officers also stopped and exited their car. After the defendant saw them, he began running and threw a plastic bag to the ground. The officers soon arrested him and discovered that the bag contained 135 smaller bags of crack cocaine. After a trial, the jury returned a verdict of guilty on all counts. The court rendered judgment in accordance with the verdict and subsequently found the defendant guilty of committing crimes while on pretrial release. The court sentenced the defendant to a total effective term of twenty-three years incarceration. This appeal followed. I The defendant first claims that the court made improper evidentiary rulings concerning (1) a complaint he had filed with the internal affairs division of the police department, claiming that the arresting officers used excessive force and (2) hearsay statements of the informant through the testimony of one of the police witnesses. We address each part of the defendant's claim in turn. A Defense counsel sought to cross-examine the first witness, a police lieutenant, as to his knowledge of the defendant's complaint, arguing that the lieutenant had a motive to he because of the complaint. The court determined that the complaint was not relevant and therefore precluded defense counsel from questioning the lieutenant about it. After a lunch recess, the prosecutor asked the court to preclude defense counsel from questioning any of the other police witnesses about the complaint. The court responded: "I'm not going to have a blanket order that [defense counsel] is prohibited [from questioning all of the witnesses about the complaint], There may be a reason or circumstances [may] develop that could . . . sway the jury, so I just don't want some blanket." Defense counsel then stated: "The only claim I'm going to make is [that the complaint relates to the police witnesses'] motive and bias. I assume that the court's ruling in regard to the [cross-examination of the lieutenant], although not a blanket ruling, to allow me at another point to ask a different witness the same line of inquiry — I wasn't going to do that, assuming that's a dead issue now because of the prior ruling of the court." The court replied: "It's a dead issue, then. Don't do it." Defense counsel did not attempt to question any of the other six police witnesses about the complaint. The defendant argues that the court improperly restricted the scope of his questioning of the lieutenant and the other six police witnesses. "Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . [I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) Friezo v. Friezo, 84 Conn. App. 727, 729, 854 A.2d 1119, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004). The court's discretion, however, "comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution]." (Internal quotation marks omitted.) State v. Brown, 273 Conn. 330, 339, 869 A.2d 1224 (2005). "The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . As an appropriate and potentially vital function of cross-examination, exposure of a witness' motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness' reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment." (Citation omitted; internal quotation marks omitted.) Id., 338. In determining whether such a violation occurred, "[w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial." (Internal quotation marks omitted.) Id., 340. If we conclude that the court improperly restricted the defendant's opportunity to impeach a witness for motive, interest, bias or prejudice, we then proceed with a harmless error analysis. See State v. White, 64 Conn. App. 126, 129, 779 A.2d 776, cert. denied, 258 Conn. 910, 782 A.2d 1251 (2001). "Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) Id. "[T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Rodriguez, 91 Conn. App. 112, 122, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005). Considering the nature of the excluded inquiry in the present case, we conclude that the court improperly determined that the defendant's complaint was not relevant. The existence of the complaint was relevant because it could have biased the police witnesses against the defendant. "[E]vidence tending to show motive, bias or interest of an important witness is never collateral or irrelevant. [Indeed, it] may be . . . the very key to an intelligent appraisal of the testimony of the [witness]." (Internal quotation marks omitted.) State v. Christian, 267 Conn. 710, 748, 841 A.2d 1158 (2004). This court previously has determined that the preclusion of inquiry regarding police witnesses' possible bias does not comport with the requirements of the sixth amendment. See State v. Joyce, 45 Conn. App. 390, 397-99, 696 A.2d 993 (1997), appeal dismissed, 248 Conn. 669, 728 A.2d 1096 (1999); State v. Privitera, 1 Conn. App. 709, 711-13, 476 A.2d 605 (1984). We next evaluate whether the court's improper preclusion of questioning concerning the complaint was nonetheless harmless. We find it significant that defense counsel failed to have the complaint marked for identification and attempted to cross-examine only the lieutenant as to the complaint. In precluding that cross-examination, the court clearly stated that it would not preclude defense counsel from questioning other witnesses about the complaint because it could become pertinent later in the trial. Defense counsel then stated that he would not question any of the other six police witnesses about the complaint because his purpose would be to impeach them for bias, and he "assumfed that that was] a dead issue now . . . ." The court responded: "It's a dead issue, then. Don't do it." Although we are uncertain as to the import of the court's response, we do not consider it a prospective ruling as to the other six police witnesses who had not testified yet. It is counsel's responsibility to raise an issue for the court's attention at each relevant point in the trial. Counsel should not invite the court to agree or disagree with an assumption that he makes regarding an issue that may arise later in the trial. The court must have a full opportunity to consider the issue in the context of the trial as it progresses. In the present case, the court explicitly acknowledged that it would not preclude all questioning relating to the complaint because it did not know whether the complaint might become pertinent later in the trial. We therefore determine that defense counsel voluntarily relinquished his opportunity to question the other six police witnesses about the complaint, just as he chose not to have the complaint marked for identification. Accordingly, our harmless error analysis focuses on the lieutenant's testimony. On the basis of our review of the transcript, we determine that that testimony was not particularly important because the lieutenant was one of seven police witnesses to testify at trial. His testimony largely was cumulative of the other six police witnesses' testimony. Defense counsel was permitted a wide-ranging cross-examination of the lieutenant, including questioning him about whether any of the police involved in the defendant's arrest were "upset," "overzealous" or unable to "[maintain] their cool." Furthermore, our review indicates that the prosecution had a strong case against the defendant. We therefore conclude that the defendant has not met his burden of showing that the court's improper preclusion of cross- examination regarding the complaint affected the result of the trial. The court's improper ruling constituted harmless error. B The defendant also claims that the court improperly admitted hearsay statements of the informant through the testimony of one of the police witnesses. In the portion of the transcript to which the defendant cites, the prosecutor asked that witness how the police had learned that the defendant possessed narcotics. Defense counsel objected and stated: "As a result of the information [received from the informant, the witness] can say what he did. He cannot testify as to what information he received . . . .''In accordance with defense counsel's observation, the court instructed the witness to testify as to his statements to other members of the police department. The witness then testified that he told his police colleagues that a man possessed narcotics and would be driving a vehicle in a certain area. Contrary to the defendant's claim, the court did not admit hearsay statements of the informant. The witness testified only as to his own statements to other members of the police department. Accordingly, we reject the defendant's claim. II The defendant next claims that prosecutorial misconduct during the state's rebuttal argument to the jury deprived him of a fair trial. In rebutting defense counsel's argument that the police framed the defendant and invented the existence of the informant, the prosecutor sought to explain that informants do not testify in order to protect their identities. Referring to an eight year old witness in another case who was murdered, the prosecutor stated: "Did you ever hear of B. J. Brown? B. J. Brown is dead. Why? He wanted to testify." Defense counsel objected to that comment but did not request a curative instruction. At oral argument before this court, the state conceded that the prosecutor's comment was improper. We conduct a two step inquiry in analyzing claims of prosecutorial misconduct. "The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial." (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004). We recognize that "because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Nevertheless, [w]hile a prosecutor may argue the state's case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. Antonio A., 90 Conn. App. 286, 298, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005). "The issue is whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [The court] must view the prosecutor's comments in the context of the entire trial." (Internal quotation marks omitted.) Id., 297. "[T]he fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . It is in that context that the burden [falls] on the defen dant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted." (Internal quotation marks omitted.) Id., 301. The factors to be considered in assessing the prosecutor's actions include "the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case." (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). We agree with the parties that the prosecutor's reference to Brown was improper. "It is well established that a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Furthermore, [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . We have stated that such appeals should be avoided because they have the effect of diverting the [jurors'] attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . No trial — civil or criminal — should be decided upon the basis of the jurors' emotions." (Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 602, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005). Because Brown was an eight year old witness who had been murdered and had no relationship to the defendant's case, the prosecutor's use of Brown's name constituted an improper appeal to the jury's emotions and may have distracted it from its duty to decide the case objectively. Although the comment regarding Brown was improper, it was isolated and brief. Viewing it in the context of the entire trial, we conclude that it was not so prejudicial as to deprive the defendant of a fair trial. We therefore reject the defendant's claim of prosecu-torial misconduct. The judgment is affirmed. In this opinion the other judges concurred. "B. J. Brown" refers to Leroy Brown, Jr. See State v. Peeler, 271 Conn. 338, 348-55, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

Opinion LAVINE, J. The plaintiff, James R. Welsch, appeals from the judgment of the trial court rendered in favor of the defendant, Michael Groat, in an action for breach of a lease. The principal issue in this appeal is whether the court properly found that the leased premises were rendered uninhabitable by the plaintiffs failure to make necessary repairs, thereby resulting in a constructive eviction. We affirm the judgment of the trial court. The following facts as found by the trial court are relevant to our resolution of the plaintiffs appeal. On June 1,2003, the parties entered into a one year written, residential lease agreement (lease) for a single-family residence in Old Saybrook. The defendant used the premises as his primary residence and intended to use the finished portion of the basement as a bedroom for his three children. During the first month of the defendant's occupancy, he and his three children became aware of certain deficiencies with the premises. In particular, the defendant noticed water damage and the presence of mold and mildew in the basement. Due to the water problems in the basement, the defendant was unable to use that area as a bedroom for his children, as he originally had intended. Sometime in early July, 2003, the defendant informed the plaintiff of the water damage and the formation of mold and mildew in the basement. In response to that notification, the plaintiffs attorney sent a letter dated July 23, 2003, that referred the defendant to a provision in the lease that stated that the defendant had inspected the premises and accepted its condition "as is." By letter dated August 1, 2003, the defendant again informed the plaintiff of the defects in the premises. Specifically, the defendant made the following assertions with regard to the basement: "The basement is constantly wet. There are puddles when it rains and a constant wet slime along the east wall; the paneling and trim is badly rotted, obviously a long-term problem; paint is peeling from concrete walls . . . the latex floor is bubbling and peeling from wetness. . . . [T]here are significant mold and mildew issues with the entire basement, especially the finished living area." The defendant moved out of the residence at the end of August. The plaintiff sought damages from the defendant, alleging that the defendant had breached the lease. The defendant denied the allegations and filed a four count counterclaim, which included a claim for constructive eviction premised on the defendant's inability to use a portion of the premises due to certain defects, including water leakage and the presence of mold and mildew. In its May 26, 2005 memorandum of decision, the court rendered judgment in favor of the defendant on the plaintiffs breach of lease claim and on the defendant's constructive eviction counterclaim. The court found that "in addition to water damage, [the] presence of mold and mildew" made it "impossible" for the defendant to use the basement room as a bedroom for his children. On the basis of that finding, the court con- eluded that the plaintiffs failure to make the necessary repairs to the rental property in regard to the water damage, mold and mildew "rendered the premises uninhabitable and constituted a constructive eviction of the defendant and a breach of lease by the plaintiff." After issuing its memorandum of decision, the court addressed the plaintiffs motion for articulation concerning whether the plaintiff had received notice of the conditions that rendered the premises uninhabitable and the factual bases for its finding of constructive eviction. In its articulation, the court referred to the defendant's letter to the plaintiff dated August 1, 2003, and the defendant's assuming occupancy of the premises. The court further stated that the factual bases for its findings were "self-evident." On appeal, the plaintiff raises a number of claims that boil down to a single dispositive issue, namely, whether the court properly found that the leased premises were rendered uninhabitable by the plaintiffs failure to make necessary repairs, thereby resulting in a constructive eviction. To evaluate the plaintiffs claim, we begin with the prevailing standard of review. "We review the factual findings of the trial court under our well established clearly erroneous standard. . . . The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 332, 764 A.2d 199 (2001). "[A] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant's promise to pay rent. " (Internal quotation marks omitted.) Conference Center Ltd. v. TRC, 189 Conn. 212, 220, 455 A.2d 857 (1983). "In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem." (Internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, supra, 61 Conn. App. 332; see also Thomas v. Roper, 162 Conn. 343, 349, 294 A.2d 321 (1972). Moreover, "[wjhether the premises are untenantable is a question of fact for the trier, to be decided in each case after a careful consideration of the situation of the parties to the lease, the character of the premises, the use to which the tenant intends to put them, and the nature and extent by which the tenant's use of the premises is interfered with by the injury claimed. . . . That factual determination will not be disturbed by [a reviewing] court unless the conclusion is such that it could not reasonably be reached by the trier." (Internal quotation marks omitted.) Johnson v. Fuller, 190 Conn. 552, 556-57, 461 A.2d 988 (1983). It is necessary, therefore, to review the court's findings along with the factual record to determine whether the court properly found that the defendant was constructively evicted. The court found that the defendant had proven that the premises were untenantable due to the plaintiffs failure to make necessaiy repairs in regard to the water damage and the presence of mold and mildew. The court based that finding on the testimony of the defendant and that of the defendant's witnesses, coupled with the physical evidence, which supported this element of constructive eviction. The defendant himself testified and produced witnesses, Leonard Pass, a subcontractor, and Jacqueline Jenkins, a Realtor, who testified as to the presence of water damage, mold and mildew in the basement of the premises. Specifically, Pass testi fied that he "observed rot, and I know it's rot because when you touch it, the stuff falls apart. It's not a stain, it's rot. I observed so-called mold and mildew. When you see stuff growing, in the trade, we refer to it as either mold or mildew . . . ." Jenkins testified that "[t]here was, what I consider in real estate, mildew, probably mold. . . . [M]y finger went right through the wall." Although there was conflicting testimony given by the plaintiff as to the condition of the basement, the plaintiff conceded that he saw mildew in the basement. The court found that the defendant and his witnesses were credible. In addition, the physical evidence submitted bolstered the testimony offered by the defendant and his witnesses. Photographs of the basement that showed water damage, mold and mildew were offered into evidence. It is an abiding principle of our jurisprudence that "[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Smithy. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court, and we cannot supplant that function when considering issues on appeal. On the basis of the factual record, we cannot conclude that the court's finding that the premises were untenantable was clearly erroneous. The court also found that the defendant satisfied the second element of constructive eviction. The finding that the defendant vacated the premises because of the existing problems is a logical outgrowth of the court's conclusion that the plaintiff failed to "remedy the conditions with the urgency and intensity warranted by the scope and the nature of the needed repairs . . . ." After reviewing the factual record, we find adequate support for that conclusion. The defendant testified that he vacated the premises in late August, 2003, because of ongoing safety concerns for himself and his three children due to the continuing problems created by the water damage and the presence of mold and mildew. Finally, the court found that the defendant had allowed the plaintiff a reasonable amount of time to correct the problem, as required under the third prong of the constructive eviction test. The defendant testified that he notified the plaintiff about the water damage in early July, 2003, and about the mold and mildew in his letter dated August 1, 2003. Although the defendant testified that he first communicated the problem as being a wet basement, he also characterized the problem to the plaintiff as "long-term" and "on-going" during this first communication. At trial, the defendant offered into evidence a letter from the plaintiffs attorney addressed to the defendant, dated July 23, 2003, which supported that testimony. That letter specifically stated that the defendant had "informed this office by telephone and [the plaintiff] by letter that certain deficiencies exist in the premises you are renting," and directed the defendant to a provision in the lease in which the defendant acknowledged "inspecting the premises and accepting them as is." Notwithstanding the July 23,2003 letter, the plaintiff testified that he had received no communication from the defendant regarding any deficiencies with the premises prior to receiving the defendant's letter dated August 1, 2003. As noted previously, "[Appellate courts] . . . may not retry a case. . . . The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn. App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). Although the defendant did not explicitly state in his initial communication to the plaintiff that there was mold and mildew in the basement of the premises, it was not unreasonable for the court, in light of the full record, to draw the inference that a long-term and ongoing problem with water permitted mold and mildew to grow. As we have often stated, "[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). "In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) In re Kristy A., 83 Conn. App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004). The court drew a reasonable inference on the basis of the testimony and other evidence offered at trial that the plaintiff adequately was apprised of the water damage, as well as the growth of mold and mildew, and given a reasonable amount of time in which to remedy the situation. The defendant testified that he vacated the premises at the end of August, 2003, at which time the plaintiff still had not taken any measures to remedy the water damage or mold and mildew in the basement. Although the plaintiff took some action in regard to some of the other defects referenced in the defendant's August 1, 2003 letter, the court found that he did not take adequate measures to remedy the water damage and the mold and mildew with the "urgency and intensity warranted by the scope and nature of the needed repairs . . . ." Those findings are supported adequately by the factual record. We conclude, therefore, that the court properly found that the defendant was constructively evicted. The judgment is affirmed. In this opinion the other judges concurred. On appeal, the plaintiff does not claim that the defendant's acceptance of the premises "as is" affected his constructive eviction claim. In addition to the constructive eviction claim, the counterclaim also included allegations that the plaintiff had (1) failed to repair defects, (2) failed to inform the defendant of the damage caused by the defects and (3) intentionally concealed defects. In its May 26, 2005 memorandum of decision, the court dismissed the remaining counts of the counterclaim. The plaintiff subsequently filed a motion for review of the court's articulation with this court. We granted the motion but denied the relief requested. The plaintiff claims that the court, improperly found that (1) the defendant did not breach the lease, (2) the plaintiff breached the lease by failing to remedy certain conditions, thereby resulting in a constructive eviction, (3) the entire property was uninhabitable, thereby resulting in a constructive eviction, and (4) the defendant did not breach the lease by failing to pay rent and abandoning the premises. We note that the defendant alleged common-law constructive eviction and was not seeking a statutory remedy predicated on the Landlord and Tenant Act (act), General Statutes § 47a-l et seq. The plaintiff urges this court to rely on the provisions of that act specifically set forth in Visco v. Cody, 16 Conn. App. 444, 450, 547 A.2d 935 (1988), in deciding the merits of his appeal. We decline to do so, as there is no indication in the plainly expressed language of the act to suggest that the legislature intended to supplant any common-law claim lor constructive eviction when it created a private cause of action under the act. As our Supreme Court has stated, " [although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993). Contrary to 1he assertions of the plaintiff, therefore, the provisions of the act are not relevant to his appeal. The plaintiff argues that the defendant failed to prove that the entire property was rendered uninhabitable. The plaintiff misapprehends what the defendant was required to prove for a common-law claim of constructive eviction. As our Supreme Court long ago established, "[a]ny disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in part, for the purposes for which they were leased amounts to a constructive eviction .'' (Emphasis added; internal quotation marks omitted.) Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 248, 161 A. 339 (1932). The defendant testified that he intended to use the basement as a bedroom for his three children, who stayed with him a couple of days during each week and on alternate weekends, and that this was made impossible because of the water damage and the presence of mold and mildew. In addition to testifying about the physical presence of water, the defendant testified that mold was growing on the children's clothing and bedding. The plaintiff argues that the absence of expert testimony renders the court's findings inadequate. We reject that argument. As our Supreme Court has stated in regard to the necessity of expert testimony, "[although expert testimony may be helpful in many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of the trier of fact. . . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters." (Internal quotation marks omitted.) State v. Smith, 273 Conn. 204, 211, 869 A.2d 171 (2005). In this instance, we are satisfied that the court was able to evaluate the condition of the basement without the need for expert testimony. Moreover, we note that the court's finding that the defendant again gave notice to the plaintiff of the water damage and the presence of mold and mildew in his letter dated August 1,2003, also supports the court's conclusion that the plaintiff was given a reasonable amount of time to remedy the situation.

Per Curiam. The judgment is affirmed.

Opinion STOUGHTON, J. This is an appeal by the defendant, Billy Jackson, who was convicted after a jury trial on four of the five counts against him. He was charged in a substitute information with two counts of attempt to commit murder, both in violation of General Statutes § 53a-49 and 53a-54a (a), one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), one count of attempt to commit assault in the first degree in violation of General Statutes § 53a-49 and 53a-59 (a) (5), and one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a). The jury found the defendant not guilty of one count of attempt to commit murder and guilty of all of the other charges. He has appealed from the judgment of conviction rendered on the verdict. On appeal, the defendant claims that the trial court improperly (1) denied his objection to the prosecutor's peremptory challenges of minority venirepersons and (2) precluded evidence of the violent character of one of the victims, and further claims (3) that he was denied a fair trial due to prosecutorial misconduct. We affirm the judgment of the trial court. The juiy reasonably might have found the facts set out hereafter. On the evening of September 21, 2002, the defendant was at an establishment in Bridgeport called the Small Games Club (club). The victim, Terry Mooney, and his friend, Troy Robinson, were also at the club. Sometime during the course of the evening, the victim was carrying some drinks from the bar to rejoin his friends when he bumped into the defendant. The club's bouncer noticed the incident and, later, when he heard the victim and the defendant arguing in the bathroom, escorted the defendant out of the club. The defendant remained outside the club. When the bar closed, the victim went outside to meet Robinson. The victim overheard the defendant, who was still outside the club, talking about him. The victim approached the defendant, whereupon an argument began. The victim saw the defendant reach into his pants and, thinking that the defendant was going to pull out a gun, punched the defendant. A fight developed between the two men, during which the victim was shot in the right thigh. The defendant then got up and shot Robinson. Robinson and the victim struggled with the defendant. The defendant fired again, and the bullet struck the victim in his right shoulder. At some point, it became apparent that the gun was no longer operable, whereupon the victim and Robinson left. The defendant was char ged, and the matter was tried to the jury. lie was convicted of one count each of attempt to commit murder, assault in the first degree, attempt to commit assault in the first degree and criminal possession of a firearm and received a total effective sentence of twenty years imprisonment. The defendant now makes three claims on appeal, each of which will be addressed in turn, with additional facts relevant to each claim set forth as necessary. I The defendant, who is African-American, first claims that the prosecutor's use of peremptory challenges to strike prospective jurors improperly discriminated against members of minority groups and deprived the defendant of a fair trial in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and State v. Holloway, 209 Conn. 636, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). We disagree. Before addressing the merits of the defendant's claim, we set forth the well established legal principles, recently reiterated by our Supreme Court, that govern our review. "Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson's removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party's] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. . . . "We have identified several specific factors that may indicate that [a party's removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. [One of these factors is whether] the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender], . . . "Finally, the trial court's decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court's evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court's determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) State v. Latour, 276 Conn. 399, 408-10, 886 A.2d 404 (2005). The following additional facts are relevant to our resolution of the defendant's claim. The record shows that a jury of six persons with two alternates was selected for the defendant's trial. The jury selection for the defendant's trial took place over four days, during which forty-seven venirepersons were sworn. Of the forty-seven venirepersons sworn, twenty-seven were dismissed by the court for cause, leaving a pool of twenty eligible venirepersons. In total, the state exercised five of its peremptory challenges, four of which were challenged by the defendant as discriminatory under Batson. The court heard the parties' arguments and considered the merits of the defendant's Batson challenges as each was raised. The court determined that the first three Batson claims raised by the defendant were without merit. Regarding the fourth Batson challenge, the court made no explicit finding of discriminatory intent, but nevertheless rejected the state's reasoning for challenging the prospective juror and sat her as an alternate. On appeal, the defendant asserts that the court's denial of his objection to the state's three peremptory challenges was clearly erroneous because (1) the nondiscriminatory reasons given by the state for each challenge were pretextual, and (2) the court made an implicit finding of pretext in the state's peremptory challenge when it chose to seat the alternate juror, M, which, combined with the state's disproportionate number of challenges against minority venirepersons, required the court to reexamine more closely the state's motives with regard to the other three challenges. The defendant asks that this court vacate his conviction and order a new trial. A We first address the propriety of the state's exercise of each of the three peremptory challenges that gives rise to the defendant's Batson claims. We conclude that, with respect to each challenge, the court's rejection of the defendant's Batson claim was not clearly erroneous. 1 Venireperson R On the first day of jury selection, the state exercised its first peremptory challenge to remove R, an African-American female, from the venire panel. The defendant asked for the expression of a race neutral reason for the challenge, whereupon the state proffered several concerns. The prosecutor noted that R (1) had difficulties understanding the burden of proof, initially indicating that she would require absolute certainty to convict for a serious crime, (2) thought she had been unfairly treated by police when she had been arrested in New York for operating under a suspended license and (3) had a nephew who had stabbed somebody in New York. The defendant then sought to rebut the state's proffered reasons. After hearing the parties' arguments, the court rejected the defendant's Batson challenge. In support of its ruling, the court noted that R had made inconsistent statements with respect to her feelings about her encounter with police and about whether she would be able to hold the state to the applicable burden of proof. We agree with the state that the record supports the court's finding that the reasons given by the prosecutor for excusing venireperson R were legitimate. The state's first reason for exercising its peremptory challenge, which was that R had difficulty understanding the state's burden of proof, has been recognized by our courts as a valid, nondiscriminatory reason for excusing a venireperson. See State v. Hodge, 248 Conn. 207, 232-33, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). Regarding the state's second and third bases for challenging R, we note that "[prosecutors commonly seek to exclude from juries all individuals, whatever their race, who have had negative encounters with the police because they fear that such people will be biased against the government. . . . [Tjhis concern constitutes a neutral ground for the state's exercise of a peremptory challenge . . . ." State v. Smith, 222 Conn. 1, 14, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992). The court determined that the reasons proffered by the prosecutor were not pretextual. "Cognizant of our inability to consider [the venireperson's] credibility in the calculus on appeal, we give great deference to the ruling of the trial court in this regard." Id., 15. 2 Venireperson G The state's second peremptoiy challenge was to G, an African-American male, on the second day of voir dire. The defendant moved to have the prospective juror seated under Batson. When asked to proffer a nondis criminatory reason for the challenge, the prosecutor stated that he believed that the substance of G's responses to questioning indicated (1) that he would hold the state to a higher burden of proof and (2) that he had a lack of respect for the state's case. The defendant responded by contesting the state's characterization of G's answers. The court, in ruling on the Batson challenge, considered G's testimony and concluded that, although in its view, G's difficulty with the reasonable doubt standard had been straightened out, his testimony was inconsistent enough for the state to "feel a little uncomfortable" with seating him as a juror. Indeed, "[a] prosecutor, when exercising a peremptory challenge to remove a venireperson, may legitimately [base that decision] not only on answers given by the prospective juror to questions posed on voir dire, but also on the prosecutor's observations of the prospective juror. An impression of the conduct and demeanor of a prospective juror during the voir dire may provide a legitimate basis for the exercise of a peremptory challenge. . . . Thus, a prosecutor's explanation that a venireperson was excluded because he or she seemed, for example, inattentive or hostile to the government, if credible, is sufficient." (Internal quotation marks omitted.) State v. Clark, 62 Conn. App. 182, 200, 774 A.2d 183 (2001), aff'd, 260 Conn. 813, 801 A.2d 718 (2002). The court found the prosecutor's legitimate, nondiscriminatory reason to be credible. In making that determination, the court carefully reviewed the racial composition of the jury pool, noting that the prosecutor had excused only one other African-American venireperson and that another African-American had been accepted onto the jury panel. The court stated that it saw no discriminatory pattern and assured the defendant that it would continue to watch closely to see if a pattern did emerge. Because there is evidence in the record to support the court's conclusion that the peremptory challenge of G was not motivated by race, we cannot say that the court's decision was clearly erroneous. 3 Venireperson A The third venireperson peremptorily excused by the state was A, a Hispanic female. The defendant moved to have her seated under Batson. The prosecutor expressed his concern over A's ability to judge fairly the credibility of the police officers who would be testifying at trial, on the basis of her statement that she had a family member who she believed had been treated unfairly by the police, and the troubling laugh she had made during that response. In rebuttal, defense counsel did not dispute the fact of A's statement to that effect, but argued that despite that statement, she had stated that she was satisfied with the way in which the family member's case was resolved. The court reviewed A's testimony and determined that, in light of the importance of the police testimony to the case, the reason given by the state for the challenge was not pretextual and was valid. The court was correct in concluding that the prosecutor's basis for exercising the challenge was legitimate. "Courts consistently have upheld the use of peremptory challenges to excuse a venireperson with a close relative who has been prosecuted because of the real possibility that the venireperson may harbor resentment against prosecuting authorities generally." State v. Hodge, supra, 248 Conn. 231. The court again reviewed the composition of the jury pool for evidence of a discriminatory pattern. It observed that A was the third Hispanic venireperson to be called and that she was the first Hispanic venireperson to be peremptorily challenged by the state and concluded that there was no pattern of discrimination. The court found that the state's reason for challenging A was not pretextual, which we cannot conclude was clearly erroneous. B The defendant raised a fourth Batson challenge to the state's exercise of its fifth peremptory challenge against M, a Hispanic woman. The court, after hearing arguments for and against the challenge, decided to seat M as an alternate juror. On appeal, the defendant claims that the court's seating of M constituted a finding of pretext and that, on the basis of that finding, the court should have revisited its rulings on the three prior Batson challenges. The defendant contends that the court's failure to reconsider its three prior Batson rulings amounted to a structural error warranting a new trial. We disagree that the court was required to revisit its prior Batson rulings and conclude that the defendant's failure to request reconsideration of those rulings renders our record inadequate for review of his claim. The following additional facts are relevant to the defendant's claim. In response to the defendant's motion to seat M under Batson, the prosecutor proffered a nondiscriminatory reason for the challenge. He stated that his problem with M was solely due to her limited education and inability to understand and communicate in the English language. Counsel for the defense, in rebuttal, argued that M had responded correctly to all of the questions asked of her and had showed no inability to understand the English language. In response to the defendant's motion to seat M as an alternate, the court made the following ruling: "The mere fact of [her] seventh grade education in itself is certainly not a per se disabling circumstance. She . . . seems quite bright. . . . She did indicate that she didn't understand some of what I said. She indicated that the first time through. Then, the second time through, she said that she did understand everything. . . . She, in my mind, answered the . . . questions . in a reasonable manner and in an intelligent manner . . . and I don't find that there is any reason that she . . . not be accepted. . . . [T]here are no Hispanics on the jury. She is the fourth Hispanic to come up. One was for cause, one was excused by the defendant, and this is the second female excused by the state. I don't find any reason in her answers that she . . . should be excused, and therefore I'm going to seat her as a second alternate." The defendant claims that the court's ruling to seat M constituted a finding of pretext for discrimination because it was made in response to his Batson challenge. The state argues that the court did not make a finding of discrimination when it sat M but treated the state's challenge as one for cause. Even if we assume arguendo that the court did make a finding of pretext when it sat M as an alternate juror and that such a finding was proper, the defendant's claim cannot suc ceed because, following the court's seating of M, defense counsel did not request that the court reconsider its three prior Batson rulings in light of the newly transpired events. Our Supreme Court has made clear that a court, after seating a juror in response to a motion under Batson, is not required to revisit, sua sponte, its prior Batson rulings. "[T]he defendant, not the trial court, properly bears the burden of raising the issue of whether the court's subsequent finding of pretext calls into question the validity of the court's earlier rulingfs] upholding the state's use of a peremptory challenge against a previous venireperson. Of course, if warranted under the circumstances, the trial court may, sua sponte, reconsider its previous ruling rejecting the defendant's earlier Batson challenge. Moreover, the defendant is free to seek reconsideration of any such ruling at any time prior to the conclusion of jury selection. See State v. Robinson, [237 Conn. 238, 250, 676 A.2d 384 (1996)]. In light of the significant period of time that it often takes to select a jury and the large number of potential jurors frequently involved in that process, however, it would be unfair to require the court to undertake a sua sponte review of its prior Batson ruling or rulings solely because the court thereafter determines that, with respect to a subsequent venireperson, the prosecutor's explanation for exercising a peremptory challenge does not pass muster under Batson." (Emphasis in original.) State v. Mukhtaar, 253 Conn. 280, 292, 750 A.2d 1059 (2000). Following the court's seating of M, defense counsel did not ask the court to revisit its rulings regarding the three prior Batson challenges. Defense counsel was obligated to make known to the court his new claim under Batson, which was predicated on additional facts that were unavailable at the time the court made its prior rulings. A defendant waives his right to make a particular Batson claim when he fails to make that claim before the jury has been sworn. State v. Robinson, supra, 237 Conn. 250. Further, pursuant to State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), appellate courts will not review unpreserved Batson claims that require a predicate factual determination. See State v. Hodge, supra, 248 Conn. 228 ("[b]ecause a disparate treatment claim raises factual questions that must be decided by the trial court, the defendant's failure to raise the claim in the trial court is fatal to his claim on appeal"); see also State v. Young, 76 Conn. App. 392, 399, 819 A.2d 884, cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003). Accordingly, we decline to review the defendant's claim. II During his case-in-chief, the defendant offered the opinion testimony of Terry Rankin, an acquaintance of the defendant and frequent patron of the club, for the purpose of establishing that the victim had been the aggressor in the altercation. The court determined that the -witness was not qualified to give an opinion as to the victim's character. The defendant, in his second claim on appeal, contends that the court abused its discretion in excluding the testimony. We do not agree. The following additional facts assist us in resolving the defendant's claim. The court held a hearing outside the presence of the jury to determine whether there was an adequate foundation for Rankin to state his opinion as to whether the victim had a propensity for violence. At the hearing, Rankin testified that he knew the victim only by sight, having seen him at least six times at the club. He stated that each time he had observed the victim at the club, the victim appeared intoxicated and argumentative and that on two occasions he had seen the victim escorted out of the club for behaving aggressively toward other patrons. Rankin admitted that although he had observed the victim strike the defendant on September 21, 2002, that was the only time he had seen the victim exert physical force on another person in the club. Following this testimony, the court determined that the defendant had laid an adequate foundation that he had acted in self-defense with respect to the victim. The court then considered the defendant's offer of proof concerning Rankin's knowledge of the victim's violent character. The court observed that although Rankin testified that he had seen the victim approximately six times at the club, he had seen him behave aggressively on only two occasions. The court determined that those two observations were not sufficient for Rankin to have formed an opinion as to the victim's propensity for violence. Accordingly, the court refused to permit Rankin to offer an opinion as to the victim's violent character. Section 4-4 (a) (2) of the Connecticut Code of Evidence permits the accused in a homicide or criminal assault case, after laying a foundation that he acted in self-defense, to offer evidence of the violent character of the victim to prove that the victim was the aggressor. See State v. Whitford, 260 Conn. 610, 638, 799 A.2d 1034 (2002). "Subsection (b) of § 4-4 provides that proof of the victim's violent character may be made through reputation or opinion testimony or by evidence of the victim's conviction of a violent crime." Id. "A party seeking to present opinion testimony must demonstrate that its witness has had sufficient contact with the [person] who is the subject of the opinion and, on the basis of such contact, has formed an opinion with regard to that person's [character]." State v. Holley, 90 Conn. App. 350, 368, 877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005); see also State v. Egan, 9 Conn. App. 59, 63, 514 A.2d 394 ("[t]o lay an appropriate foundation for the introduction of opinion testimony, a party must show that the witness providing the testimony has a deliberate opinion formed as the result of personal contact and experience" [internal quotation marks omitted]), cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). "Whether a witness has had sufficient contact with a person to be qualified to testify as to a particular character trait is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law." (Internal quotation marks omitted.) State v. Holley, supra, 368. "Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. . In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." (Internal quotation marks omitted.) Pasiakos v. BJ's Wholesale Club, Inc., 93 Conn. App. 641, 646, 889 A.2d 916, cert. denied, 277 Conn. 929, 896 A.2d 101 (2006). To prove that the court's abuse of discretion was harmful, the defendant must demonstrate that the court's ruling either more probably than not affected the result of his trial or was so substantial as to undermine confidence in the fairness of the verdict against him. See State v. Gonzalez, 272 Conn. 515, 527, 864 A.2d 847 (2005). We conclude that the court did not abuse its discretion in determining that Rankin had not had sufficient contact with the victim to form the basis for an opinion as to his violent character. Compare State v. Holley, supra, 90 Conn. App. 369 (held that court did not abuse discretion in disallowing opinion evidence for lack of sufficient foundation when witness had had only two instances of contact with victim). Even if the proposed testimony had been sufficient to demonstrate Rankin's knowledge of the victim's character, however, the defendant has not shown that the exclusion of the evidence caused him harm. See State v. Gonzalez, supra, 272 Conn. 527. Rankin's testimony regarding the victim's propensity for violence was simply not necessary because both parties agreed that the victim had been the aggressor. The victim himself admitted numerous times throughout his testimony at trial that he had thrown the first punch during his fight with the defendant, based on his belief that the defendant was reaching in his pants for a gun. The defendant also had the opportunity to testify that the victim had been the aggressor. The defendant testified that he was not reaching for a gun and that the victim had approached him outside of the club without provocation. Given the foregoing testimony elicited at trial, the jury was free to conclude that the victim had been the aggressor and that the defendant had acted in self-defense when he shot the victim. Although the jury rejected the theory that the defendant had acted in self-defense, we cannot say that the result would have been different had the court allowed the opinion testimony. Ill The defendant's final claim is that during the course of final argument to the jury, the prosecutor engaged in repeated and strident misconduct by misstating the evidence and expressing a personal opinion as to the defendant's credibility. The defendant claims that prosecutorial misconduct deprived him of a fair trial under the state and federal constitutions. We do not agree. "As apreliminary matter, we set forth certain relevant legal principles that guide our resolution of this issue. Our Supreme Court has advised that [t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . In analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. . . . Because most of the claimed prosecutorial misconduct occurred during closing argument, we set forth the applicable legal principles. "[P]rosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. . In determining whether such misconduct has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. Boyd, 89 Conn. App. 1, 29-30, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005). "Only if we conclude that prosecutorial misconduct has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial." State v. Schiavo, 93 Conn. App. 290, 302, 888 A.2d 1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006). With the foregoing in mind, we now turn to the defendant's specific claims. The defendant refers to remarks made by the prosecutor on three occasions that the defendant claims deprived him of a fair trial. We read each of the defendant's claims to allege the same type of misconduct, namely, that the prosecutor stated his opinion regarding the defendant's credibility and motivation to lie. Accordingly, we initially set forth our rule of law with respect to this particular type of misconduct. "There is no rule that precludes a prosecutor from challenging a defendant's testimony. The issue is whether the prosecutor's argument took the form of a fair criticism of a defendant's credibility on the basis of the evidence or if it reflected merely the prosecutor's personal opinion of the defendant's credibility. . . . Our jurisprudence instructs that a prosecutor may comment on a witness' motivation to be truthful or to lie." (Citation omitted; internal quotation marks omitted.) State v. Pedro S., 87 Conn. App. 183, 198, 865 A.2d 1177, cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005). "While a prosecutor may not interject personal opinion about the credibility or truthfulness of a witness, he may comment on the credibility of the witness as long as the comment reflects reasonable inferences from the evidence adduced at trial." (Internal quotation marks omitted.) State v. Jacobson, 87 Conn. App. 440, 459, 866 A.2d 678, cert. granted on other grounds, 273 Conn. 928, 873 A.2d 999 (2005). A The defendant first alleges that the prosecutor's comments regarding the defendant's demeanor and gait constituted misconduct. During the state's closing argument, the prosecutor described the defendant's physical demeanor, noting that the defendant, on his way to the witness stand, "walked with a very pronounced and deliberate limp." The defendant claims that the prosecutor's use of the word "deliberate" reflected the prosecutor's opinion and improperly suggested to the jury that the defendant was fabricating a physical disability to support his defense. We disagree. At trial, the defendant testified that he suffers from nerve damage in his right foot, which causes him to walk with a limp. In his closing argument, the prosecutor pointed out the inconsistencies between the defendant's testimony regarding the limitations his disability imposed on him and the testimony of other witnesses indicating that the defendant had been dancing inside the club and actively had engaged in an altercation with the victim on the night in question. We agree with the court that the remark was based on the evidence and observations that the jury might make as to the demeanor and credibility of the defendant. The prosecutor's suggestion that the defendant's disability did not interfere with his ability to engage in the conduct of which he was accused was relevant to the state's case and was a reasonable inference that was based on the evidence adduced at trial. B The defendant next claims that the prosecutor engaged in misconduct by suggesting that the defendant tailored his testimony to fit the physical evidence of a tom shirt worn by Robinson on the night of the altercation. The defendant's primary theory of defense was that he had not been the shooter. He claimed instead that Robinson had possessed the gun and that the gun accidentally had fired during the altercation. In support of his theory, the defendant testified that he had ripped Robinson's shirt with his left hand as Robinson was on top of him, holding him by the neck with one hand and attempting to shoot him with the other. In his closing argument, the prosecutor sought to rebut this theory. Indeed, the remarks made by the prosecutor implied that the defendant had tailored his testimony to fit with the physical evidence of the ripped shirt. The prosecutor is permitted to make such an inference, however, when, as here, he did not state his personal opinion regarding the defendant's credibility, but raised the evidence presented at trial in a way that cast light on its weaknesses. See State v. Pedro S., supra, 87 Conn. App. 199 ("[b]ecause the prosecutor based her comments on the evidence and asked the jury to use its common sense in evaluating the evidence in light of the defendant's likely motives, the argument was proper"). Consequently, the prosecutor's statements in this regard did not constitute misconduct. C Finally, the defendant complains that the prosecutor improperly expressed an opinion on the defendant's credibility when arguing to the jury that the reason why the defendant had not claimed self-defense was because, as a convicted felon, he could not admit to possessing a weapon. Both parties were aware that the court was planning to instruct the jury on the issue of self-defense, and both parties addressed the issue in their closing arguments to the jury. The prosecutor cor rectly pointed out that the defendant had not presented any evidence regarding the use of deadly force against him and tied that fact to information he had elicited from the defendant on cross-examination, i.e., that the defendant was aware that as a convicted felon he was not permitted to carry a weapon. There is no language indicating that the prosecutor sought to present a personal opinion regarding the defendant's motivation to lie. Accordingly, we conclude that the prosecutor's argument was proper and was a reasonable inference that was based on the evidence adduced at trial. Under controlling case law, it is overwhelmingly clear that none of the complained of remarks was improper. As such, we need not inquire into whether these remarks were harmful to the defendant. See State v. Schiavo, supra, 93 Conn. App. 302. The judgment is affirmed. In this opinion the other judges concurred. For each venireperson, we use that individual's initial to protect his or her legitimate privacy interests. See, e.g., State v. Peeler, 267 Conn. 611, 620 n.9, 841 A.2d 181 (2004). A review of the transcript indicates that during voir dire, the prosecutor asked G whether, given the seriousness of the crimes charged, he would need to be 100 percent convinced of the defendant's guilt in order to convict. In response, G stated that, given the seriousness of the charges, he would expect that the state "would have its stuff together," that a guilty verdict means that "you're going to be putting someone away for a long time" and that he would assume that the state would not be coming at it "half-cocked . . . ." After an objection by the defense to the state's continued questioning of G on the topic, the court intervened and asked G whether he would be able to follow the court's instructions regarding the burden of proof despite the serious charges of the case. G answered that he would follow the instructions of the court. Specifically, the court made the following ruling with respect to the challenge: "I found [G] to be quite good. I think he answered the questions very well, forthright. There was some difficulty with reasonable doubt. There was some difficulty, which I think eventually was straightened out, but questions revolving around that particular subject, while they were straightened out and would not put the state in a position where [it] could ask for the venireperson to be excused for cause. I think it is enough for the state to perhaps feel a little uncomfortable. And based on the prior rulings by this court and the choices made by the state, I feel that that is an adequate nonracial reason for exercising the peremptory challenge at this point." On the third day of voir dire, the state exercised its fourth peremptory challenge against J, a Caucasian female, which was not contested by the defendant. To the extent that the defendant argues that the court, after seating M and observing that 80 percent of the peremptory challenges exercised by the state were against minority venirepersons, should have ordered a new trial, we have stated that "when a defendant is found to have sustained his burden of showing a Batson violation, the better practice is to leave it to the discretion of the trial court to fashion the appropriate remedy, depending on the circumstances of the particular case." State v. Morales, 71 Conn. App. 790, 813 n.27, 804 A.2d 902, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). Further, assuming that the court properly found that the state had committed a.Batson violation, the defendant cannot escape the fact that he received the exact remedy that he had requested at trial. See id. The defendant moved to seat M on the jury panel, and the court granted that motion. When the court asked defense counsel, "You want her to sit . . . ?" Defense counsel answered, "Yes, Your Honor." Following that exchange, defense counsel made no motion pursuant to Batson to strike the entire jury panel and begin the process anew. The prosecutor cited, in particular, M's statements that she could not understand parts of the juror orientation film and some of the judge's comments. He expressed his concern that M would have difficulty understanding the technical testimony of the expert witnesses and communicating adequately with the other jurors during their deliberations. Nonetheless, on this record it appears that the court's decision to seat M was predicated on an improper application of Batson. See State v. Mukhtaar, 253 Conn. 280, 291 n.13, 750 A.2d 1059 (2000). It appears that the court decided to seat M because it disagreed with the prosecutor's reasons for exercising the peremptory challenge. The record clearly indicates that M stated that she had difficulty understanding and communicating in English. The court acknowledged her testimony to that effect, yet decided to seat M, stating that it disagreed that she would be unable to participate adequately as a juror. The relevant inquiry, however, was not whether the court agreed with the state's proffered reason, but whether the reason was legitimate and not a pretext for discrimination. See State v. Wright, 86 Conn. App. 86, 96-97, 860 A.2d 278 (2004). The court made no explicit finding of pretext, however, and its analysis regarding the absence of a Hispanic juror on the panel suggests that it was concerned more with seating a Hispanic venireperson than with preventing the state from improperly exercising a challenge. Despite the defendant's contention otherwise, the court expressly made this determination. It stated: "The exception in § 4.4 (a) (2) [of the Connecticut Code of Evidence], again, reads . . . [e]vidence offered by an accused in a homicide or criminal case . . . after laying a foundation that the accused acted in self-defense, which there has been such a foundation laid as to this particular victim . of the violent character of the victim to prove that the victim was the aggressor . . . ." (Emphasis added.) Connecticut Code of Evidence § 4-4 provides in relevant part: "(a) Character evidence generally. Evidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion, except that the following is admissible . . . "(2) Character of the victim in a homicide or criminal assault case. Evidence offered by an accused in a homicide or criminal assault case, after laying a foundation that the accused acted in self-defense, of the violent character of the victim to prove that the victim was the aggressor, or by the prosecution to rebut such evidence introduced by the accused. ." Connecticut Code of Evidence § 4-4 (b) provides: "Methods of proof, hi all cases in which evidence of a trait of character of a person is admissible to prove that the person acted in conformity with the character trait, proof may be made by testimony as to reputation or in the form of an opinion. In cases in which the accused in a homicide or criminal assault case may introduce evidence of the violent character of the victim, the victim's character may also be proved by evidence of the victim's conviction of a crime of violence." The state contends that the defendant cannot claim that he was deprived of the opportunity to present a defense because the defendant, when asked by the court whether he wanted the jury to be charged on the initial aggressor theory of self-defense, stated that he did not care either way. We do not agree that the defendant was prevented from presenting such evidence. A party is permitted to present multiple and inconsistent theories in support of its defense. The court clearly found that such a foundation existed when it informed the parties that it was inclined to charge on self-defense on the basis of the victim's testimony that it was he who had first punched the defendant because of his fear that the defendant was reaching for a gun. Because the court had determined that an adequate foundation existed for the defendant to raise a self-defense claim, the defendant was free to introduce evidence in support of that claim. The fact that defense counsel had no opinion as to the charge is of no consequence. The prosecutor further stated: "He walked with a very pronounced limp. He had to rest on the lectern here, on the podium. Every time he got up to support his weight, because he wants you to think that he's not capable of engaging in this violent altercation that he claimed happened." Defense counsel objected to the prosecutor's argument, and the court overruled the objection. Defense counsel then moved for a mistrial on the basis of the prosecutor's characterization of the defendant's disability, which the court also denied. The following testimony was elicited by the state during its cross-examination of the defendant: "[The Prosecutor]: Now, when you've been moving back and forth around these various demonstrations, you walk with a pronounced limp; isn't that right? "[The Defendant]: Yes. "[The Prosecutor]: You have a hard time getting around? "[The Defendant,]: Hard time. I'm wearing a brace, too. "[The Prosecutor]: So, that leg does not interfere with your ability to engage in . . . physical activity, does it? "[The Defendant]: Yes, it do[es], when it moves." Conflicting testimony had been presented regarding whether the defendant had danced with a woman named Sophie that evening at the club and whether the altercation between the defendant and the victim was motivated by competition over Sophie's affections. The defendant cites the following remarks by the prosecutor as improper: "And I especially love the physical evidence pertaining to the shirt and the story that was attempted to be told to you by the defendant,. The shirt that they continued to show you; first of all, they were very clear to tell you that it was a reach back with the left hand and a reach around by the right hand. That enabled two things. It enabled [the defendant] to say that he saw a weapon, number one; and number two, it also is a way for the defendant's attorney to try to convince you that this rip here was a left sided grab."

Opinion SCHALLER, J. The plaintiff, Edward S. O'Briskie, appeals from the judgment of the trial court, rendered after the jury verdict in favor of the defendant, John J. Berry, in a negligence action arising out of a motor vehicle accident. On appeal, the plaintiff claims that the court improperly (1) denied his motions for a mistrial and for a new trial and to set aside the verdict, which were based on alleged juror bias or partiality, and (2) denied his motion for a new trial and to set aside the verdict because the verdict was against the weight of the evidence. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On February 6, 2001, the defendant left his home in Wallingford and drove to Mount Southington, a ski resort, where he worked as a ski instructor. There had been a snowstorm on the previous day. At approximately 7 p.m., the defendant left the ski area and headed home, stopping to run some errands on the way. The defendant drove a four wheel drive vehicle but did not have his vehicle in four wheel drive on his way home. While driving home, the defendant took a series of highways, all of which were clear of snow. He then turned onto Cook Hill Road in Cheshire where he traveled in an easterly direction for three miles. Cook Hill Road was also clear of snow. The defendant, however, eventually encountered an area of the roadway that was covered in a hard packed mixture of snow and slush. While traveling on this surface at approximately thirty miles per hour, the defendant experienced no traction problems until his car suddenly began to slide. The defendant unsuccessfully attempted to maneuver his vehicle to regain control. The defendant did not apply his brakes while his vehicle was sliding because he believed that braking on this surface would cause his vehicle to continue to slide. The defendant's vehicle crossed over the center line into the westbound travel lane and collided with the plaintiff s vehicle. The defendant testified that had he been traveling more slowly, the accident might not have occurred, but, at the time, he believed that he was traveling at a safe speed. Further facts will be set forth as necessary. I The plaintiff first claims that the court improperly denied his motions for a mistrial and for a new trial and to set aside the verdict, which were based on alleged jury bias. The plaintiff asserts that the jury was biased in one of two ways. First, two jurors informed the court, after the first day of trial, that they either recognized the defendant or may have come into contact with him in the past. After hearing this, the court discharged the two jurors If om service and swore in two alternates. The plaintiff contends that the extent to which these two jurors may have "tainted" the rest of the jury with their knowledge of the defendant is unclear and that, without this knowledge, the plaintiff was deprived of a fair trial. Second, the plaintiff argues that a juror who remained on the jury recognized the trial judge, and this fact, combined with an alleged sarcastic comment by the court to the plaintiffs counsel, biased the jury in favor of the defendant. We are not persuaded. The following additional facts are relevant to this issue. In January, 2003, the plaintiff commenced this action, alleging that his injuries and damages were a result of the foregoing accident on February 6, 2001. The case was tried to the jury from January 11 through 13, 2005. On the first day of trial, both the plaintiff and the defendant testified. At the beginning of the second day of trial, two jurors informed the court that they might have encountered the defendant previously. The court then inquired into the extent of each juror's familiarity with the defendant. The first juror told the court that when the defendant began testifying, and provided his address, she realized that she had a family member who lived on the same street as the defendant. In addition, both the defendant and her relative had children approximately the same age, and she said that she might have encountered the defendant at her relative's house. The juror testified, however, that she did not recognize the defendant. In response to an inquiry by the court, the juror indicated that she might be concerned with the defendant's feelings depending on the outcome of the trial and that this could affect her deliberations in the jury room. Nevertheless, the juror believed that she could remain fair and impartial. Counsel for both parties declined the opportunity to inquire further. The second juror revealed that he thought he recognized the defendant from a prior place of employment. The juror then stated that he might feel uncomfortable sitting as a fair and impartial juror. Once again, counsel for both parties were given an opportunity to inquire and both declined to do so. The defendant's counsel then informed the court that the defendant had mentioned that the second juror looked familiar to him as well. The court discharged both jurors from service. The plaintiffs counsel moved for a mistrial at this point, claiming that he could not be sure that these jurors had not spoken to the other members of the jury about their knowledge of or familiarity with the defendant and, thus, the plaintiff could not be assured of a fair trial. The court attempted to retrieve the excused jurors to inquire further. The second excused juror was found and brought back into the courtroom. The juror stated that he had told other members of the juiy that he recognized the defendant, but indicated nothing more. The plaintiffs counsel then asked if any other jurors had mentioned anything with respect to any of the parties. The second excused juror responded that the first excused juror told him that she had recognized the defendant on their way out but that he did not hear' her mention anything in front of the other jurors. The first excused juror was not found for additional questioning. Subsequently, the court denied the plaintiffs motion for a mistrial and the trial resumed. Our standard for review of a trial court's decision on a motion for a mistrial and a motion to set aside a verdict is the same. See Matthiessen v. Vanech, 266 Conn. 822, 845, 836 A.2d 394 (2003); Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980). "Our review of the trial court's action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correct ness . . . since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence." (Citations omitted.) Palomba v. Gray, 208 Conn. 21, 24-25, 543 A.2d 1331 (1988). "In reviewing juror misconduct, we use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors." (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 523, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003). The extent of an inquiry into alleged juror bias is within the court's discretion. Id., 522; see also State v. Brown, 235 Conn. 502, 523-24, 668 A.2d 1288 (1995) (en banc). Our review is, therefore, limited to whether the court abused this discretion. See State v. Brown, supra, 524 ("trial judge's discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and . . . not to impede or defeat the ends of substantial justice" [internal quotation marks omitted]). In the present case, the court conducted a preliminary inquiry by individually questioning each allegedly biased juror. Following this inquiry, the court proceeded to dismiss the jurors from service. We see nothing improper with the way the court conducted its inquiry in this instance. A The plaintiff claims that the jury bias stems from the possibility that the two dismissed jurors may have discussed the defendant with the remaining members of the jury during any of the recesses taken during the first day of trial. The plaintiff claims that "it is impossible to know what else was said regarding the [defendant." "[T]o succeed on a claim of bias the defendant must raise his contention of bias from the realm of specula tion to the realm of fact." (Internal quotation marks omitted.) State v. Myers, 242 Conn. 125, 141, 698 A.2d 823 (1997). The plaintiff has failed to raise his contention to the realm of fact. The plaintiffs counsel made the tactical decision not to question the two excused jurors regarding their conversations with the remaining jury members, to determine whether the jury had been tainted, before they officially were discharged. The court then brought the two jurors into the courtroom to discharge them. After they left, the plaintiff made his motion for a mistrial. Despite the fact that counsel had declined to question the two jurors when given the opportunity, the court sent personnel to scour the courthouse in an effort to locate the dismissed jurors and to inquire as to their respective conversations, if any, with other jurors. The second excused juror was located and during additional inquiry informed the court that he had "just said [to the other members of the jury] that I recognized [the defendant]. . . . That was it." The juror also stated that no one else said anything in response and that he did not hear the other dismissed juror say anything to the other members of the jury. She told him only that she recognized the defendant on their way out. No information produced as a result of this inquiry raised the plaintiffs speculation as to jury bias to the realm of fact. Despite the fact that one juror mentioned that he recognized the defendant, we fail to see how this could be construed as biasing the other members of the juiy in favor of the defendant. We conclude that the court did not abuse its discretion in denying the plaintiffs motions for a mistrial and to set aside the verdict and for a new trial on the plaintiffs first claim of juror bias. B The plaintiff next claims that the court improperly denied his motion for a new trial and to set aside the verdict. The plaintiff specifically argues that the court's "sarcastic" comment during his rebuttal closing argument, combined with a juror's recognition of the trial judge, biased the jury in favor of the defendant. We disagree. At the beginning of the plaintiffs rebuttal closing argument, counsel engaged in the following colloquy with the court: "[The Plaintiffs Counsel]: Your Honor, may I respectfully inquire as to the amount of time I have left? "The Court: Twenty — about twenty-five minutes. "[The Plaintiffs Counsel]: Thank you, Your Honor. "The Court: You don't — don't feel that you have to use them all." After the jury had retired to deliberate, one juror informed the court that she was a neighbor of the judge and that she had seen him walking, running or jogging in the neighborhood. The plaintiff contends that this fact together with the court's alleged sarcastic comment tainted the jury and biased it in favor of the defendant. The plaintiff did not object to the comment by the court or allege any bias on the part of the juror who recognized the judge, or the jury as a whole, at any point prior to the verdict. As previously stated, the standard by which we determine whether the court improperly denied a motion to set aside the verdict is whether the court abused its discretion in so ruling. Palomba v. Gray, supra, 208 Conn. 24-25. The plaintiff concedes in his brief that a juror's recognition of a trial judge alone would not demonstrate bias toward a party but argues that this recognition, combined with a comment that may have sarcastic undertones, demonstrated juror bias toward the defendant. In its jury instructions following closing arguments and the allegedly sarcastic comment, the court stated in relevant part: "I don't have any preference as to the outcome of this case. I have not meant to convey by facial expression or tone of voice or in any other way at any time during the trial any preference or inclination as to how you should decide the facts." (Emphasis added.) "Our jurisprudence is clear . . . that unless there is a clear indication to the contrary, a jury is presumed to follow the court's instructions." PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 335, 838 A.2d 135 (2004). Even if, as the plaintiff claims, the comment could be deemed sarcastic and caused the jury to infer that the plaintiffs remaining argument was unworthy of attention, the court instructed the jury to disregard any possible tone that could convey the court's favoring of one party over another. The presumption that the jury followed these instructions defeats any claim of jury bias here. II Finally, the plaintiff claims that the court improperly denied his motion to set aside the verdict as being against the weight of the evidence. As previously noted, the proper standard of appellate review of the denial of a motion to set aside a verdict is whether the court abused its discretion. Palomba v. Gray, supra, 208 Conn. 24-25. "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict. . . . The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness." (Citation omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988). "A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence. . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. . In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled." (Citations omitted; internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 582, 785 A.2d 253 (2001); see also Harris v. Clinton, 142 Conn. 204, 209-10, 112 A.2d 885 (1955). The plaintiff asserted multiple grounds in his complaint on which the jury could have found the defendant negligent. On appeal, he argues that the jury verdict was against the weight of the evidence in three ways. First, the plaintiff argues that the evidence clearly showed that the defendant was statutorily negligent in failing to abide by General Statutes § 14-218a. Second, he argues that the evidence clearly showed that the defendant was statutorily negligent in failing to abide by General Statutes § 14-231. Finally, the plaintiff contends that the evidence clearly showed that the defendant was negligent under the common law. We conclude that the jury reasonably could find that there was insufficient evidence that the defendant was negligent in any of these respects. "In order to predicate a recovery on the ground of statutory negligence, two elements must coexist. . . . [T]he violation of the statute must constitute a breach of duty owed to the plaintiff. . . . Second, a plaintiff must prove that the violation of the statute . . . was a proximate cause of his injuries." (Internal quotation marks omitted.) Blancato v. Randino, 33 Conn. App. 44, 48, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 (1993). A Section 14-218a prohibits a person from operating his motor vehicle at a rate of speed greater than reasonable under all conditions of the roadway. Construing the evidence in the light most favorable to the defendant, the jury reasonably could have found that the defendant did not operate his vehicle at an unreasonable speed under the conditions and did not violate his statutory duty. After driving his motor vehicle on a series of roadways that were clear of snow despite a snowstorm the previous day, the defendant encountered a patch of snow and slush. The posted speed limit was thirty-five miles per hour. The defendant was operating his vehicle at thirty miles per hour. While driving over this snowy patch of the roadway, the defendant did not experience any traction problems until his vehicle suddenly began to slide. The jury reasonably could have concluded that after driving on clear roads, encountering a patch of snow and slush, and proceeding on that roadway under the posted speed limit, while experiencing no traction problems in his vehicle, the defendant was not operating his vehicle at an unreasonable speed for the conditions and, therefore, was not negligent under the statute. B Section 14-231 requires drivers, while driving on roadways that provide for only one lane of traffic in each direction, to give "at least one-half of the main-traveled portion of the road as nearly as possible" to the other vehicle approaching in the opposite direction. (Emphasis added.) The jury reasonably could have concluded, from the evidence presented, that the defendant was driving in his own travel lane and was providing one half of the roadway for oncoming traffic in the opposite direction. When his car lost traction, due to the snow and slush on the roadway, the defendant's vehicle slid. The jury reasonably could have found that although the defendant did not yield half of the roadway, he did yield as much of the roadway as was possible under the conditions presented. The jury could have found, therefore, that the defendant did not voluntarily cross into the oncoming lane of travel, did not breach a duty under the statute and, thus, was not negligent.* C In addition, the plaintiff asserts a claim of common-law negligence, in that the defendant failed to exercise reasonable care under the circumstances. In defining common-law negligence and the defendant's duty of reasonable care to the jury, the court instructed, "[negligence is the violation of a legal duty which one person owes to another for the safety of that person. It's the failure to exercise reasonable care under the circum stances. . In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all the circumstances which were known or should have been known to the defendant at the time of the conduct in question." (Emphasis added.) See 2 D. Wright & W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 522 (c). The plaintiff claims that the defendant admitted liability, in admitting negligence, by an answer in response to a question from the plaintiffs counsel that if he had been driving more slowly, the accident might not have happened. We disagree. As noted, the jury instructions indicate that the reasonableness of the defendant's actions must be judged at the time of the allegedly negligent conduct. The defendant, while on his way home from Mount Southington, traveled on two highways, which were clear of snow, and then for three miles on Cook Hill Road, which was also clear of snow. Given those conditions, the defendant did not have his vehicle in four wheel drive because it was unnecessary. At the time the defendant encountered the "washboard" snow; see footnote 2; he was traveling thirty miles per hour, five miles per hour under the posted speed limit. The defendant experienced no traction problems while traveling on the "washboard" surface for twenty-five to thirty seconds. It was not until then that his vehicle began to slide. In response to sliding, the defendant unsuccessfully attempted to maneuver his vehicle by turning the wheel toward the direction that his vehicle was sliding in an effort to regain control. The jury reasonably could have concluded that the defendant's conduct was not unreasonable in these circumstances. During the entire drive from the mountain until the defendant reached the "washboard" conditions on the highway, the defendant experienced no problems. While traveling on the snowy surface, under the speed limit, the defendant experienced no traction problems for twenty-five to thirty seconds. His vehicle then began to slide, and he did everything in his power to regain control of the vehicle. Despite the fact that the defendant admitted that, in hindsight, had he been traveling slower, the accident might not have happened, this statement is not an admission of negligence or liability. The evidence before the jury indicates that under the circumstances as the defendant knew them to exist, at the time of the alleged negligent conduct, the defendant exercised reasonable care in the operation of his motor vehicle. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff also included a count in the original complaint alleging recldessness. The court directed a verdict in favor of the defendant at the close of trial on this count. That ruling is not contested on appeal. This hard packed mixture was referred to as a "washboard" with intermittent areas of snow and pavement resulting in an uneven surface. Even if the plaintiffs counsel believed that it was inappropriate to question the jurors before their official discharge, or that it was not in his interest to question the jurors before knowing whether they would continue service on the jury for fear of resentment, at the time that they were brought back into the courtroom, he could have asked the court for further inquiry. Further, the fact that a juror stated, on his own, that he recognized the defendant does not give insight into the circumstances of his familiarity with the defendant or whether he viewed the defendant in a favorable or unfavorable light. It is not possible in this instance for us to determine from the reading of the record alone whether the comment was "sarcastic." This does not appear to be a reasonable interpretation of the court's comment 1hat the plaintiffs counsel need not use the entire amount of time allotted. For the first time, at oral argument, the plaintiff asserted that this presumption should not apply in this case. The plaintiff argued that each of the remaining jury members could all be viewed as having disregarded the court's previous instructions that they were to inform the court if they heard any comments about the case or the parties in the case. Alter one of the dismissed jurors told the other members of the jury that he recognized the defendant, each of the remaining jurors should have come forward and noted that there was a violation of the court's instruction not to discuss the patties in the case. This claim was not raised at trial, in the plaintiff's motion to set aside the verdict or in the plaintiffs briefs. We therefore decline to address this contention. General Statutes § 14-218a provides in relevant part: "No person shall operate a motor vehicle upon any public highway of the state . or upon a private road on which a speed limit has been established in accordance with this subsection . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets or weather conditions. . . ." General Statutes § 14-231 provides: "Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon highways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the highway as nearly as possible. Violation of any provision of this section shall be an infraction." The predecessor to General Statutes § 14-231, General Statutes (1949 Rev.) § 2489 (a), provides in relevant part that "[a]ny person, when driving, operating or having the custody of a vehicle on the highway, who shall meet any person . . . driving or operating a vehicle in the traveled portion of such highway, shall reduce its speed . . . and seasonably turn to the right so as to give half of the traveled portion of such highway, if practicable, and a fair and equal opportunity to the person so met to proceed . . . (Emphasis added.) Section 2489 has been interpreted to require a voluntary act on the part of the driver in order for a violation to have occurred. A mere accident stemming from a condition of the roadway that was not the fault of the driver, as in this case, in which snow on the roadway caused the driver's vehicle to skid into oncoming traffic, would not be a violation of the statute. See Grantham v. Bulik, 137 Conn. 640, 642, 80 A.2d 515 (1951) (holding that "the defendant's invasion of the part of the highway to his left of the center line was involuntary [where the defendant applied his brakes and slid on ice into oncoming traffic and that] the statute quoted [was] inapplicable"). "[I]f practicable" in § 2489 is similar to the "as nearly as possible" language in § 14-231. This in turn would require a voluntary act on the part of the defendant, which was lacking in the present case. Despite the fact that we do not reach the issue of proximate cause due to our finding that the jury could have concluded 1hat the defendant did not violate the siatute and, thus, was not negligent, the jury verdict would also be justified by a finding that the condition of the roadway was the proximate cause of the accident and not the defendant's negligence, if any had been found. See Blancato v. Randino, supra, 33 Conn. App. 48 (holding that jury could have reasonably concluded that conditions of roadway and not defendant's negligence were proximate cause of accident where defendant was driving vehicle under speed limit, vehicle slid on ice, and defendant's efforts to brake and maneuver vehicle could not prevent accident). The defendant's testimony during questioning by the plaintiffs counsel was as follows: "Q. If you had been going slower, would you still have been into that slide? "A. I believe that's correct. "Q. You do. "A. I believe I would. If I was going slower, if I knew any better, it might not have happened."

Opinion DiPENTIMA, J. In this appeal following a jury trial, the defendant, Steven Sewell, challenges the denial of two motions for a mistrial, claiming that the state's failure to disclose two witnesses in accordance with our rules of practice deprived him of a fair trial. We disagree and affirm the judgment of the trial court. The jury reasonably could have found the following facts. On December 23,2001, the victim, Timothy Sweat, was in the apartment he shared with his mother and brother in New Haven. The victim sold beer, cigarettes, soda and chips from his apartment to patrons he knew. At approximately 6:30 p.m. that day, Sweat responded to a knock at his door by looking through the peephole. When he recognized Judale Wynkoop, who is also known as Dell, to whom he had sold beer previously, Sweat opened the door. As the two men stood in the doorway speaking, the defendant emerged from a hallway outside the apartment, holding a black pistol. As the defendant approached, Wynkoop stepped away, Sweat raised his hands, and the defendant shot him through the thumb and into his chest at close range. Sweat tried, without success, to grab the defendant's face and throat and then backed into the apartment. The defendant ran down the street. Prior to trial, the defendant filed a written request for disclosure under Practice Book § 40-11, 40-12 and 40-13. In its response to that request, the state did not list either Angel Ogman or Darryl Wilson as witnesses or turn over to the defendant any statements attributed to these individuals. At trial, the state called a number of witnesses, including Sweat, Ogman, who is also known as Yummy, Quintares McArthur, a patrol officer in the New Haven police department, Edwin Rodriguez, a detective in the New Haven police department, and Wilson, who is also known as D-Woo. During the first day of evidence, the defendant moved for a mistrial because of the state's late disclosure of Wilson as a witness. That motion was denied. After Ogman testified later on that same day, the defendant moved for a mistrial on the basis of her testimony. That motion also was denied. At the close of trial, the jury found the defendant guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of General Statutes § 53a-48 and 53a-59 (a) (5), and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. Immediately after the jury returned its verdict, the defendant stipulated to having committed a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The court imposed a total effective sentence of twenty-five years imprisonment. This appeal followed. We first set forth our standard of review for the court's denial of the defendant's motions for a mistrial. " [T]he principles that govern our review of a trial court's ruling on a motion for a mistrial are well established. Appellate review of a trial court's decision granting or denying a motion for a [mistrial] must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . In [its] review of the denial of a motion for mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 672, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). Additionally, "Practice Book § 40-5 gives broad discretion to the trial judge to fashion an appropriate rem edy for non-compliance with discovery. Generally, [t]he primary purpose of a sanction for violation of a discoveiy order is to ensure that the defendant's rights are protected, not to exact punishment on the state for its allegedly improper conduct. As we have indicated, the formulation of an appropriate sanction is a matter within the sound discretion of the trial court. . In determining what sanction is appropriate for failure to comply with court ordered discovery, the trial court should consider the reason why disclosure was not made, the extent of prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances." (Citation omitted; internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). I The defendant first claims that the court improperly denied his motion for a mistrial related to Ogman's testimony and that his constitutional rights to confrontation and due process were violated because the state failed both to disclose Ogman as a witness in accordance with Practice Book § 40-13 and to provide any materials regarding the content of her testimony. We disagree. When jury selection began, the state listed Ogman as a potential witness, and the defendant did not object. The record also indicates that defense counsel knew of Ogman as a potential witness at least eight months prior to trial. It was only after Ogman testified on direct examination that defense counsel moved for a mistrial. On direct examination, Ogman testified that she was acquainted with the defendant, the victim and Wynkoop, and that on the day of the incident she had been in and out of the victim's apartment, buying beer. She saw the defendant in the vicinity of the victim's apartment minutes prior to the shooting and, immediately after hearing a gunshot, she ran into the victim's apartment. She further testified that when she approached the victim, he told her, "Steve shot me." Ogman also stated that a couple of days after the shooting, she spoke with the defendant. He asked her about the victim and told her that the gun should not have fired because he believed the safety was in place. He also told her that he had an alibi involving his mother. She then testified that she never told the police about her conversation with the defendant after the shooting because she feared being labeled a "snitch." Both McArthur and Rodriguez testified that when Ogman spoke with them about the shooting of the victim, she refused to give either of them a statement. Citing concern for her safety should her name be disclosed in a public record, neither police officer included Ogman in any filed report. Before beginning his cross-examination of Ogman, defense counsel made an oral motion for a mistrial, stating: "I would just make another motion for mistrial. I mean, this is certainly undue surprise. You know, all this extra — extra stuff. There's no reports, nothing, no memorandum whatsoever, nothing saying what she's going to say. I'm standing here, I'm like, you know, I don't know if the court noticed my jaw practically hit the table." In denying the defendant's motion for a mistrial related to Ogman's testimony, the court stated: "There's no basis for a mistrial here. At best, there is a witness that the state didn't even know was going to say until the end. I have granted you a continuance to deal with that, and if you need additional time, we'll deal with that as the need arises, but there's no indication of anything improper that has been done, your pronouncements — conclusions to the contrary, and the motion is denied." The court did not abuse its discretion by denying the defendant's motion for a mistrial on the basis of the state's failure to provide materials regarding the substance of Ogman's testimony. The court ordered a one day continuance and indicated that it would allow defense counsel more time if requested. The next day, defense counsel did not make any request for additional time. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . ." (Internal quotation marks omitted.) State v. Fasano, 88 Conn. App. 17, 43, 868 A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d 15 (2005), cert. denied, 546 U.S. 1101, 126 S. Ct. 1037, 163 L. Ed. 2d 873 (2006). In this case, the continuance the court granted was a curative action offered to remedy any then existing prejudice to the defendant. The defendant has not shown that he suffered any prejudice as a result of the court's grant of a continuance and denial of the motion for a mistrial related to Ogman's testimony. Additionally, the state's failure to provide any materials regarding the content of Ogman's testimony did not implicate any of the defendant's constitutional rights. The defendant argues that he has a constitutional right to materials relating to Ogman and her testimony. Specifically, he argues that the police officers who interviewed Ogman should have created a record of her statements so that the prosecutor could disclose her statements in turn to the defendant. Although the defendant argues to the contrary, the police do not have an obligation to create witness statements. "The law is clear that, absent bad faith, there is no affirmative obligation on the part of the government to take notes. . . . There may well be many reasons why the government would not take notes — witness security issues, the rapid pace of the investigation, the difficulty of separating out evaluative comments from admissible evidence." United States v. Houlihan, 937 F. Sup. 65, 68-69 (D. Mass. 1996); see also Campbell v. United States, 296 F.2d 527, 531 (1961), on appeal after remand, 303 F.2d 747 (1st Cir. 1962), vacated on other grounds, 373 U.S. 487, 83 S. Ct. 1356, 10 L. Ed. 2d 501 (1963); United States v. Lieberman, 608 F.2d 889, 897 (1st Cir. 1979), cert. denied, 444 U.S. 1019, 100 S. Ct. 673, 62 L. Ed. 2d 649 (1980). The police officers testified that their failure to document a statement for Ogman was out of concern for her safety. Although there was testimony that they did not follow procedure, there is nothing in the record to suggest that they acted in bad faith. Furthermore, the defendant's procedural right to disclosure of inculpatory materials under our rules of practice does not give rise in and of itself to a constitutional right. Disclosure of witness statements is required by Practice Book § 40-13. "The right under the rules of practice to statements of witnesses . is not a right of constitutional magnitude. United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 533, 21 L. Ed. 2d 537 (1969), on remand, 509 F.2d 1157 [Ct. Cl.], cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); State v. Vessichio, 197 Conn. 644, 661-62, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). The defendant therefore bears the burden of showing prejudice." State v. Coriano, 12 Conn. App. 196, 200, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987); see also State v. Meyers, 193 Conn. 457, 479 A.2d 199 (1984). In the present case, the defendant has not met this burden of proving prejudice or a denial of due process. The state disclosed its interest in Ogman as early as May, 2002. Testimony at trial indicated that the defendant was well acquainted with Ogman. The defendant knew Ogman by her nickname, Yummy, Ogman was familiar with the defendant's girlfriend, and the defendant lived next door to Ogman in the same apartment building. Additionally, the state disclosed Ogman's full name during jury selection and before trial. The defendant had time to interview Ogman and to prepare his cross-examination before she testified. Finally, the court allowed the defendant additional time to prepare his cross-examination by way of granting a continuance. The court further indicated that it would allow the defendant more time if he made such a request. Under these circumstances, we conclude that the state's failure to provide any materials or information regarding Ogman's testimony did not rise to the level of a denial of the defendant's right of confrontation or due process right to a fair trial. II The defendant next claims that the court improperly denied his motion for a mistrial as to the late disclosure of Wilson, whom, he alleges, was considered a suspect. The defendant claims that the late disclosure of this exculpatory evidence violated his right to a fair trial. We disagree. Wilson was present outside of Sweat's apartment building on the day of the shooting, and he testified that he did not cooperate with the police after the shooting. Several months following the shooting, after discussing his knowledge of the shooting with his mother, Wilson decided to talk with the police. Rodriguez testified that he met with Wilson the day before evidence began and told him that there were "rumors out there saying that he was possibly involved with the shooting and . if [the rumors] ever came up . . . [the police] probably could go after him." Wilson then provided a statement to the police. The prosecutor disclosed Wilson as a witness and provided his statement to the defendant the next day. The defendant made a motion for a mistrial. The court denied that motion, but granted a continuance, stating: "I will allow you any additional time you need to discuss the matter with [the defendant]. I will consider any motion addressed to that witness' testimony before he testifies. Also, you have the remedy of examining the police as to the reason for his emergence at this point. You may pretry the case again, if you wish, upstairs. You may have additional time to prepare a defense, to talk to Mr. Wilson. . . . But for all these reasons I do not see a sufficient basis upon which to declare a mistrial." The defendant's right to a fair trial was not violated by the state's failure to disclose that Wilson was a suspect. The record does not support the defendant's contention that the police seriously considered Wilson a possible suspect. Rodriguez' statement to Wilson regarding rumors of his involvement on the day before evidence began does not rise to the level of exculpatory materials to which the defendant would be entitled under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Moreover, Wilson's testimony was clearly inculpatory of the defendant. Even if Wilson's existence as a witness or possible suspect were exculpatory, his existence was not suppressed. The state disclosed his name and statement to the defendant on February 24, 2003, the day after the state became aware that Wilson had provided a statement to the police. "Evidence is not suppressed within the meaning of Brady, however, if it is disclosed at trial . In such a situation, the defendant must demonstrate that the timing of the disclosure prejudiced him to the extent that he was deprived of a fair trial." (Citations omitted; internal quotation marks omitted.) State v. Stinson, 33 Conn. App. 116, 120, 633 A.2d 728 (1993). The defendant is unable to demonstrate, in accordance with Stinson, that he was prejudiced by the timing of the state's disclosure of Wilson as a witness. The court not only granted the defendant a continuance to prepare for his cross-examination of Wilson, but also stated that it would entertain any other motions made by the defendant with regard to Wilson's testimony. Under Practice Book § 40-5, if the prosecution fails to comply with disclosure, the defendant can request that the court make an appropriate order, including granting a continuance, relieving the defendant from making a disclosure required by the rules and prohibiting the prosecution from introducing the specified evidence, including the entirety of the proffered witness' testimony. The defendant, however, requested only the most extreme of remedies — a mistrial. See State v. Fasano, supra, 88 Conn. App. 43. Not having pursued other viable remedies, including suppression of the witness' statement, or arguing that such a remedy would not have protected his rights sufficiently, the defendant is unable to show that he suffered prejudice because the court denied his motion for a mistrial related to the state's disclosure of Wilson and instead granted the defendant a continuance. The judgment is affirmed. In this opinion the other judges concurred. The court does not include a copy of the request filed by the defendant, but it is clear from other filings that such a request was made. See Practice Book § 40-7. As an initial matter, the defendant's motion for a mistrial clearly indicates that its basis was his surprise as to the content of Ogman's testimony. The defendant at no point objected to the state's use of Ogman as a witness. The focus of the defendant's argument on appeal and, consequently, our review of this issue, rests on the state's failure to provide any materials regarding the content of Ogman's testimony, rather than on the state's failure to disclose Ogman as a witness. If, however, the statement contained exculpatory material, a constitutional deprivation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), might arise. The defendant relies on State v. Gunning, 183 Conn. 299, 439 A.2d 339 (1981), to support his proposition that the state's explanation for its late disclosure was "totally unsatisfactory." The Gunning court stated in dicta that both the sixteen month delay by the police in notifying the prosecution and the prosecution's five day delay in notifying the defendant were inappropriate. Id., 306-307. In the present case, the police did notprocure astatement from Wilson until the day before evidence began, and there is nothing in the record to suggest that the police could have obtained the statement in a more timely manner. On the same day that the police officers procured the statement from Wilson, they also informed the prosecutor that Wilson was providing a statement about the incident to them. The next morning, the prosecutor told the defendant about Wilson and his statement. Unlike the facts present in Gunning, there simply is nolhing in the record to suggest that the timing of the disclosure in this case was in any way attributable to the state's action or inaction, either by 1he prosecutor or the police.

Opinion HARPER, J. The defendant, Alex Ortiz, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to one count each of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and possession of a controlled substance with intent to sell within 1500 feet of a public school in violation of General Statutes § 21a-278a (b). The defendant claims that the trial court improperly denied his motion to suppress certain evidence seized from his apartment. We affirm the judgment of the trial court. On June 24, 2002, the defendant filed a motion to suppress "all physical evidence" seized by officers with the Hartford police department from the property, buildings or vehicles located at a Hartford residence on February 8, 2002. The defendant asserted that police officers, while responding to a complaint at his apartment, entered and searched the apartment, its master bedroom and a bathroom adjacent to the master bedroom. The defendant also asserted that, during the course of the search of the master bedroom, police seized a handgun and that, during the course of the search of the bathroom, police seized money and narcotics. The defendant argued that the search and seizure violated his rights under the state and federal constitu tions because it was not conducted pursuant to a warrant. In November, 2003, the court conducted an evidentiary hearing on the defendant's motion. Both the state and the defendant presented evidence. On February 18, 2004, in a thorough memorandum of decision, the court denied the motion to suppress. The court set forth the following findings of fact: "Officer Giuseppe Uccello of the Hartford police department testified . . . that on February 4, 2002, he was dispatched to a 'B and E' alarm — a breaking and entering alarm — at 250 Main Street, apartment 330, in Hartford. Officer Eric Gaddy was the first respondent. Uccello described 250 Main Street as a large, multiple dwelling apartment building with more than ten floors. He met Gaddy at the ground level. He also met Carmelo Robles, an employee [of ADT Security Services, Inc. (ADT), an alarm monitoring company]. . It was his understanding that the alarm service had contacted the police department, resulting in his having been dispatched. They went up to the third floor. The alarm, coming from inside the apartment, could clearly be heard from the hallway. The door was locked. His main concern was that the apartment 'wasn't [being] burglarized.' . 'If there was a burglar inside, we didn't want an ambush.' Robles, who had a key, opened the outer door, but was initially left behind for 'security purposes' while the two officers entered. They went through various rooms, including a first bedroom, looking only in locations where a person could hide. They went through a second bedroom at the end of the hallway. This second bedroom led to a small hallway leading to another door, which was locked. Robles told the two officers that the locked room was a bathroom. Uccello noticed that the door was locked from inside and concluded that 'either somebody was hiding in there or it was somebody injured' or someone who had fallen and 'may have been in need of medical assistance.' . He asked Robles for a key, but Robles did not have one. Using a screwdriver provided by Robles, he opened the door. Prior to entering, he announced that it was the police but heard no response. . . . The bathroom was small with no windows. In plain view on the ground was a cardboard shoe box with 'wads of currency.' On the sink were bags containing white powder and scales. Given his training and experience, including investigations he had conducted while he was with the narcotics division, he concluded that the apartment was a narcotics and stash house, a location used to hide illegal drugs and money. He had not observed any visible signs of forced entry in the apartment, nor any signs of tampering with the doors, a break-in, or damage to any windows. He called his supervisor and the narcotics division to report what had been discovered. . He estimated the apartment was fifty to sixty feet off the ground. . . . The evidence was not initially seized or moved. "Gaddy, the first responder, also testified . . . [that] he knew only that he was responding to a 'burglar alarm,' but didn't know what he was venturing into. 'We prepared for the worst,' he said. Upon arrival, he, Uccello and Robles went upstairs to the third floor. They knocked on the outside door and got no answer. Guns drawn, they entered the apartment. He testified that 'we were just seeing if there was anyone in the apartment or if anyone was hurt . . . .' As they went through the apartment, they looked only in places where a person could be hiding. . . . Like Uccello, he had no idea who [the defendant] was or who lived at apartment 330 when he arrived. . . . "Detective Anthony Martinez, senior detective for vice and narcotics, responded to 250 Main Street in response to what had been observed in the bathroom. He had learned that Uccello and Gaddy suspected that someone might have been hiding in the bathroom or that an injured person was inside the bathroom. . . . After observing what had been found in the bathroom, he prepared an application for a search warrant, which was approved and then executed. The evidence seized . . . included 20.2 ounces of cocaine, ninety-one green pills, forty yellow pills, two scales, spoons, strainers and grinders with residue, a loaded, nine millimeter Browning Arms pistol, and a magazine and rounds for it. The loaded pistol, with a round in the chamber, was seized from a nightstand in the bedroom. . It was determined that the defendant had a permit for the pistol. Detective Martinez testified that he disabled the alarm system. He had no prior information relating to this location. . . . "Michael Brightman, assistant manager of 250 Main Street for Harver Realty Advisors, testified [that] [o]n the morning of February 4, 2002, a maintenance worker fixed a malfunctioning heating unit in apartment 330. [The defendant] and a female were in the apartment when the work was done, starting at 8:30 a.m. and ending at 8:45 a.m. The alarm in the apartment went off between 2:15 and 2:30 p.m. He received a call from ADT, which wanted to know if he was aware of the alarm. Brightman told ADT he would ask maintenance to look into it and asked Robles to do so. [The defendant] called on another line while Brightman was still talking with ADT. Brightman told [the defendant] he had received a call from ADT in connection with the ongoing alarm. [The defendant] said he had just missed a call from ADT. The policy was to give Robles a key to check when it was possible that a burglary was occurring, or somebody was ill or someone had fallen in an apartment — when there was an emergency. . . . Apartment 330 was the only apartment in the building with an alarm system. . . . "Robles testified [that] [h]e accompanied Uccello and Gaddy up to the third floor and opened the front door for them with a master key. He thought the police were 'looking for someone who was hiding.' He provided Uccello with a screwdriver from his work belt; Uccello used the screwdriver to open the bathroom door. . . . "Testimony was also provided by Lucy DiGioia, an employee with ADT in Wallingford. ADT had contracted with the defendant for monitoring of the alarm system in apartment 330. ADT received a burglar alarm from the motion detector in the kitchen at 2:13 and 59 seconds p.m., according to ADT records. . . . ADT called the apartment at 2:15 and 14 seconds p.m., but there was no answer, so the police were called. According to notations contained [in an exhibit], at 2:19 and 26 seconds p.m., a representative from ADT 'spoke to [the defendant, who] stated that there were some men there fixing his heater but still wanted PD to g.' DiGioia construed this to mean that [the defendant] still wanted the police department to go to the premises. . . . DiGioia sard that ADT signs a contract with customers providing that if a burglar alarm goes off, the premises will be called, but if nobody is home, 'we dispatch the police.' . . . "The defendant argues that inconsistencies in the testimony render the state's witnesses unworthy of belief. For example, as the state acknowledges, there was conflicting testimony as to when the alarm was disabled and by whom; different witnesses also have different recollections concerning precisely where evidence was seized. The court disagrees, having personally observed the witnesses' testimony and having considered the full record. The inconsistencies, such as they exist, are relatively minor. Moreover, given the time that passed between the events in question and when the witnesses testified, some discrepancies are to be expected. The court finds the testimony of the state's witnesses to have been credible and rejects the defendant's contention that discrepancies suggest that the witnesses were less than credible." On the basis of these findings, the court concluded that the money and drugs seized in the bathroom of the apartment were not the fruit of prior police illegality. The court concluded that the state had proved by a preponderance of the evidence that the search fell within two exceptions to the warrant requirement; the court concluded that the emergency doctrine applied or, in the alternative, that the police entered all the rooms of the apartment with the defendant's consent. The court further concluded that, after entering the bathroom legally, the police seized the money and drugs, which were in the officers' plain view. On July 30, 2004, the defendant entered a plea of nolo contendere, conditioned on his right to appeal from the court's denial of his motion to suppress. The court accepted the defendant's plea and determined that its denial of the motion to suppress was dispositive of the case. On September 24, 2004, the court sentenced the defendant to a total effective term of incarceration of eighteen years, execution suspended after eight years, followed by five years of probation. This appeal followed. The defendant challenges the court's separate conclusions that the emergency doctrine applied with regard to the search of the bathroom and that the police entered the bathroom with his consent. Although the court did not hold that the exigent circumstances exception to the warrant rule applied in this case, the defendant also argues that the warrantless search of the bathroom was not legally permissible under that principle. See, e.g., State v. Gant, 231 Conn. 43, 64, 646 A.2d 835 (1994) (exigent circumstances exception to warrant requirement applies generally to those activities in which police are "unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and . . . without seeking prior judicial authorization" [internal quotation marks omitted]), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). Finally, the defendant challenges the court's finding that the physical evidence seized from the bathroom was within the plain view of the officers. I THE EMERGENCY DOCTRINE The defendant first claims that the court improperly concluded that the entry into the bathroom fell within the emergency doctrine, an exception to the warrant rule. The defendant argues that the evidence did not permit a finding that the officers reasonably believed that a medical emergency involving a danger to human life existed so as to permit legally their search of the bathroom. We disagree. Our review of the defendant's claim is governed by well established principles. "Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. . . . [I]n reviewing a trial court's ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court's legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo. . . . Conclusions drawn from [the] underlying facts must be legal and logical. . . . We must determine, therefore, whether on the basis of the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed [to justify the entry], . . . "[A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . Searches conducted pursuant to emergency circumstances are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions. . . . [T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. . . . The extent of the search is limited . . . [to] a prompt warrantless search of the area to see if there are . . . victims [of a crime] or if a [perpetrator] is still on the premises. . . . The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities. . . . Such a search is strictly circumscribed by the emergency which serves to justify it . . . and cannot be used to support a general exploratory search. . . . "The state bears the burden of demonstrating that a warrantless entry falls within the emergency exception. . An objective test is employed to determine the reasonableness of a police officer's belief that an emergency situation necessitates a warrantless intrusion into the home. . . . [The police] must have valid reasons for the belief that an emergency exception exists, a belief that must be grounded in empirical facts rather than subjective feelings . The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. . . . The reasonableness of a police officer's determination that an emergency exists is evaluated on the basis of facts known at the time of entry. . . . "Moreover, as we have explained, the emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation. . . . Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life . . . ." (Citations omitted; internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 141-43, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). In asserting that the emergency doctrine did not apply under the circumstances of this case, the defendant essentially takes issue with the court's decision to credit as true the testimony of Brightman and Uccello. The defendant refers to evidence that, in a correspondence from Brightman prior to trial, Brightman had indicated that he had regarded the burglar alarm to reflect a possible burglary or a break-in. At trial, Brightman testified that he had regarded the burglar alarm to reflect "[a] possible burglary, somebody ill or, if somebody has fallen in the apartment, an emergency in the apartment." The defendant argues that, as an assistant manager for the apartment building, Brightman "knew there was no panic alarm in the bathroom, and he also knew that the alarm was not related to a medical emergency." The defendant further argues: "The fair inference is that Brightman was attempting to help the state justify the police entry into the locked bathroom. This testimony of Brightman is not only suspicious, but seriously weakens his credibility. The logical conclusion is that the landlord and the police knew, after entering the apartment, that there had been no break-in or burglary involving the apartment and that they therefore did not have consent to go into the locked bathroom. They created an imaginary medical emergency within the locked bathroom in an attempt to justify their wrongful behavior in searching the locked bathroom." The defendant also refers to Uccello's testimony concerning his reasons for entering the locked bathroom. Uccello testified, in relevant part: "I thought that somebody might be in need of medical assistance," and, "I thought there was a medical emergency." The defendant posits: "Uccello knew he was responding to a burglary alarm. He received no evidence from the landlord or any other source that there may be a medical emergency in the defendant's apartment. Uccello reasonably knew there was no medical emergency. This testimony of Uccello was put before the court for the sole purpose of attempting to justify his wrongful entry into the locked bathroom once he had entered the apartment and saw there were no exigent circumstances necessitating a further search. It puts into serious question Uccello's credibility as to all that he testified to." Finally, in arguing that the emergency doctrine did not apply, the defendant asserts: "[T]he police had no evidence to even remotely suggest that there was a person within the locked bathroom in need of immediate medical aid. The alarm they were responding to was a burglar alarm. It was not reasonable for the police to believe there was an individual within the locked bathroom in need of immediate aid who had activated the burglar alarm. The fair inference is that the burglar alarm could not even be activated from within the locked bathroom." As a preliminary matter, we reject the defendant's invitation to second-guess the court's favorable assessment of the testimony of Brightman and Uccello. During the evidentiary hearing, the defendant availed himself of his right to challenge the credibility of these witnesses on the basis of, among other issues, inconsistencies in their testimony. The court, in its fact-finding function, rejected those arguments. This court does not revisit credibility determinations; it is the exclusive province of the trier of fact to resolve credibility determinations and to determine what weight, if any, to afford the competent evidence before it. See, e.g., State v. Northrop, 92 Conn. App. 525, 531, 885 A.2d 1270 (2005), cert. denied, 277 Conn. 905, 894 A.2d 988 (2006). We next address the issue of whether the record supported the court's conclusion that it was reasonable for the police to believe that an emergency situation existed so as to render legal the officers' entry into the bathroom. As we stated previously, the relevant inquiry is whether the empirical facts available to the police at the time of the entry justified an objectively reasonable belief that an emergency situation existed, a situation that implicates the community caretaking function of the police to protect and preserve life. State v. Colon, supra, 272 Conn. 142-43. It is unchallenged that the police had the following facts available to them at the time of their entry. Uccello and Gaddy went to the apartment in response to a breaking and entering alarm. Uccello learned when he arrived that he had been dispatched after ADT contacted the police concerning the alarm. Uccello and Gaddy could hear the alarm coming from within the locked apartment when they reached the third floor with Robles. When the officers arrived at the door to the apartment, their knocks were not met with an answer. After Robles opened the door with his master key, the officers searched in various rooms throughout the apartment in places where a person might hide. They did not find anyone. Ultimately, they discovered a bathroom in a bedroom within the apartment. The door to the bathroom was locked from the inside. On the basis of this record, we conclude that it was objectively reasonable for the police to believe that someone was in the bathroom and that such person was in need of immediate aid. As the defendant acknowledges, the police were justified in entering the apartment under these circumstances. The police, when they arrived, were aware that a burglar alarm was activated only in the defendant's apartment; there was no building wide alarm. This alarm was sufficient to give rise to an objective suspicion that an occupant in the locked apartment in which the alarm had been activated was, either because of criminal activity or some other reason, in need of assistance. When the officers received no assurance that this was not the case after knocking at the apartment door, they entered the apartment to search for persons in need of assistance. This entry was justified under the emergency doctrine, and there is no basis in law or in fact to suggest that the justified entry of the apartment did not extend to every room within the apartment, in spaces where a person in need of assistance might be present. Were the police to have searched only those rooms that were readily accessible, they would have performed only a part of their community caretaking duties in the apartment. It was objectively reasonable for the officers to suspect that a person had caused the alarm to be activated. It was also objectively reasonable for the officers to expect to find such person in the locked apartment, the site of the alarm. When the officers did not find anyone in the other rooms of the apartment, they naturally focused their attention on the locked bathroom within the apartment, a place where a person might be found. The fact that the bathroom door was locked from the inside is significant. This fact provided an objective basis for a belief that someone was, indeed, inside the bathroom. The alarm was sounding in the apartment, the police were present at the apartment and there was no response when they announced their presence at the bathroom door. It was objectively reasonable for the police to suspect that the person behind the locked door under these circumstances was in need of assistance. The court's findings further reflect that the search of the apartment was prompt, conducted in a manner such as to reflect the officers' limited puipose of finding persons suspected of being in need of immediate assistance and that the officers neither had any prior knowledge of the apartment nor of the defendant. As the court stated, there was "no evidence [whatsoever] that the initial entry, initial limited searches or entry into the bathroom were pretextual." These reasonable findings, while not dispositive of the issue of whether the emergency doctrine applied, strengthen our conclusion that the search was objectively reasonable under the emergency doctrine. The fact that a person in need of assistance was not present in the apartment does not in any way detract from the objectively reasonable interpretation of the facts that were before the police officers in their haste to render whatever assistance was necessary at the time they arrived at the scene of the alarm. See, e.g., State v. Blades, 225 Conn. 609, 621, 626 A.2d 273 (1993) (noting that in "cool morning of appellate review" court should not disregard "heated passion of immediacy" that characterizes police function). Accordingly, we reject the defendant's claim that the emergency doctrine did not apply. II PLAIN VIEW DOCTRINE The defendant also argues that the evidence did not support the court's finding that the drugs and currency seized in the bathroom were in the officers' plain view. We disagree. We already have determined, in part I, that the police were entitled to be present in the bathroom of the defendant's apartment. It is well established that a police officer, during a lawful search of a private area, who sees an item in plain view, the incriminating nature of which is immediately apparent, may seize such item without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The seizure of such items in plain view is presumptively reasonable if there is probable cause to associate the item with criminal activity. Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). "The warrantless seizure of contraband that is in plain view is reasonable under the fourth amendment if two requirements are met: (1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods." (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 437, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). "The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the Fourth Amendment — or at least no sear ch independent of the initial intrusion that gave the officers their vantage point. . . . [T]he police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized." (Citation omitted; internal quotation marks omitted.) State v. Outlaw, 70 Conn. App. 160, 165, 797 A.2d 579 (2002). As set forth previously, the court found that when Uccello and Gaddy lawfully entered the locked bathroom, they found an open cardboard shoe box filled with money. They also found bags of white powder— a substance later determined to be cocaine — as well as scales on the bathroom sink. The court determined that "[t]he evidence observed in the bathroom was found in plain view, and its incriminating character was immediately apparent, rendering it subject to seizure." "Under the exclusionary rale, evidence must be suppressed if it is found to be the fruit of prior police illegality. . On appeal, we apply a familiar standard of review to a trial court's findings and conclusions in connection with a motion to suppress. A finding of tact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . [Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set forth in the memorandum of decision . Because a trial court's determination of the validity of a . . . search [or seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) State v. Days, 89 Conn. App. 789, 794, 875 A.2d 59, cert. denied, 275 Conn. 909, 882 A.2d 677 (2005). Although the defendant purports to claim that the evidence adduced at the hearing did not establish that the evidence seized was in plain view of the officers who entered the bathroom, the defendant does not argue that testimony elicited by the state did not support the court's finding that the evidence was in plain view of Uccello and Gaddy when they entered the locked bathroom. Our review of the record confirms that the testimony of Uccello and Gaddy provided an ample evidentiary basis for the court's findings in this regard; this testimony was substantial evidence in support of the court's decision. There are several related aspects of the defendant's claim. The defendant claims that evidence concerning his conduct on February 4, 2002, would lead a rational trier of fact to infer that the drugs and money in the bathroom were not in plain view. Essentially, the defendant claims that evidence adduced during the hearing, that a maintenance worker repaired the heating system in the apartment at his behest that morning and that he requested the police to respond to the alarm at his apartment, supported a finding that the money and drugs were not in plain view in the locked bathroom of the apartment. The defendant also refers to inconsistencies in the testimony of several witnesses and argues that "conflicting" accounts of what the police encountered in the bathroom reflected the fact that the police actually placed the drugs and money in plain view. The defendant argues: "The only fair inference to be drawn from these inconsistencies is that these items were not in plain view and were placed in plain view by the first two police officers and perhaps thereafter rearranged. The fact that police officers did not, upon entering the bathroom, actually observe these items in plain view would explain why the officers and detectives do not have the same recollection of [what] they observed. There was no initial image of these items in plain view for the police officers to recall. Their recollection of these items was in fact an attempt to recall how they themselves had arranged the items so as to be in plain view. Any plain view of these items was of their own creation." It is axiomatic that the court was not bound to draw inferences from the evidence that were consistent with the defendant's interpretation of the evidence. The court was free to reject the defendant's interpretation of the evidence and to make factual determinations that were supported by the evidence. In its memorandum of decision, the court unambiguously stated that it rejected the defendant's challenges to the credibility of the state's witnesses, including Uccello and Gaddy, and found these witnesses to have testified credibly. The defendant mounts a wholesale attack on the court's factual findings, asking this court to substitute his interpretation of the evidence and the credibility of witnesses in place of that of the trial court. As we stated previously, Uccello and Gaddy testified consistently with regard to the relevant fact that they immediately observed money and drugs when they opened the door to the defendant's bathroom. To the extent that the defendant argues that minor inconsistencies between the testimony of these witnesses exists, "[i]t is axiomatic that evidentiary inconsistencies are for the [trier of fact] to resolve, and it is within the province of the [trier of fact] to believe all or only part of a witness' testimony." (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005). The defendant's claim reflects a flawed view of this court's role in considering appeals. This court does not retry facts; it can only determine whether competent evidence supports factual determinations made by the trial court. Evidence is presented before the trier of fact, not before this court. The trier of fact has an "opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility" that we do not. (Internal quotation marks omitted.) State v. Flowers, 85 Conn. App. 681, 692, 858 A.2d 827, cert. granted on other grounds, 272 Conn. 910, 863 A.2d 703 (2004). Where, as here, factual determinations rested in large measure on credibility assessments, we accept the reasonable credibility determinations made by the trier of fact. "[T]he finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the [finder of fact] . . . ." (Internal quotation marks omitted.) State v. Morocho, 93 Conn. App. 205, 210, 888 A.2d 164 (2006). The judgment is affirmed. In this opinion the other judges concurred. See General Statutes § 54-94a; Practice Book § 61-6. In his motion to suppress, the defendant claimed that the search and seizure violated his rights under the state and federal constitutions. Before this court, the defendant bases his claims under the federal constitution; he has not separately analyzed his claims under the state constitution. Accordingly, we will analyze the defendant's claims solely under the federal constitution. See State v. McMurray, 217 Conn. 243, 248 n.6, 585 A.2d 677 (1991). We do not reach the merits of the defendant's claim that the search was not proper under the exigent circumstances exception to the warrant rule; the court did not rely on that exception. We note that the defendant does not take issue with the entry into the apartment, but only the bathroom within the apartment. The court also concluded, in the alternative, that the search was proper because the defendant consented to it. Although our holding with regard to the emergency doctrine resolves the issue of the legality of the search, we also hold that the police properly searched the defendant's apartment with the defendant's free and voluntary consent. The evidence supports the court's finding that by virtue of his statement to an agent of his alarm service, the defendant requested the police to respond to the alarm at his apartment. The defendant did not place any limitations on the scope of the investigation he authorized, and it was reasonable to find that the defendant authorized the police to enter the apartment and search in any areas where apeipetrator or a person in need of assistance reasonably might be present. It is well recognized that valid consent to enter and search a home is an exception to the warrant requirement. See State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984). Uccello testified that when he entered the bathroom, he observed several clear plastic sandwich bags containing white powder as well as a scale resting on the vanity that surrounded the bathroom sink. Uccello further testified that he observed an open cardboard shoe box containing money located "on the ground or on the toilet bowl . . . ." Gaddy testified that when he entered the bathroom, he observed a large bag of powder, a scale and money on the "toilet seat." Gaddy further testified that he observed money "underneath the sink in a shoe box with the lid open."

Opinion PETERS, J. A physician may be held responsible for an unfortunate medical outcome either for failure to comply with the prevailing professional standard of medical care or for failure to obtain informed consent. See Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 757 A.2d 516 (2000). This appeal concerns the law of informed consent. The plaintiffs' principal claim is that the trial court improperly precluded the minor patient and her parents from testifying about what they would have done if the defendant physician had told them that performance of the chin implant surgery that he recommended ran the risk of causing permanent nerve damage to the patient. We conclude that, although the court's rulings were improper in part, they were not sufficiently harmful to require a new trial. Accordingly, we affirm the judgment of the trial court. On October 16, 1998, the plaintiffs, Ann Midler and her father, Reuben Midler, filed a six count amended revised complaint against the defendant, Jeffrey L. Benjamin, and his professional corporation. The three prin cipal counts charged the defendant with negligence, nondisclosure of surgical risks and breach of contract because the surgery that the defendant performed to correct the shape of the minor plaintiffs chin caused permanent injury to her mental nerve. For the purposes of this appeal, the relevant count is the second count in which the plaintiffs alleged that the defendant had a duty to disclose to the minor plaintiff and her parents "all material risks and complications associated with the surgery which he proposed to perform" and "alternative methods of performing that surgery . . . ." A jury returned a general verdict in favor of the defendant. The trial court denied the plaintiffs' motion to set the verdict aside. The jury reasonably could have found that the seventeen year old plaintiff, Ann Midler, accompanied by her mother, Karen Midler, first met with the defendant on January 14, 1994, to discuss the desirability of a nasalplasty to improve the appearance of the minor plaintiffs nose. The defendant advised them that the minor plaintiff was a suitable candidate for such surgery and added that it would be desirable as well for her to have a chin implant, known as augmentation genioplasty, at the same time. He proposed to perform the genioplasty through the mouth (intraorally). He gave them a bro chure providing information about rhinoplasty but no written information about genioplasty. After two more preoperative visits, the minor plaintiff and her mother agreed to go forward with both surgical procedures. On February 14, 1994, the day of the surgery, the defendant asked Karen Midler to execute an "informed consent" form as guardian for the minor plaintiff. The form identified the proposed surgery as "submucous resection/nasalplasty and augmentation genioplasty" to be performed "on my daughter Ann." The form then stated, in its entirety: "Dr. Benjamin has satisfactorily explained the above procedure, including the expected result, scarring, postoperative course, alternative procedures if applicable in this case, and potential complications. Included in this consent is my authorization that Dr. Benjamin perform this procedure with whatever anesthesia, treatment, dressing, medication, or transfusion is necessary for my care." Concededly, the defendant had not warned the plaintiffs about a risk of permanent nerve damage. Almost immediately after the surgery, and repeatedly thereafter, the minor plaintiff voiced complaints of numbness and pain in the area of her mental nerve. In response to these enduring complaints, on August 17, 1994, the defendant offered to remove the chin implant. Another surgeon eventually removed the implant, and yet another surgeon thereafter performed another implant operation. In this appeal, the plaintiffs do not claim error in the jury's implicit determination that the defendant did not depart from the accepted standard of care in performing the genioplasty or in responding to the minor plaintiffs complaints of discomfort. The plaintiffs focus instead on the defendant's acknowledgement at trial that he had not advised the minor plaintiff or her mother of the risk of permanent nerve damage from the genioplasty. He explained that he had never himself seen such a phenomenon and had not been advised of such a possibility by the then available medical literature. The plaintiffs offered expert testimony to the contrary. In this appeal, the plaintiffs argue that, in the absence of disclosure of this possible risk, they did not give informed consent to the defendant's performance of the genioplasty in any fashion and especially in its performance intraorally, through the mouth, rather than extraorally, through the underside of the chin. In pursuit of this argument, they maintain that the trial court made two improper evidentiary rulings. These rulings prevented the juiy from hearing whether (1) the plaintiff's would have proceeded with the surgery if they had been advised of the risk of permanent nerve injury and (2) the defendant had failed to obtain informed consent in another malpractice case. The trial court sustained the defendant's objections to these evidentiary proffers, both at trial, and in response to the plaintiffs' motions to set aside the verdict and the defendant's motion for reconsideration. Our review of claims of evidentiary impropriety are governed by well established principles. "[W]e will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . [Bjefore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result." (Citation omitted; internal quotation marks omitted.) Kalams v. Giacchett, 268 Conn. 244, 249, 842 A.2d 1100 (2004). I THE ELECTION TO GO FORWARD WITH THE SURGERY . One of the disputed questions at trial was whether the defendant informed the plaintiffs that genioplasty could be performed either intraorally or extraorally. The plaintiffs presented expert testimony that extraoral augmentation was less likely to impact the mental nerve that, according to the plaintiffs, was permanently injured as a result of the genioplasty performed by the defendant. The plaintiffs attempted to make an evidentiary showing that the absence of the relevant information had an effect on their consent to the genioplasty. When the minor plaintiff was testifying, she was asked: "[I]n January or February of 1994, if [the defendant] had told you that there was a risk of permanent nerve damage when doing the chin implant procedure that you had done, would you have undergone that procedure?" The trial court sustained the defendant's objection to this question as too speculative because the minor plaintiff had no life experiences that she could have brought to bear in answering it. It was not persuaded by the plaintiffs' citation of Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999), as authority for the admissibility of such evidence. Karen Midler accompanied the minor plaintiff in each of her consultations with the defendant. On the witness stand, she was asked the following question: "[I]f during that January-February, 1994 period [the defendant] had told you that there was a risk of permanent nerve damage when doing a chin implant procedure, would you have allowed your [minor] daughter at that time, who was seventeen, Ann, to undergo this procedure?" The court again sustained the objection on the ground that the question was too speculative, again considering Bums to be unpersuasive. Subsequently, during cross- examination by the defendant, the mother testified that she herself had had similar surgery, with an extraoral implant. She had not, however, discussed her own history with the defendant when he described the procedure he intended to follow. The plaintiff Reuben Midler, the patient's father, was also asked a similar question. "[I]n that January or February of 1994 time period, if [the defendant] had advised your wife — or your daughter, I should say, that there was a risk of permanent neive damage when doing a chin implant, would you have allowed . . . your daughter to undergo the procedure?" Again the defendant objected and the court sustained the objection for the same reason. The plaintiffs maintain that these rulings were improper because the trial court took too constrained a view of the evidentiary principle articulated in Bums that, in medical malpractice cases, a patient or her surrogate may testify about the choices that better information would have allowed the patient to make. We agree in part. In DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79, 105, 828 A.2d 31 (2003), our Supreme Court recently restated the holding in Burris. The court stated: "In Bums, we addressed the admissibility of arguably speculative testimony in a medical malpractice case. The plaintiff, a woman suffering from severe multiple sclerosis, brought a wrongful birth claim against the defendant gynecologist who, 'knowing both of her condition and that it was medically undesirable for her to become pregnant, incorrectly advised her that she was sterile and failed to diagnose her pregnancy after an examination early in her second trimester.' . . . The trial court had precluded the plaintiff from testifying that she likely would have chosen to have had an abortion had the physician told her that she was pregnant in a timely fashion, concluding that such testimony was speculative. . . . We reversed the ruling of the trial court, concluding that the plaintiffs testimony as to what she would have done had the defendant advised her that she was pregnant was not speculative but, rather, was based on her personal knowledge." (Citations omitted.) Id., 106-107. Importantly, in DiLieto, the Supreme Court held that the evidentiary ruling in Bums did not depend on the witness' "havfing] personal experience with a particular procedure before being able to testify as to whether he or she would have undergone that procedure." Id., 107-108. The court clarified that in Bums, "the testimony was admissible because it was based on the plaintiffs personal knowledge and life experience, and therefore was not speculative." Id., 108. The Supreme Court then concluded that the trial court improperly excluded DiLieto's testimony as speculative, stating that "DiLieto, a woman in her forties, could have testified, based on her personal knowledge and life experience, whether she would have undergone the hysterectomy knowing that her condition might have been benign." Id. We reject the defendant's contention that DiLieto's restatement of the case law established by Bums does not govern this case because of a principle barring retroactivity in the law. The fact is that both the trial court in DiLieto and the trial court in this case read Bums too narrowly. We need not, therefore, explore the extent to which changes in the common law implicate the principles of retroactivity traditionally associated with changes in statutory law. The defendant is on stronger ground in his alternative argument that, with respect to the minor plaintiff, her personal knowledge and life experience was too meager to remove her proffered testimony from the realm of the speculative. The trial court made such a finding. It was not a clear abuse of the court's discretion to so find. The trial court did not, however, make any finding with respect to the life experiences of Ann Midler's parents. For both of them, their personal knowledge and life experience should have been accepted as a reasonable, nonspeculative basis for making an informed decision balancing the surgical risks and benefits of an intraoral genioplasty for their daughter. The mother's history of having had a genioplasty further underscores the admissibility of the testimony that she was prohibited from presenting to the jury. We conclude, therefore, that the court abused its discretion in upholding the defendant's objections to this proposed testimony. In light of this conclusion, we must now decide whether the plaintiffs have demonstrated that the court's improper rulings were harmful. In its entirety, the plaintiffs' argument on this issue consists of their assertion that the court's action "clearly placed [them] at a distinct disadvantage with respect to the jury consideration of the claim that the defendant failed to obtain the plaintiffs' informed consent from her or her mother. The court's action effectively took a major part of the plaintiffs' claim of a lack of informed consent from the jury." By way of rebuttal, the defendant points to the fact that the trial court expressly found that, if its ruling was improper, it was harmless. That finding is supported by the testimony of the plaintiffs' expert witness that permanent nerve damage from a chin implant is extremely rare and that, in his experience, patients who had been advised of this risk had never declined to undergo the procedure. Thus, regardless of whether the defendant had a duty to disclose the risk of permanent nerve injury associated with an intraoral genioplasty, it would have been highly unlikely for the jury to have found a causal connection between this breach and the plaintiffs' consent to the performance of this surgery. On this record, we are persuaded that the trial court's exclusion of the proffered testimony would not likely have affected the result of the trial. The court's rulings were therefore harmless error and do not warrant setting its judgment aside. II The plaintiffs' alternate claim of evidentiary impropriety is based on their unsuccessful effort to introduce evidence at trial that, on a previous occasion, the defendant was sued on a malpractice claim of failure to obtain informed consent. As in this case, the defendant was charged with having failed to prepare proper documentation of the manner in which he discharged his obligation to assure that his patient understood the risks of the medical procedure that was being contemplated. The plaintiffs attempted to introduce this evidence in connection with their examination of the defendant on the witness stand. The plaintiffs' counsel informed the court that "the claim has to go with credibility with respect to the [defendant's] testimony as to whether or not he documents risks of procedures or complications of procedures. ." Counsel wanted to refer to a specific case, from the mid-1980s, that also involved a claim of lack of informed consent, although the issue there was not nerve damage but scarring. The trial court upheld the defendant's objection to this proposed evidence. The court found that the evidence was of little relevance to the present case and that its probative value would be outweighed by the prejudicial inference that a juror might draw from the fact that there was a prior lawsuit against this defendant. In their appeal, the plaintiffs claim that their evidentiary proffer was relevant to support their claim that the defendant was aware of the necessity of documenting informed consent. That claim is, however, a nonissue. The defendant never denied that it was his responsibility to inform the plaintiffs of the risks and benefits of the proposed genioplasty before he performed it. It was his testimony that he had fulfilled this responsibility. In its memorandum of decision on the plaintiffs' motion to set aside the jury's verdict, the trial court held that "[t]here was no competent evidence offered at trial that the defendant's failure to document in any way caused the plaintiffs alleged injuries." The plaintiffs' appellate brief does not challenge the validity of this finding. As the defendant observes, the two cases on which the plaintiffs rely are not persuasive because they are readily distinguishable. In Duffy v. Flagg, 88 Conn. App. 484, 490, 869 A.2d 1270, cert. granted, 274 Conn. 909, 876 A.2d 1201 (2005), we reversed a medical malpractice judgment because the plaintiff in that case had been precluded from presenting testimony that her consent to a medical procedure had been obtained on the basis of an incomplete and misleading answer to a question regarding the physician's experience with the procedure with prior patients. No such question and answer are alleged to have been have been presented in this case. In DeGennaro v. Tandon, 89 Conn. App. 183, 197, 873 A.2d 191, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005), we upheld a medical malpractice judgment based in part on evidence that a dental provider was operating in an understaffed office and was using unfamiliar equipment. The plaintiffs in this case have made no comparable allegations about the competence of this defendant. In short, those cases do not provide enlightenment for this one. The judgment is affirmed. In this opinion the other judges concurred. Bepjamin's professional corporation, Jeffrey L. Benjamin, M.D., P.C., is also a defendant in this case. For convenience, we will refer to the defendant in the singular. The three remaining counts, derivative in nature, were brought by Reuben Midler to recover for expenses that he had incurred, and expected in the future to incur, for the care of his daughter, Ann Midler. The plaintiffs' expert witness, Arthur Taub, a physician, described the mental nerve as "a little nerve which emerges from a small hole in the lower jaw at about an inch and a half or so below the gum line and at about the level of the first molar tooth." The nerve is called "mental" because the word mentum means chin. The second count also alleged that "[t]he defendant . . . never informed the plaintiff of any risks or complications associated with the surgery which he proposed to perform and specifically never informed the plaintiff . . . that injury or damage to a nerve in her chin or loss of sensation might be consequences of the augmentation genioplasty which the defendant proposed to perform." The defendant introduced evidence that some of the patient's complaints had a psychosomatic overlay. After the court denied the plaintiffs' motion to set aside the verdict, the defendant sought articulation of certain of the trial court's analysis and consideration of certain posttrial motions.

Opinion DiPENTIMA, J. The defendant, O. James Purnell III, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Cheryl Purnell, and distributing the parties' property. On appeal, the defendant claims that the court improperly (1) valued the plaintiffs pension, (2) concluded that the plaintiffs supplemental account in her teacher's retirement account was speculative and therefore failed to include it as part of the marital assets, and (3) based part of its decision regarding property distribution on the defendant's speculative future earnings. We disagree and affirm the judgment of the trial court. The court found the following facts that are relevant to our disposition of the appeal. The parties married on June 30, 1973. During the course of the marriage, the parties had two children, both of whom had reached the age of majority by February, 2003, when the plaintiff commenced this marital dissolution action. The parties' son has special needs and, although he achieved a high school diploma, he continued to live in the marital home following his graduation. At the time of the dissolution, he had a part-time job, and the plaintiff expected that he would continue to need financial and emotional support. In this regard, she expected that he would continue to live with her following the dissolution, wherever she made her home. The parties' daughter was in her third year of college at the time of the dissolution, and the parties intended to help her with college expenses until she graduated. The parties had the following assets that were subject to distribution: (1) the marital home, located in Vernon, (2) a vacation home in Vermont, (3) the plaintiffs pension, (4) various bank accounts and (5) the parties' respective motor vehicles. In forming its financial orders, the court considered and found that, in addition to the other factors included in General Statutes § 46b-81, the parties earned relatively equal incomes throughout the course of the marriage but that the plaintiff had contributed all of her income to supporting the family and the household while the defendant contributed only part of his income to this purpose. The court also found that the defendant's actions led to the breakdown of the marriage. The court ordered that the marital home in Vernon be sold, with the proceeds of the sale divided evenly between the parties. The court awarded two-thirds of the value of the Vermont property to the defendant and one-third to the plaintiff, with the plaintiffs third to be paid out of the proceeds from the sale of the marital home. In return, the plaintiff was to quit claim her interest in the Vermont property to the defendant. The court awarded the plaintiff her pension and awarded the defendant the bulk of the cash assets, which the court determined to approximate $160,000. The court noted that the parties had disagreed most vehemently about the manner of offset of the plaintiffs pension were she to receive it. The defendant, in particular, had requested that the court award the plaintiff her pension and offset that award by awarding him essentially every other asset, including both pieces of real property owned by the parties. In declining to distribute the property in accordance with the defendant's proposed orders, the court took notice of the present value of the plaintiffs pension but allocated the pension by concentrating on the expected stream of income at the time the plaintiff retired. The court determined that the cash assets it awarded the defendant, wisely invested and combined with the defendant's social security income, could approximate the stream of income that the plaintiffs pension would yield during retirement. The court concluded that this division of assets was more equitable than the defendant's proposed orders, which would have left the plaintiff with no accessible assets. The court rendered judgment in accordance with its lengthy oral decision, and the defendant filed this appeal. Following the filing of the parties' briefs but prior to oral argument, the trial court had yet to sign a judgment file prepared by the parties. See Practice Book § 63-4 (a) (6). Both parties prepared separate draft judgment files, and the file prepared by the defendant stated that the court found the value of the pension to be $198,000, the amount represented by the plaintiffs cash contributions plus interest. The draft judgment file prepared by the plaintiff did not include a cash value of her pension, although it did indicate that the pension had been awarded to her. In response to these differing inteipre tations of its decision, the court, sua sponte, orally issued what it called a "clarification" of its decision. In this clarification, the court explained that it had found that the present value of the pension was more than $600,000 but that it considered it inequitable to award the plaintiff only her pension and to award the defendant all of the other marital assets to offset the plaintiffs pension. The court explained that, by distributing the assets in the manner that it did, it intended for the defendant to have enough money presently at his disposal to create the basis of a retirement fund if he so desired and that it was the court's expectation that such a retirement fund, if invested wisely and combined with the defendant's social security income, would have the potential to approximate the plaintiffs income stream from her pension. The court also stated that it had been its intention to award the plaintiff her supplemental savings account, which is part of her retirement account, regardless of its value. The court emphasized that this division of property was made on equitable grounds and was not intended to be an equal division of the property. I The defendant first claims that the court improperly valued the plaintiffs pension by cash contributions plus interest. A trial court's determination as to the value of an asset, including the value of a pension such as the plaintiffs, "is reviewable only if [the court] misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was [its] duty to regard." (Internal quotation marks omitted.) Krafick v. Krafick, 234 Conn. 783, 799-800, 663 A.2d 365 (1995). The crux of the defendant's argument is that the court failed to consider and to credit the testimony of his expert as to the "present value" of the plaintiffs pension. The defendant's argument, however, fails to take account of the court's clarification of its decision. As outlined previously, the court clarified that it valued the plaintiffs pension in accordance with the present value as determined and testified about by the defendant's expert. It considered the valuation and distribution of the plaintiffs pension under the principles our Supreme Court enunciated in Krafick v. Krafick, supra, 234 Conn. 783. Specifically, the court stated that it considered the pension's value under the "present value" or "offset" method and, after concluding that there existed insufficient marital assets for an equal division under the offset method, determined that, in addition to considering the present value, considering the income stream of the parties in retirement would be better suited to the needs and interests of the parties under the facts and circumstances of the case. See id., 804. The court specifically indicated that it did not intend for its property distribution to be an equal division of the marital assets but instead was considering all of the factors included in § 46b-81 in forming its award. Because the fact on which the defendant bases his claim, namely, that the court valued the pension as cash contributions plus interest, does not find support in the record, the defendant's claim must fail. II The defendant next claims that the court improperly considered speculative the 1 percent supplemental savings account that the plaintiff has as part of her account with the state teachers' retirement board and therefore failed to include it as part of the marital assets. When the court's factual findings are challenged on appeal, we consider whether such findings are clearly erroneous. "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) State v. Farady, 268 Conn. 174, 185, 842 A.2d 567 (2004). We first note that the defendant's counsel interrupted and redirected the court as it was in the process of issuing its decision in regard to the supplemental savings account. Specifically, the defendant had requested the court to address in its orders the plaintiffs supplemental savings account, early retirement bonus and severance bonus. As the court was in the process of answering the question by the defendant's counsel, counsel again interrupted and asked the court about the parties'joint bank accounts. Therefore, to the extent that the court may not have addressed fully any questions the defendant may have had about the award of the plaintiffs supplemental savings account, the defendant is not completely without fault. Later, in its clarification, the court stated that whatever amount the plaintiff would receive from that account when she retired would be hers. Furthermore, from the testimony and exhibits before the court and the court's valuation of the pension as a whole, it appears that the court included the current value of the supplemental savings account as part of the plaintiffs pension. The defendant's claim, therefore, that the court failed to include the supplemental savings account as part of the marital assets is without basis in the facts, and we cannot conclude that the factual findings the court did make were clearly erroneous. III The defendant's final claim is that the court abused its discretion by basing its property distribution on speculative future investment earnings. To the extent that the defendant's claim rests on his previous claim that the court improperly valued the plaintiffs pension, we have rejected that claim. We therefore consider the remainder of the defendant's claim as being that the court abused its discretion in awarding the plaintiff's pension to the plaintiff and awar ding him approximately $160,000 in cash assets. In considering whether the court abused its discretion in fashioning its financial orders, we look to whether the court correctly applied the law and reasonably could have concluded as it did. Loughlin v. Loughlin, 93 Conn. App. 618, 624, 889 A.2d 902, cert. granted on other grounds, 277 Conn. 926, 895 A.2d 798 (2006). "In making those determinations, we allow every reasonable presumption . in favor of the correctness of [the trial court's] action." (Internal quotation marks omitted.) Id. We also recognize that "[t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a . . . dissolution case [may be] a car efully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Prior to issuing its decision regarding the distribution of the parties' property, the court indicated that it had taken into consideration all of the factors outlined in § 46b-81. Specifically, the court noted the portions of each party's individual earned income that had been contributed to pay for the family's needs. The court also noted that if the assets were distributed in accordance with the defendant's proposed orders, the plain tiff "would have her pension [and] that's about it. . . ." The court considered that it would be more equitable, considering all of the facts and circumstances of the case, for the marital home to be divided equally, for the plaintiff to receive one third of the value of the Vermont property and for her to receive her pension in its entirety. Other than arguing that the court's valuation of the plaintiffs pension was improper, an argument with which we have disagreed, the defendant cites no law or facts in support of his contention that the court's distribution to the plaintiff of her pension and the bulk of the cash assets to the defendant was an abuse of its discretion. In a situation such as this, in which the court specifically stated that it had not intended its award to be an equal division of the parties' assets but rather intended an equitable distribution, taking into consideration the facts and circumstances of this particular case, we cannot conclude that such a distribution was an abuse of the court's wide discretion in these matters. The judgment is affirmed. In this opinion the other judges concurred. The court requested that the parties and their counsel return to the court so that it could resolve the differences between the parties as to the wording of 1he judgment file. The court did not hear argument from counsel, nor did it take any evidence. In fact, the one time that the defendant's counsel attempted to argue with the court, the court indicated to counsel that it was clarifying its decision for the record and not listening to any argument from counsel. Although the court did answer some further questions from counsel following its decision, these questions sought further clarification and were not in the nature of argument. Following this proceeding, the defendant filed a late motion for review with this court, which was denied. Neither prior to nor at oral argument did either party request that we reconsider whether the court's "clarification" affected the nature of the judgment so as to alter the bases for the court's decision. After review of both the court's initial decision and the later proceeding, we conclude that the court's later decision did not modify the terms of its original decision and, therefore, properly can be characterized as a clarification. Cf. Cattaneo v. Cattaneo, 19 Conn. App. 161, 165 n.3, 561 A.2d 967 (1989); Miller v. Miller, 16 Conn. App. 412, 547 A.2d 922, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988). We do not fault the parties for initially misunderstanding the court's oral decision following the hearing. The record in this case demonstrates the problems in rendering oral decisions in complicated cases. Unless the court takes great pains to organize the elements of the decision after careful deliberation, and to express them clearly and cogently, without interruption, the parties may be left with incomplete and ambiguous rulings. Further clarification or articulation may then be necessary in order to comprehend the court's decision. A written memorandum may be preferable under such circumstances. We note that, whatever the deficiencies in the court's initial oral decision, it did issue an oral clarification when confronted with the parties' conflicting interpretations of the initial decision. The defendant neglected, at his peril, to address the clarification in his arguments to this court. See footnote 3. The court clarified that the account itself was not speculative but rather the amount that the plaintiff would receive from that account was uncertain. To the extent that the court's initial decision could be read differently because the court discussed the plaintiffs supplemental savings account in conjunction with a possible early retirement or severance bonus, we note that the defendant could have sought an articulation specifically as to the court's characterization of the supplemental savings account. See Practice Book § 66-5; Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn. App. 125, 134, 891 A.2d 133 (2006). Furthermore, once the trial court had clarified its initial decision, the defendant could have requested permission from this court to file a supplemental brief on all the issues raised in this appeal that were affected by this clarification. See, e.g., Thomson v. Orcutt, 257 Conn. 301, 307, 777 A.2d 670 (2001); State v. Myers, 244 Conn. 683, 685, 711 A.2d 704 (1998); State v. Figueroa, 235 Conn. 145, 154, 665 A.2d 63 (1995); State v. Pierce, 64 Conn. App. 208, 210, 779 A.2d 233 (2001). The defendant has not argued and we do not address whether it was an abuse of the court's discretion to award the plaintiff her supplemental savings account without valuing it at an amount certain.

Opinion SCHALLER, J. This case comes before us for a second time. The defendants, John A. Seidel and Fred R. Seidel, appeal from the judgment of the trial court rendered in favor of the plaintiff, Chester Lisiewski. On appeal, the defendants claim that the court improperly found that the plaintiff proved his claim of adverse possession. We reverse in part and affirm in part the judgment of the trial court. In Lisiewski v. Seidel, 72 Conn. App. 861, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002), we set forth the following relevant facts and procedural history. "The plaintiff . . . owns land to the east of the disputed property and brought this action when the defendants erected a metal gate obstructing his passage over [a] driveway. . . . "The parcel of land subject to the title dispute is a narrow, L-shaped parcel on the northerly and westerly borders of the plaintiffs land (disputed area). . . . Even if one accepts the construction of deeds advanced by the plaintiff, almost all of the gravel driveway is located on the undisputed land of the defendants except for a narrow gore within the disputed area which expands from a sliver to a width of five feet on the street line. . . . "In the early 1950s, the plaintiff and the defendants' grandfather, Reinhold Seidel, worked together as foremen in the same factory. At that time, the plaintiff and Seidel negotiated the land conveyance at issue in this appeal. Seidel owned real property in the town of Sprague, which he decided to sell to the plaintiff. In 1952, prior to conveyance, the plaintiff began building a house on the land. During construction, vehicles eventually wore a path near the western boundary of the parcel that Reinhold Seidel would eventually convey to the plaintiff. It was this path that would later evolve into the gravel driveway . On April 28, 1954, Seidel conveyed the land to the plaintiffs wife by warranty deed, which was recorded in the Sprague land records in volume 16, pages 410 and 411. "When the plaintiff moved in, the land immediately to the east of the gravel driveway was 'practically' a 'jungle,' due to heavy foliage. The plaintiff soon cleared and cultivated the area. In late 1954, he planted a row of [hjemlocks in that area, roughly parallel to the gravel driveway. In the late 1950s, he built a stone wall in the disputed area. One length of that stone wall lay several feet to the east of the gravel driveway. "Meanwhile, Seidel retained land to the west, including the gravel driveway. This land eventually passed to the defendants. Upon Seidel's death, the land first passed from his estate to Martha Emma Seidel, his wife. In 1962, Martha Emma Seidel conveyed that land by quitclaim deed dated February 16, 1962, and recorded in the Sprague land records in volume 15, page 413, to her son, Fred Seidel, and his wife Olga. Finally, Fred Seidel and Olga Seidel conveyed the land to their two sons, [the defendants] by warranty deed dated and recorded on June 20, 1997, on pages 689 and 690 of volume 53 of the Sprague land records. "Before the defendants acquired the property to the west of what their grandfather had conveyed to the plaintiff, the plaintiff had used the gravel driveway for more than forty years as a means of egress and ingress to and from his property. In 1981, the plaintiff built a garage behind and to the north of his house, connecting with the gravel driveway. Prior to that date, he had simply parked vehicles outside in the same location. The defendants' predecessors in title, namely their father and grandfather, never challenged the plaintiffs use of the gravel driveway." Id., 862-64. Shortly after obtaining the property from their parents, the defendants erected a metal gate at the end of the gravel driveway, preventing the plaintiffs passage. Id., 864. By way of an amended revised complaint dated June 12, 2000, the plaintiff claimed, inter alia, that he had obtained title to the disputed area by adverse possession and by the language contained in the deeds. The trial court concluded that the plaintiff had "established through the testimony of his experts and the deed that he has . . . title to the disputed [area]." The court did not address the plaintiffs adverse possession claim as a result of its conclusion regarding the construction of the deed and rendered judgment accordingly. On appeal, we reversed "the judgment of the court with respect to its holding that the 'plaintiff has established through the testimony of his expert and through his deed that he has . . . title to the disputed [area] . . . and that the defendants have no title, interest or estate therein.' " Id., 871. We then stated: "The court did not decide the plaintiffs claim that he had established title by adverse possession to the disputed area because it found that he had title by deed, a decision we this day reverse. We therefore remand the case for the court's consideration of whether the plaintiff has established title by adverse possession to any area within the disputed area." Id. Following our remand, the defendants, on October 31, 2002, moved to supplement the evidentiary record, and the court denied their motion on December 12, 2002. The court issued its second memorandum of decision on November 14, 2003, in which it determined that the plaintiff had obtained the disputed area by adverse possession. This appeal followed. Additional facts will be set forth as necessary. The defendants claim that the court improperly found that the plaintiff proved that he was entitled to the disputed area. Specifically, they argue that the court's prior statement that the parties shared dominion over the disputed area precluded a finding of adverse possession. The defendants also argue that the plaintiff failed to establish that he had adversely possessed the entire disputed area. We address each argument in turn. As a preliminary matter, we identify the legal principles applicable to this case. "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner. . . . "A finding of adverse possession is to be made out by clear and positive proof. . . . [C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession. . . . "Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion." (Citation omitted; internal quotation marks omitted.) Provenzano v. Provenzano, 88 Conn. App. 217, 221-22, 870 A.2d 1085 (2005); see also General Statutes § 52-575; Roche v. Fairfield, 186 Conn. 490, 498, 442 A.2d 911 (1982); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462-63, 338 A.2d 470 (1973); 16 R. Powell, Real Property (2005) § 91.13. With these principles in mind, we address the defendants' specific arguments. I The defendants first contend that the court's statement in its first memorandum of decision that the parties shared dominion over the disputed property precluded a finding of adverse possession in favor of the plaintiff. We agree that the defendants have stated correctly that shared dominion defeats a claim of adverse possession. See Roche v. Fairfield, supra, 186 Conn. 498; Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980); Matto v. Dan Beard, Inc., 15 Conn. App. 458, 476, 546 A.2d 854, cert. denied, 209 Conn. 812, 550 A.2d 1082 (1988). If dominion is shared, then the exclusivity element of adverse possession is absent. We conclude, however, that the defendants' argument mischaracterizes the court's statement in its first decision. The defendants filed a counterclaim and sought to obtain title to the disputed area by adverse possession. In its first memorandum of decision, the court indicated that the testimony regarding the use of the disputed area, more specifically, the land located to the west of the stone wall and hemlock bushes and east of the gravel road, was "in great dispute . . . ." The court determined that the testimony of the plaintiffs witnesses was more credible than that of those offered by the defendants. The court stated: "The evidence was clear that although the defendants claimed adverse possession, they did not show that they had exclusive use of the land, but merely shared dominion over the property with the plaintiff. The defendants did not dispute that [the plaintiff and his family] regularly walked on the disputed area to maintain their bushes and, as part of the disputed area falls on the east side of the wall, [the defendants] admitted they never maintained this area or considered it to be their own. Because [the defendants] failed to keep the [plaintiff and his family] out of the disputed area uninterruptedly for fifteen years, they have not proven that they have adversely possessed the area by clear and convincing evidence." (Emphasis added.) Following our remand, the sole issue before the court was whether the plaintiff had obtained title to the disputed area by adverse possession. In response to the defendants' argument that the court had found "shared dominion" over the disputed area, the court reiterated that it found that the testimony set forth by the plaintiff and his witnesses was more credible than the testimony offered by the defendants. The court then stated: "The defendants incorrectly suggest that this court's previous decision found that the evidence clearly showed that the parties shared dominion over the property. What this court actually determined was that the defendants did not present this court with clear and convincing proof that they had exclusive use of the land. At best, the defendants' testimony and witnesses might support a finding of shared dominion; however, the court finds that they failed to do even that." (Emphasis in original.) We agree with the plaintiff that the defendants have mischaracterized the court's statement in the first decision. It is clear, when read in the proper context, that the court did not make a finding as to whether the parties shared dominion over the disputed property. We read the court's statement to indicate that, with respect to the counterclaim, the defendants had the burden of establishing adverse possession by clear and convincing evidence, and that even if the court credited the defendants' evidence, the defendants were unable to establish the exclusivity element of adverse possession because that evidence indicated shared dominion. Furthermore, if it had made such a finding, the court could have rendered judgment denying both parties' claims for adverse possession at the time of the first decision. In other words, if there had been an actual finding by the court of shared dominion, judgment could have been rendered not only on the defendants' counterclaim, but also on the plaintiffs claim for adverse possession, which he had pleaded in the alternative. Instead, the court noted that it was not necessary to reach the plaintiffs adverse possession claim in the first decision. We conclude, therefore, that the defendants' claim is without merit. II The defendants next argue that the plaintiff failed to prove that he has adversely possessed the entire disputed area. Simply put, the defendants challenge the sufficiency of the evidence supporting the conclusion that the plaintiff has adversely possessed the disputed area. The defendants present two arguments. First, they argue that, although there was evidence before the court that the plaintiff used the "southern portion" of the disputed area, this evidence was insufficient to support the court's conclusion with respect to the plaintiffs adverse possession claim. Second, the defendants contend that there is no evidence to support the finding that the plaintiff possessed the "northern portion" of the disputed area. To facilitate our discussion, it will be helpful to describe in greater detail the disputed area and the plaintiffs property. The southern boundary of the plaintiffs property is Bushnell Hollow Road. The disputed area lies between the properties and runs north and south, with the defendants' property to the west and the plaintiffs to the east. The disputed area is approximately 420 feet in length. Running in a similar direction with the disputed area on the defendants' eastern border is the gravel driveway. This driveway connects to Bushnell Hollow Road. Approximately 220 feet from Bushnell Hollow Road, the gravel driveway turns eastward, enters the disputed area and continues into the plaintiffs property, leading to a garage and carport. The plaintiff built a stone wall and planted the hemlock bushes in the disputed area parallel to the gravel driveway. Located between the line created by the stone wall and hemlock bushes and the driveway is a grassy section of land that is entirely in the disputed area. The hemlock bushes turn eastward into the plaintiffs property just south of the turn in the gravel driveway. To the north of the turn in the driveway is a tree line, located approximately 260 feet from Bushnell Hollow Road. This tree line creates the point of demarcation, splitting the disputed area into a northern and southern portion, as identified by the defendants. With this background in mind, we now address the defendants' specific claims. A The defendants first argue that the evidence of the plaintiffs occupation of the southern portion of the disputed area is insufficient to sustain the court's finding of adverse possession. We disagree. The following legal principles are germane to our discussion. Our standard of review is well settled. "Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. . An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. . . . Where there is con flicting evidence . we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine. . In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony." (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 88 Conn. App. 471, 481, 869 A.2d 1254, cert. denied, 274 Conn. 903, 876 A.2d 11 (2005). The defendants argue that the extent of the use of the southern portion of the disputed area by the plaintiff, that is, "trimming trees and mowing grass," is legally and logically inconsistent with the court's finding that the plaintiffs possession was continuous and exclusive. In support of this argument, the defendants cite Bridgeport Hydraulic Co. v. Sciortino, 138 Conn. 690, 88 A.2d 379 (1952). In that case, our Supreme Court upheld the judgment of the trial court denying the claim of adverse possession. Id., 695. The trial court had found that the party alleging adverse possession had cut wood on the property at "infrequent and irregular intervals" over a thirty year period and at one time had dug a ditch to drain a pond. Id., 694. The Supreme Court concluded: "In view of the seclusion of the tract, the irregularity and infrequency of the hostile acts, and the interruption by the owner of the activities of [the adverse possessor], the court could reasonably conclude that title by adverse possession had not been proved by the defendant." Id., 695. The facts of Bridgeport Hydraulic Co. are distinguishable from those in the present case. The disputed area in the present case consists of land along the border between the parties' properties. The plaintiff testified that he had built a stone wall in the disputed area in the 1950s. He has maintained that wall since it was built. The plaintiff also planted hemlock bushes in the disputed area and has cultivated them since 1954. The plaintiff further testified that he had cleared out the overgrown brush and continually cut the grass in the area between the stone wall and the gravel road since 1954. The plaintiffs son, Constantine Lisiewski, testified that he had assisted the plaintiff in maintaining these areas. The plaintiffs former daughter-in-law, Patricia Goyette, also testified that she had helped the plaintiff trim the hemlock bushes and remove brush from the area between the stone wall and the driveway. In short, the testimony at trial offered by the plaintiff, which the court expressly credited, established substantial and repeated activity by the plaintiff in the disputed area. See, e.g., 2 C.J.S., Adverse Possession § 41-49 (2003). This activity was much greater than the infrequent and irregular activity found by the trial court in Bridgeport Hydraulic Co. v. Sciortino, supra, 138 Conn. 690. We conclude, therefore, that the evidence in the present case is legally and logically consistent with the finding of adverse possession. We cannot say that the court's finding was clearly erroneous with respect to the southern portion of the disputed area. B The defendants next argue that there is insufficient evidence to support the finding that the plaintiff possessed the northern portion of the disputed area. Specifically, the defendants argue that there was no evidence that would support a finding of adverse possession with respect to the northern portion of the disputed area. We agree with the defendants. We first note that the plaintiff is entitled only to the portion of the disputed area that he actually occupied during the course of his adverse possession. This is due to the fact that the plaintiffs claim of adverse possession is not based on color of title. Color of title exists when the claim of adverse possession is premised on a written instrument that appears to convey title and describes the property, but fails to actually convey legal title. 16 R. Powell, supra, § 91.08 [1], p. 91-49. "Possession under color of title confers at least two benefits on the claimant. First, actual possession of only apart of the area described in the colorable title is treated as constructive possession of the whole area covered by the instrument. Second, in many jurisdictions the required period of possession is shortened." (Emphasis added.) Id. In contrast, adverse possession without color of title is limited to the area of land actually possessed. Id. The Vermont Supreme Court has stated: "Adverse possession may be asserted either under claim of title (where claimant took possession under a deed which is for some reason defective), or under a claim of right which arises from the open, notorious and hostile possession of the land at issue. Where there is color of title, it is relatively simple to ascertain the extent of the possession claimed, since actual and exclusive occupation of any part of the deeded premises carrie [s] with it constructive possession of the whole . . In the absence of color of title, however, and where a lot has no definite boundary marks, adverse possession can only extend as far as claimant has actually occupied and possessed the land in dispute." (Citation omitted; emphasis added; internal quotation marks omitted.) Community Feed Store v. Northeastern Culvert Corp., 151 Vt. 152, 156, 559 A.2d 1068 (1989); see N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 441, 736 A.2d 780 (1999), cert. denied, 528 U.S. 1079, 120 S. Ct. 798, 145 L. Ed. 2d 672 (2000); see also Fee v. Leatherwood, 232 Ark. 817, 821, 340 S.W.2d 397 (1960) (appellees' adverse possession limited to land actually occupied); Friend ship Baptist Church, Inc. v. West, 265 Ga. 745, 745, 462 S.E.2d 618 (1995) (where no color of title, prescription will not extend beyond actual "possessio pedis"); Yakima Valley Canal Co. v. Walker, 76 Wash. 2d 90, 93, 455 P.2d 372 (1969); Droege v. Daymaker Cranberries, Inc., 88 Wis. 2d 140, 146, 276 N.W.2d 356 (Wis. App. 1979) (burden of providing extent of occupancy rests with adverse possessor); 3 Am. Jur. 2d 108, Adverse Possession § 27 (2002). In Roberts v. Merwin, 80 Conn. 347, 68 A. 377 (1907), our Supreme Court affirmed the judgment rendered in favor of the defendants. The court concluded that the plaintiff had failed to prove his claim of ownership with respect to certain tracts of land identified as plots two, three and four. Id., 349. Specifically, the court concluded that the plaintiffs claim to title was insufficient because he had received title from an adverse possessor who had gained title to plot one, but had never actually occupied plots two, three and four. Id., 349-50. Thus, the boundary of the property obtained by adverse possession was limited to plot one, the area that actually had been possessed. It is our view that Connecticut jurisprudence is in accord with the general principle of law expressed by the Vermont Supreme Court and adopted by many of our sibling states. Accordingly, the plaintiff in the present case, who did not proceed under color of title, is entitled to only the area that he actually occupied during the course of his adverse possession. We already have determined that there was sufficient evidence to support the court's finding of adverse possession with respect to the southern portion of the disputed area. We now turn our attention to the evidence adduced at trial pertaining to the northern portion. The plaintiffs testimony focused exclusively on the southern portion of the disputed area. He testified about the hemlock bushes and the stone wall that he had constructed. He also indicated that he had cleared out and consistently maintained the grassy area that was located between the aforementioned hemlock bushes and stone wall and the gravel road. He further stated that he had used the gravel road as a means for equipment and motor vehicles to gain access to the back of his property. Constantine Lisiewski testified that he had maintained the grassy area between the stone wall and the gravel road. He further testified that he had maintained the hemlock bushes. He then responded affirmatively to the following question: "So, for the last thirty-nine years, would it be fair to say, since you were bom, since you have lived there, you believed this area, on the left side of the stone wall and the left side of the bushes to be [the plaintiffs] land?" During cross-examination, the defendants' counsel showed Constantine Lisiewski exhibit three, which was described as a photograph taken from the front of the plaintiffs property looking toward the back. Constantine Lisiewski testified that this photograph depicted an area of land that belongs to his father. He subsequently described another photograph that was taken in the same direction as exhibit three that showed the grassy area near the driveway. He stated that he had "mowed" and "weed whacked" this area. This driveway off of the gravel road, however, is located entirely within the southern portion of thé disputed area and is just north of the hemlock bushes. Constantine Lisiewski was then shown another picture, designated exhibit seven that depicted the "back of the lot" to the north of the driveway, but there was no testimony regarding his activities in that area. During redirect examination, Constantine Lisiewski was shown photographs designated exhibits eight through fourteen. He indicated that prior to the lawsuit, he had mowed "all the way back." It is not clear, how ever, whether he meant "all the way back" to the northern boundary of the plaintiffs property or the area where the gate had been placed or some point along the western boundary. Even if we assume arguendo that Constantine Lisiewski's testimony indicated that he had mowed the grass in the disputed area to the northern boundary, the court's finding of adverse possession with respect to the northern portion nevertheless was clearly erroneous. It has long been the law in Connecticut that "[t]he doctrine of adverse possession is to be taken strictly. Huntington v. Whaley, 29 Conn. 391, 398 (1860)." (Internal quotation marks omitted.) Roche v. Fairfield, supra, 186 Conn. 499; see also Schulz v. Syvertsen, 219 Conn. 81, 91, 591 A.2d 804 (1991); Robinson v. Myers, 156 Conn. 510, 517, 244 A.2d 385 (1968); Hurlburt v. Bussemey, 101 Conn. 406, 412, 126 A. 273 (1924); Matto v. Dan Beard, Inc., supra, 15 Conn. App. 475; Woycik v. Woycik, 13 Conn. App. 518, 522, 537 A.2d 541 (1988); Lazoff v. Padgett, 2 Conn. App. 246, 248, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984); Clark v. Drska, 1 Conn. App. 481, 486, 473 A.2d 325 (1984). In the present case, there was no direct evidence of adverse possession with respect to the northern portion of the disputed area. The testimony from Constantine Lisiewski that he mowed grass "all the way back" is the only evidence of use by the plaintiff of the northern portion. Such evidence does not establish the length of time that Constantine Lisiewski mowed this grass or the frequency that he used the northern portion. This evidence pales in comparison to the details regarding the southern portion, concerning which there was testimony from several witnesses regarding the frequency and length of time that the southern portion of the disputed area was adversely possessed by the plaintiff and members of his family. At best, the testimony of Constantine Lisiewski provides an inference of use of the northern portion. "A finding of adverse possession is not to be made out by inference, but by clear and positive proof . . . [Cjlear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis added; internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., 69 Conn. App. 839, 844, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002); see also Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989); Hurlburt v. Bussemey, supra, 101 Conn. 412; Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 780, 890 A.2d 645 (2006); LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 672 n.3, 525 A.2d 140 (1987). We conclude, therefore, that the court's finding of adverse possession with respect to the northern portion of the disputed area was clearly erroneous. The judgment is affirmed with respect to the southern portion of the disputed area. The judgment is reversed with respect to the northern portion of the disputed area and the case is remanded for further proceedings to determine the location of the northern boundary of the land that the plaintiff acquired by adverse possession. We further direct the court to consider only the portion of the disputed area north of where the hemlock bushes begin to turn eastward and south of the tree line that lies immediately north of the gravel driveway. In this opinion the other judges concurred. Appendix The plainl ii'f also claimed that he was entitled to a prescriptive easement over the gravel driveway. The trial court found in favor of the plaintiff with respect to the prescriptive easement issue, and we affirmed that portion of the court's judgment. See Lisiewski v. Seidel, supra, 72 Conn. App. 872-75. We note that, through no fault of counsel, the trial exhibits have been lost. The parties attempted to reconstruct the record for our review and, following oral argument, submitted a surveyor's map, along with copies of the relevant deeds. The parties were unable, however, to re-create the photographs of the properties and the disputed area. Although the photographs undoubtedly would have been helpful and facilitated our review, we conclude that their availability did not make a material difference in the outcome of this appeal due to the other exhibits and the transcripts. See Neiditz v. Morton S. Fine & Associates, Inc., 2 Conn. App. 322, 325 n.5, 479 A.2d 249 (1984), rev'd in part on other grounds, 199 Conn. 683, 508 A.2d 438 (1986); see also Stern & Co. v. International Harvester Co., 146 Conn. 42, 46-47, 147 A.2d 490 (1958). Because the court found in favor of the plaintiffs claim regarding title, it was not required to reach his claim of adverse possession. See Bond v. Benning, 175 Conn. 308, 313-14, 398 A.2d 1158 (1978). To constitute color of title, an instrument should sufficiently describe the property and claim to convey title. 2 C.J.S., supra, § 91-92, p. 524. See the crosshatched area on the appendix to this opinion.

Opinion SCHALLER, J. The defendant, Richard J. Janulawicz, appeals from the judgment of conviction rendered after the trial court accepted his conditional plea of nolo contendere to two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), two counts of carrying a dangerous weapon in violation of General Statutes § 53-206 (a) and one count of threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). The court accepted the defendant's conditional plea after it denied his motion to suppress. On appeal, the defendant claims that the court improperly found that his girlfriend had consented to the initial search of his home. We affirm the judgment of the trial court. In ruling on the defendant's motion to suppress, the court found the following facts. On October 4, 2002, at approximately midnight, Officers Scott Werner and Todd Kozaryn of the Bristol police department responded to a 911 call alleging a domestic disturbance. The call was made by a female complainant, who indicated that the disturbance was occurring at a "one-family" residence located at 73 Summer Street in Bristol. When the officers arrived, the female complainant, Kristen Duren, came out of the home in her pajamas and met the officers on the front porch of the residence. Duren explained to the officers that the defendant, who was her boyfriend and the father of her baby, had been drinking and had become "mouthy" toward her. She indicated that she wanted the officers to speak to him and informed them that he was "upstairs in their shared bedroom." Werner then asked Duren if he could go upstairs and speak to the defendant. Duren responded in the affirmative and motioned toward the upstairs bedroom. Thereafter, Werner proceeded into the home and toward the upstairs bedroom. As Werner reached the second floor landing, he encountered the defendant, who was holding a long gun. Werner immediately retreated outside the home. It is undisputed that an extended standoff between the defendant and the police ensued that concluded with the defendant's eventual surrender to police officers. Following the defendant's arrest, the police requested that Duren sign a consent to search form in order to allow them to enter the home and to search for weapons. Duren signed the consent form, and the police subsequently recovered a rifle, a shotgun and a bag of ammunition from the residence. On June 27, 2003, the defendant filed a motion to suppress all items seized from his home, arguing that the search and seizure was illegal in that it was conducted without a warrant and without sufficient legal justification. On January 14, 15 and 16, 2004, the court held a hearing on the defendant's motion to suppress. At the suppression hearing, the defendant's main arguments were that Duren lacked the authority to consent to a search of the residence and that Duren actually did not consent to Werner's initial entry into the home. With respect to the former, Duren testified that she and the defendant resided in separate apartments within 73 Summer Street. As to the latter, Duren testified that she was asked only where the defendant was located and replied that "he's upstairs" while motioning toward the staircase. According to Duren, the officers never requested, and she never gave, her consent to Werner's initial entry, and it was never her intent to allow the officers to enter the home. Both Werner and Kozaryn testified that they asked Duren "where the male part of this complaint was," and she responded that "he's upstairs in the bedroom" and pointed toward the staircase. Werner further testified that he then asked if he could go in to speak to the defendant and that Duren had responded in the affirmative. Kozaryn also testified that he believed Duren had given the officers permission to enter the home and to speak to the defendant. Werner and Kozaryn did acknowledge, however, that neither specifically had asked Duren for "permission" or "consent" to enter the home. In ruling on the defendant's motion to suppress, the court found Duren's testimony that she and the defendant resided in separate residences to be a "recent fabrication intended solely for the purpose of establishing a basis for the defendant's motion to suppress." The court further concluded that there was credible evidence that Duren "requested and directed the police to go inside the residence and talk to the defendant . . . ." Accordingly, on January 20, 2004, the court denied the defendant's motion to suppress and, on April 6, 2004, issued a written memorandum of that decision. The defendant thereafter entered a conditional plea of nolo contendere to the charges of two counts of criminal possession of a firearm, two counts of carrying a dangerous weapon and one count of threatening in the second degree. The court accepted the defendant's plea and, on May 13, 2004, sentenced him to a total effective term of ten years imprisonment, execution suspended after seven years, and three years of probation. This appeal followed. The defendant's sole claim on appeal is that Duren did not consent to Werner's initial entry into the home. The defendant presently does not challenge Duren's authority to consent to the search, nor is he arguing that she was coerced in any way. Rather, in support of his claim, the defendant argues that the court's finding that Duren consented to Werner's initial entry into the defendant's residence was not supported by the evidence and is clearly erroneous. We disagree. "On appeal, we apply a familiar standard of review to atrial court's findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence." (Internal quotation marks omitted.) State v. Douros, 90 Conn. App. 548, 553, 878 A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005). "Because a trial court's determination of the validity of a . . . search . . . implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses. " (Emphasis in original; internal quotation marks omitted.) State v. Paradis, 91 Conn. App. 595, 607-608, 881 A.2d 530 (2005). "On a motion to suppress, [i]t is the function of the trier to determine the credibility of witnesses and the weight to be given their testimony. . It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. . A warrantless search or entry into a house is not unreasonable, however . . . when a person with authority to do so has freely consented. . It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. . . . Such consent may not be established by mere acquiescence to police authority. . . . Whether there was valid consent to search is a factual question that will not be lightly overturned on appeal." (Internal quotation marks omitted.) State v. Douros, supra, 90 Conn. App. 554. In the present case, there was ample evidence from which the court could conclude that Duren consented to Werner's initial entry into the home. As noted previously, testimony was adduced at the suppression hearing that Duren initiated the contact with the police and specifically requested that they speak to the defendant. Furthermore, both Werner and Kozaryn testified that they asked Duren "where the male part of this complaint was," and that she responded that "he's upstairs in the bedroom" and pointed toward the staircase. In addition, Werner further testified that he then asked if he could go in to speak to the defendant and that Duren responded in the affirmative. Although it is true that Duren disputed the officers' account of this interaction, it is axiomatic that "[wjhere there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses." (Internal quotation marks omitted.) State v. Douros, supra, 90 Conn. App. 556. The court expressly found the officers' testimony more credible than that of Duren, and it was within its province to do so. On the basis of our careful review of the record and the court's findings, we conclude that the court's determination that Duren consented to Werner's initial entry into the home was not clearly erroneous. The court, therefore, properly denied the defendant's motion to suppress. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 54-94a provides: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nopjurisdictional defects in the criminal prosecution." The court did not indicate on the plea form whether its ruling on the motion to suppress was dispositive of the case. Consequently, during the pendency of this appeal, the state moved to remand the matter for a determination of whether the denial of the defendant's motion to suppress was dispositive. This court granted the state's motion, and on October 11, 2005, the trial court issued a written memorandum indicating that its ruling on the motion was indeed dispositive. In his motion to suppress, as well as his statement of the issues, the defendant claimed that the court improperly found that Duren had "apparent and/or actual authority to consent to a search of the defendant's residence." The defendant, however, has not briefed this issue on appeal and, accordingly, it is deemed abandoned. See State v. Abraham, 84 Conn. App. 551, 561, 854 A.2d 89 ("[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court" [internal quotation marks omitted]), cert. denied, 271 Conn. 938, 861 A.2d 514 (2004). It is uncontested that, subsequent to the defendant's arrest, Duren signed a written consent to search form. Although this fact would not serve to remedy a prior illegal search, the court noted that Duren's subsequent written consent constituted support for her original intention to consent to Werner's initial entry into the residence. We previously have found similar conduct sufficient to constitute consent. In State v. Cardona, 6 Conn. App. 124, 132, 504 A.2d 1061 (1986), the police arrived at a defendant's home, and a female resident answered the door. One of the officers asked the woman whether the defendant was home, and she instructed them that the defendant was upstairs and proceeded to open the door wider. Id. When the officer once again asked for the defendant, the woman "backed up, gestured up the stairs and stated that the defendant was upstairs." Id. On appeal, this court concluded that in viewing the totality of the circumstances, consent to enter the residence validly was given. Id., 134-35. We note that the fact that neither Werner nor Kozaryn specifically asked for "consent" or "permission" to enter the home is not dispositive. Connecticut courts have refused to attach talismanic significance to the presence or absence of particular words or phrases. See, e.g., State v. Robinson, 227 Conn. 711, 731, 631 A.2d 288 (1993) (failure to use "talismanic" words does not indicate failure to make necessary determination); State v. Onofrio, 179 Conn. 23, 45, 425 A.2d 560 (1979) ("[t]here is no talismanic ritual of words that must be spoken by a dying declarant" to render statements admissible); State v. Peters, 89 Conn. App. 141, 146, 872 A.2d 532 ("the fact that the court did not use the specific words 'psychiatric disabilities' does not warrant reversal under the plain error doctrine"), cert. denied, 274 Conn. 918, 879 A.2d 895 (2005); State v. Peters, 40 Conn. App. 805, 823, 673 A.2d 1158 (jury charge not improper for failure to recite talismanic words), cert. denied, 237 Conn. 925, 677 A.2d 949 (1996).

Opinion WEST, J. In this marital dissolution matter, the defendant, William F. Russell, Jr., appeals from the judgment of the trial court issuing certain orders sought by the plaintiff, Burgess Russell, in her postjudgment motions for contempt. On appeal, the defendant claims that the court improperly ordered him to pay expenses associated with the medical treatment of the parties' son, P, at a facility in New Jersey. We reverse in part the judgment of the trial court. The marriage of the plaintiff and the defendant was dissolved on September 23, 2004. The court accepted the parties' separation agreement and incorporated it by reference into the judgment of dissolution. Article II, § 2.4, of the agreement provides that "[t]he [defendant] shall pay and be responsible for all college expenses for [the parties' son, A] at Boston University or its equivalent through graduation, and the expenses for [P] for completion [of certain treatment at a New Jersey facility] and shall hold the [plaintiff] harmless thereon." The plaintiff filed two motions for contempt on February 28 and March 29, 2005, claiming that the defendant had failed to comply with that section of the agreement. As a result of the defendant's noncompliance, the plaintiff claimed that she had been sued in New Jersey for $24,224.23 owed to the facility for P's medical treatment. The defendant countered that he was responsible for P's expenses incurred at the facility only after the date of dissolution. The court ruled in favor of the plaintiff, finding that article II, § 2.4, of the agreement clearly and unambiguously obligated the defendant to pay all of P's expenses at the facility. The court ordered the defendant to pay the plaintiff $24,224.23, and to reimburse her for all attorney's fees and litigation costs associated with the New Jersey lawsuit. The defendant then filed this appeal. "Where a judgment incorporates a separation agreement, the judgment and agreement should be con straed in accordance with the laws applied to any contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . The court's determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de novo. . . . "A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . "In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so." (Citations omitted; internal quotation marks omitted.) Detels v. Detels, 79 Conn. App. 467, 471-72, 830 A.2d 381 (2003). Our examination of article II, § 2.4, of the agreement indicates that that section is not clear and unambiguous. The first part of that section refers to "all college expenses for [A] at Boston University," while the second part refers to "the expenses for [P] for completion at [the New Jersey facility] . . . ." It is not clear and certain from the language alone whether the parties intended "the expenses . . . for completion" to include all expenses associated with P's treatment program or only certain expenses associated with his "completion" of that program. The ambiguity of "the expenses . . . for completion" emanates from the language, particularly when considered in light of the provision that the defendant was to pay "all college expenses for [A] at Boston University . . . .''If article II, § 2.4, of the agreement had referred to "all expenses for [P] at [the New Jersey facility]," we would find it difficult to conclude that that hypothetical language was ambiguous. The parties' actual use of "the expenses . . . for completion," however, leads us to determine that the parties' intent is not clear and certain from the language itself. We need not torture the words of article II, § 2.4, in order to find ambiguity because that section does not convey a definite and precise intent. The court must consider extrinsic evidence in order to determine the parties' intent regarding the defendant's obligation to pay expenses associated with P's treatment at the New Jersey facility. The judgment is reversed only as to the orders regarding the debt owed to the New Jersey facility and the attorney's fees of the plaintiff and litigation costs associated with that debt and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects. In this opinion the other judges concurred. A copy of the complaint in the New Jersey action was marked as exhibit one. That complaint is stamped as having been filed on March 21, 2005, and names Burgess Russell and William F. Russell, Jr., as defendants. The complaint alleges in relevant part that "there remains due and owing from . . . Burgess Russell . . . $24,224.23 which sum represents the total charges outstanding . . . and from . . . William F. Russell . . . $10,117.17, which represents a portion of the total charges outstanding for services rendered . . . from July 13, 2004 to the present, exclusive of prejudgment interest and counsel fees." The court also issued other orders and found that the defendant was not in contempt, but those portions of the court's judgment, are not relevant to this appeal. In light of our decision to remand the case, it is unnecessary for us to consider two other aspects of the defendant's appeal. First, the defendant claims that the plaintiff improperly amended her financial affidavit without his knowledge after he had signed the separation agreement and just one day before the court rendered the judgment of dissolution. The defendant points out that at the time the parties signed the agreement, the plaintiffs affidavit listed debts of $26,400 owed to the New Jersey facility and $78,000 owed to Boston University. The plaintiffs amended affidavit omitted both of those debts. The defendant argues that he relied on the information in the plaintiffs original affidavit when he signed the agreement and directs us to article III, § 3.1, of the agreement, which provides that "[t]he parties shall be responsible for the debts shown on their respective financial affidavits and shall hold the other harmless thereon." In its memorandum of decision on the plaintiffs motions for contempt, the court determined that the propriety of the plaintiffs amended affidavit was irrelevant because the agreement clearly and unambiguously obligated the defendant to pay the entire debt owed to the New Jersey facility. Because we conclude that the court must resort to extrinsic evidence to determine the parties' intent regarding that debt, the court may revisit its consideration of the plaintiffs affidavits on remand. The second aspect of the defendant's appeal that we need not consider is his claim that the court improperly ordered him to pay the plaintiffs attorney's fees and litigation costs associated with the New Jersey lawsuit. On remand, the court may revisit that order after it determines whether the defendant is responsible for the entire debt owed to the New Jersey facility or only a portion of it. It also bears noting that a judgment as to liability only, without a determination of damages, is not an appealable final judgment. The defendant may not appeal from an order to pay attorney's fees and litigation costs until the trial court makes a finding as to the amount of those fees and costs. See Burns v. General Motors Corp., 80 Conn. App. 146, 150 n.6, 833 A.2d 934, cert. denied, 267 Conn. 909, 840 A.2d 1170 (2003).

Opinion FOTI, J. The defendant, Floyd A. Windley, appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) and failure to obey a traffic control signal in violation of General Statutes § 14-299 (b) (3). The trial court also found that the defendant was a third time offender pursuant to General Statutes § 14-277a (g) (3) and sentenced him accordingly. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction as a third time offender and (2) the court improperly failed to order a presentence investigation report. We affirm the judgment of the trial court. On November 1,2002, at approximately 2 a.m., Officer Robert Villano of the Hamden police department observed a blue Chevrolet Blazer pass through the red traffic signal at the intersection of Dixwell Avenue and Morse Street. Villano initiated a traffic stop of the Blazer and observed that the defendant was the driver and sole occupant. The defendant produced his driver's license, and Villano noted that the photograph on the license matched the defendant's physical description. Villano detected the odor of alcohol on the defendant's breath and observed that his eyes were glassy and his speech was slurred. The defendant stated that he had consumed three alcoholic drinks. Villano then administered field sobriety tests. After failing the horizontal gaze nystagmus test and refusing to perform the walk and turn test and the one-leg stand test, the defendant was arrested. Following a trial to the court, the court found the defendant guilty as a third time offender and sentenced him to three years incarceration, execution suspended after one year, followed by three years of probation. This appeal followed. I The defendant first claims that the evidence was insufficient to support (1) his conviction and (2) the court's finding that he was a third time offender. We disagree with both parts of the defendant's claim. We first set forth the standard of review. "[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Bloom, 86 Conn. App. 463, 471-72, 861 A.2d 568 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1081 (2005). A The first part of the defendant's claim is that there was not enough evidence to support his conviction. Although the defendant concedes that he drove through a red traffic signal, he argues that he was not speeding or driving erratically. He further points out that he safely stopped his vehicle at Villano's direction, responded to Villano's questions and produced his driver's license. The defendant also contends that there was insufficient evidence that he was the person whom Villano arrested on November 1, 2002, because Villano was unable to identify the defendant at trial on March 8, 2005, more than two years after the arrest. "Driving while under the influence of liquor means, under the law of Connecticut, that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle." (Internal quotation marks omitted.) State v. Gordon, 84 Conn. App. 519, 526, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004). The defendant clearly lacked the ability to function properly in operating his vehicle because he drove through a red traffic signal. Villano testified that the defendant's eyes were glassy, his speech was slurred and his breath smelled of alcohol. The defendant also admitted to Villano that he had consumed three alcoholic drinks. Villano confirmed that the defendant had produced his own driver's license because the photograph on the license matched the defendant's physical description. Villano's inability to identify the defendant in court more than two years after the arrest is of no significance. Our case law does not support the proposition that an officer must be able to make an in-court identification of every person that that officer has arrested. Villano testified that he had filled out the misdemeanor summons and complaint at the time of the arrest, recording the defendant's name, address and other personal information from his driver's license. Construing the evidence in the light most favorable to sustaining the conviction, we determine that the court reasonably could have concluded that the defendant was guilty beyond a reasonable doubt. B The second part of the defendant's claim is that there was not enough evidence to support the court's finding that he was a third time offender. The state presented evidence that the defendant previously had been convicted of operating a motor vehicle while under the influence of intoxicating liquor on October 7 and 23, 1998. The defendant points out that not all of the court documents pertaining to those convictions bore his social security number. He consequently argues that the evidence was insufficient that he was the subject of those convictions. We find that argument entirely unpersuasive because the documents relating to the October, 1998 convictions contained the defendant's name, address, date of birth, physical description and driver's license number. In light of the numerous indicators that the defendant was the same person who had been convicted on October 7 and 23,1998, we conclude that the court reasonably could have found beyond a reasonable doubt that the defendant was a third time offender pursuant to § 14-277a (g) (3). See id., 534.....35. II The defendant next claims that the court improperly failed to order a presentence investigation report. Practice Book § 43-3 (a) provides in relevant part that "[i]f the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation . . . ." See also General Statutes § 54-91a (a). The statutory penalty for a third conviction of the crime of operating a motor vehicle while under the influence of intoxicating liquor is a mandatory minimum sentence of one year imprisonment and a maximum sentence of three years imprisonment. See General Statutes § 14-227a (g) (3) (B). Because that crime carries the possibility of more than one year imprisonment, the court should have ordered a presentence investigation. We nonetheless recognize that "[t]he sole purpose [of a presentence investigation] is to enable the court, within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime. . . . The primary value of a [presentence investigation] stems from the information contained therein, not from the report itself. Most of this information can be brought to the trial court's attention by either party by means other than a [presentence investigation]." (Citation omitted; internal quotation marks omitted.) State v. Patterson, 236 Conn. 561, 574-75, 674 A.2d 416 (1996). In the present case, we are persuaded that the court had enough knowledge of the defendant's criminal record and present condition, as well as the circumstances of the offense, to impose an appropriate penalty without the assistance of a presentence investigation report. The court sentenced the defendant on March 14, 2005, just five days after it had found that he was a third time offender under § 14-277a (g) (3). Defense counsel informed the court that the defendant had a medical condition and had complied with all orders to appear' in court. The defendant has not suggested that a presentence investigation would have uncovered any other relevant information that would have resulted in a different sentence. See State v. Williams, 205 Conn. 456, 477, 534 A.2d 230 (1987). We therefore conclude that the court's failure to order a presentence investigation constituted harmless error. The judgment is affirmed. In this opinion the other judges concurred. The defendant on appeal does not challenge his conviction of failure to obey a traffic control signal. "Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball." (Internal quotation marks omitted.) State v. Balbi, 89 Conn. App. 567, 570-71, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005). As part of his claim of insufficient evidence, the defendant argued in his brief that the court should have conducted a hearing to determine the scientific reliability of horizontal gaze nystagmus evidence. At oral argument before this court, the defendant conceded that that argument lacks merit. We previously have determined that horizontal gaze nystagmus evidence satisfies the requirements for the admission of scientific evidence. State v. Balbi, 89 Conn. App. 567, 575-77, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005). The defendant raised the ground of insufficient evidence in his motion to dismiss the information. Even if the defendant did not preserve his claim properly, we will review it because "any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right and is enütled to review whether or not the claim was preserved at trial." State v. Coleman, 83 Conn. App. 672, 679, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). The defendant also suggests that the state improperly introduced the court documents into evidence through a deputy clerk because that clerk "was not the individual responsible for the creation, maintenance, custody or control" of the documents. The defendant's suggestion is without merit. The documents were certified copies provided by the Superior Court records center and bore a Superior Court seal. They were therefore self-authenticating pursuant to § 9-1 (b) of the Connecticut Code of Evidence. In concluding his brief, the defendant suggests that we should invoke our supervisory powers to reverse his conviction. Those powers "are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Internal quotation marks omitted.) State v. Sargent, 87 Conn. App. 24, 31 n.4, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005). We determine that the defendant's claims do not implicate any issues of the utmost seriousness for the integrity of his trial or the perceived fairness of the judicial system.

Opinion DiPENTIMA, J. The acquittee, Joel C. Kelly, challenges the order of the trial court committing him to the jurisdiction of the psychiatric security review board (board) for a period not to exceed eight years. He seeks plain error review of his unpreserved claim that in ordering commitment pursuant to General Statutes § 17a-582, the court failed to apply the statutorily mandated standards of General Statutes § 17a-580. We remand the matter for articulation. In February, 2004, the acquittee was charged with kidnapping in the second degree in violation of General Statutes § 53a-94 (a), threatening in the second degree in violation of General Statutes § 53a-62 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The charges stemmed from an incident that occurred on June 7,2003, in which the acquittee abducted a young child and interfered with the return of that child to her guardians by threatening them verbally and physically. The court found the acquittee not guilty of all criminal charges by reason of mental defect or disease pursuant to General Statutes § 53a-13. As a result of that finding, the court committed the acquittee to the custody of the commissioner of mental health and addiction services for confinement and evaluation pursuant to § 17a-582. Thereafter, on October 4,2004, following a commitment hearing during which the court made findings pursuant to § 17a-582 (e), the court committed the acquittee to the jurisdiction of the board for a period not to exceed eight years. This appeal followed. The acquittee claims that in ordering his commitment, the court failed to apply the proper statutoiy standards pursuant to § 17a-582 (e) requiring the court to conclude that (1) he presents a danger to himself or others, and (2) there exists a nexus between the acquittee's psychiatric disability and danger to himself or others. The acquittee failed to preserve his claim for appellate review and seeks plain error review pursuant to Practice Book § 60-5. "The plain error doctrine is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 239-40, 881 A.2d 160 (2005). "A trial court commits plain error when it fails to apply a clearly relevant statute to the case before it." (Internal quotation marks omitted.) State v. Guckian, 27 Conn. App. 225, 246, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993). The essence of the acquittee's claim is that the court committed him to the jurisdiction of the board without complying with the requirements set forth in § 17a-580 through 17a-582. It is necessary, therefore, to first discuss the relevant provisions of those statutory sections to determine whether plain error exists. Pursuant to the relevant provisions of § 17a-582 (e), when any person charged with an offense is found not guilty by reason of mental disease or defect pursuant to § 53a-13, "the court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society, make one of the following orders: (1) [i]f the court finds that the acquittee is a person who should be confined . . . the court shall order the acquittee committed to the jurisdiction of the board . . . ." General Statutes § 17a-582 (e). A person who should be confined is defined in § 17a-580 (10) as "an acquittee who has psychiatric disabilities . to the extent that his discharge . . . would constitute a danger to himself or others . . . ." In State v. March, 265 Conn. 697, 830 A.2d 212 (2003), our Supreme Court further interpreted the statutory phrase "[d] anger to self or to others" according to § 17a-581-2 (a) (6) of the Regulations of Connecticut State Agencies as meaning "the risk of imminent physical injury to others or self, including the risk of loss or destruction of the property of others." (Internal quotation marks omitted.) Id., 709; see also State v. Peters, 89 Conn. App. 141, 145, 872 A.2d 532, cert. denied, 274 Conn. 918, 879 A.2d 895 (2005); State v. Kalman, 88 Conn. App. 125, 136, 868 A.2d 766, cert. denied, 273 Conn. 938, 875 A.2d 44 (2005). It is, therefore, necessary for a court to make the requisite findings of fact, which include that the acquittee is a danger to himself or to others because of his psychiatric disability, before ordering commitment. During the course of the hearing, the court heard testimony from Mark S. Cotterell, a forensic psychiatrist employed at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting), where the acquittee was committed for initial evaluation and subsequent commitment. Cotterell testified that the acquittee was not a candidate for discharge and recommended commitment to the jurisdiction of the board. The state also introduced two reports prepared by Cotterell. In the first report prepared April 7, 2004, Cotterell recommended commitment and cited the danger the acquittee posed to society. In a subsequent report dated August 25, 2004, Cotterell recommended the commitment of the acquittee and noted his unwillingness to accept treatment for his psychiatric disability. Cotterell also referenced an earlier report prepared by Peter M. Zeman, a psychiatrist with the Institute of Living Medical Group, P.C., which was used by the acquittee during his criminal trial to establish his mental state at the time of the incident. In his defense, the acquittee testified and submitted letters from his family, and his defense counsel cross-examined Cotterell. At the conclusion of the hearing, the court made the following oral decision. "Based on the testimony I have heard [and] read, I am going to commit you to the [board] for a period not to exceed eight years, based on my findings, and I make this finding by clear and convincing evidence that you are still seriously mentally ill and in need of confinement in a hospital for those with psychiatric disabilities." The state argues that inherent in the court's decision are the requisite findings that the acquittee presented a danger to himself or to others on the basis of his psychiatric disability pursuant to § 17a-582 (e). Specifically, the state contends that "[a]ll the requisite underlying findings are clearly implied or, of necessity, subsumed inherently within the trial court's express conclusion." In support of this contention, it argues that the prosecutor's closing comments bolster its assertion that the court made such a finding. The prosecutor stated: "[T]he conclusions of Dr. Cotterell are clear that [the acquittee] would present a danger to himself or others if he were not confined to Whiting, at this time. The court needs to decide that period of commitment. It would be the state's recommendation that he be committed to the jurisdiction of the [board] for a period of time not to exceed ten years." We cannot agree that the state's closing argument, in which it commented on the evidence and suggested that the court reach a particular decision, evinces that the court actually made factual findings consistent with those assertions. The arguments and evidence presented by the state at the commitment hearing did not go undisputed by the acquittee. "It is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Internal quotation marks omit ted.) Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 227, 890 A.2d 509 (2006). The essential fact-finding function of the court cannot be supplanted on appeal by our reliance on any particular testimony or evidence that may have weighed more heavily when presented at the commitment hearing. We also cannot take on the role of fact finder. We, as a reviewing court, "cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found." (Internal quotation marks omitted.) State v. Clark, 160 Conn. 555, 556, 274 A.2d 451 (1970). The court found that the acquittee was "seriously mentally ill and in need of confinement in a hospital for those with psychiatric disabilities." The court did not make the necessary statutory findings concerning whether the acquittee presented a danger to himself or to others because of his psychiatric disability. Although the court may have had evidence before it to support such a finding, it nonetheless failed to state the requisite findings specifically when issuing its oral decision. There is only minimal discussion of how the court came to its conclusion that the acquittee should be committed to the jurisdiction of the board. We must conclude, therefore, that the appellate record is not amenable to meaningful appellate review. It is a fundamental principle in our jurisprudence that, "[i]t is the duty of the judge who tried the case to set forth the basis of his decision." Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981). We note that neither the acquittee nor the state requested an articulation of the court's decision. Their failure to make such a request, however, does not prevent this court from doing so on the basis of the facts of this case. See Practice Book § 60-5. "Where the factual or legal basis of a trial court's decision is unclear, ambiguous, incomplete or the court has failed to state any basis for its decision, this court may remand the case, pursuant to Practice Book § 60-5, for further articulation of the basis of the trial court's decision." Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18, 24, 842 A.2d 601 (2004); see also State v. Wilson, 199 Conn. 417, 434-35, 513 A.2d 620 (1986). Our Supreme Court has chosen such a course in an appeal from an order of commitment where the trial court's findings were unclear. See State v. Lafferty, 189 Conn. 360, 363, 456 A.2d 272 (1983). We conclude that such a situation presents itself here. The case is remanded with direction to articulate the basis for committing the acquittee to the jurisdiction of the board pursuant to § 17a-582 and, specifically, to state whether at the time of the commitment hearing the acquittee presented a danger to himself or to others because of his psychiatric disability. We retain jurisdiction over the appeal. In this opinion the other judges concurred. General Statutes § 53a.-13 (a) provides in relevant part: "In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law." Quoting State v. Reagan, 209 Conn. 1, 9, 546 A.2d 839 (1988), the state suggests that we assume the role of fact finder because it asserts that "the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court's decision." After reviewing the record, we cannot agree that the factual conclusions necessary to support committing the acquittee to the jurisdiction of the board are either obvious or inherent in the court's decision. Practice Book § 60-5 provides in relevant part that "[i]f the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court's factual findings or decision. . .

Opinion PETERS, J. An appeal from a Probate Court to the Superior Court requires a showing of aggrievement. General Statutes § 45U-186. The narrow issue in this probate appeal is whether the status of being an heir is, without additional facts, sufficient to establish aggrievement. The broader issue is whether, if that status is insufficient, the heir may remedy this defect in her appeal by moving to amend the notice of appeal required by General Statutes § 45a-191. In dismissing the heir's appeal, the trial court relied on older case law holding that a defective notice of appeal can never be amended. See Feigner v. Gopstein, 139 Conn. 738, 741, 97 A.2d 267 (1953); Exchange Buffet Corp. v. Rogers, 139 Conn. 374, 377-78, 94 A.2d 22 (1952). We must decide whether those cases continue to have precedential force after Baskin's Appeal from Probate, 194 Conn. 635, 640-41, 484 A.2d 934 (1984). Because we conclude that the procedural rules governing a probate appeal now are those stated in Baskin's Appeal from Probate, we reverse the judgment of the trial court. After receiving permission from the Southbury Probate Court on November 4, 2004, the plaintiff, Holly Flor, brought an appeal to the Superior Court from an order of the Probate Court approving the final accounting of the defendant, Michael R. Pohl, conservator of the estate of Patricia Ann Schuetz. The plaintiff, who is Schuetz' daughter, had been permitted to challenge the validity of the accounting in the Probate Court, but was unsuccessful on the merits. In her notice of appeal to the Superior Court, the plaintiff identified herself as an heir at law and alleged that she was "aggrieved by the order and decree of the Probate Court." The defendant filed a timely motion to dismiss in which he alleged that the plaintiff had failed to establish her aggrievement because her notice of appeal did not comply with the requirement of § 45a-191 that she state her interest in the subject matter of the probate order. At a hearing on the defendant's motion, it became clear that Schuetz had died before the completion of the final accounting. The defendant virtually conceded that, if this fact had been pleaded in the notice of appeal, the plaintiff would have established her aggrievement. Although the defect in the plaintiffs appeal was, therefore, "technical," the defendant maintained that the plaintiffs appeal was subject to dismissal for lack of a showing of aggrievement. The trial court granted the defendant's motion to dismiss. It observed that, pursuant to § 45a-186 and 45a-191, a probate appeal is subject to dismissal for lack of a showing of aggrievement unless the notice of appeal identifies the appellant's interest in the subject matter of the decree and the adverse effect of the decree on the interest. It then held that "[f]ailure to meet those requirements makes the appeal subject to a motion to dismiss, and insufficiency of the appeal cannot be cured in the Superior Court by amendment or by offering testimony to overcome a defect apparent on the face of the appeal. Exchange Buffet Corp. v. Rogers, [supra, 139 Conn. 377-78]." The court also cited Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 482, 338 A.2d 497 (1973), and Feigner v. Gopstein, supra, 139 Conn. 738. The court's description of these cases is entirely accurate. The defendant, however, mischaracterizes their import. Failure fully to describe a claimant's interest in a probate decree is not a flaw that deprives the Superior Court of subject matter jurisdiction. Although aggrievement is a jurisdictional necessity, without which the Superior Court cannot hear a probate appeal, "[i]f an appellant is aggrieved but fails to show the basis for that aggrievement in the motion to appeal, the appeal is merely voidable." Hartford Kosher Caterers, Inc. v. Gazda, supra, 165 Conn. 483. Nonetheless, in this case, the defendant timely moved to avail himself of the opportunity to void the plaintiffs appeal. We assume, for the purposes of this appeal, that the trial court properly held that being an heir does not automatically establish aggrievement for the purposes of a probate appeal. See, e.g., Fitzhugh v. Fitzhugh, 156 Conn. 625, 239 A.2d 513 (1968); Graham v. Estate of Graham, 2 Conn. App. 251, 477 A.2d 158, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). The question remains, however, whether the cases holding that an appellant from probate has no right to move to amend a notice of appeal to demonstrate aggrievement continue to be good law. Only recently, our Supreme Court in McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006), reiterated its capacious view of the law of standing by observing: "The concept of standing, as presented by the question of aggrievement, is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court. . In order to establish standing to appeal from a probate matter, a party must show that he or she is aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law . The test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected. . . . This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant." (Citations omitted; internal quotation marks omitted.) Id., 820-21. It is hard to square this view of the role of probate appeals with insistence on formal pleading niceties. We need not, however, speculate about the relationship between McBumey's view of aggrievement and the trial court's reliance on cases such as Exchange Buffet Corp. Although the trial court also cited Baskin's Appeal from Probate, supra, 194 Conn. 635, it failed to take into account a significant holding in that case. The Supreme Court's opinion in Baskin's Appeal from Probate begins with the observation that "[t]he nature of an appeal from probate underwent a substantial change with the decision of this court in Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969). There, this court clearly established that an appeal from probate is a de novo proceeding in which the Superior Court is not limited to the claims raised in the Probate Court. 'In an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the probate court, whether or not it was actually offered.' Prince v. Sheffield, supra, 294. 'In the traditional appeal, the scope of review is limited by the issues raised and the supportive evidence submitted in the lower court. In an appeal from probate, however, the informalities of the probate proceeding are corrected by permitting a full hearing in which new evidence may be submitted.' Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978). This court has gone so far as to allow the admission of evidence not even in existence at the time of the probate hearing." Baskin's Appeal from Probate, supra, 194 Conn. 641. The Supreme Court then went on to describe the proceedings in the case before it. "The dismissal of this appeal foreclosed any opportunity to amend the reasons of appeal to plead additional facts that would establish a claim that the decedent had been abandoned by [his] widow, as provided in the second sentence of [General Statutes] § 45-253 [now General Statutes § 45a-318], as a basis for an order concerning the custody and control of the decedent's remains. During oral argument, it was not disputed that such a claim had been made in the Probate Court. It would have been possible for the plaintiff to amend his reasons of appeal to include such a claim. Since our decision in Prince, the ability to amend the reasons of appeal accompanying the initiation of an appeal from probate is indistinguishable from the ability to amend pleadings in other civil actions in accordance with the appropriate sections of the Practice Book. The reasons of appeal serve essentially the same functions in defining issues and lim iting evidence as does the complaint in any civil matter. . . . This conclusion is supported by Practice Book § 194 [now § 10-76 (a)] and is a necessary consequence of the principles declared in Prince." (Citation omitted; emphasis added.) Id., 641-43. Finally, the Supreme Court discussed the propriety of filing a motion to dismiss to challenge a probate appeal. It noted "the difference between a motion to strike and a motion to dismiss in relation to an appeal from probate" and held that "where the question is merely the sufficiency of the pleading rather than the existence of a viable cause of action," a motion to dismiss should be denied. Id., 643. It follows that, in this case, as in Baskin's Appeal from Probate, the defendant's motion to dismiss should have been denied because the plaintiff should have been afforded an opportunity to amend her appeal. We disagree with the defendant's claim that this case is governed by Graham v. Estate of Graham, supra, 2 Conn. App. 251. Although Graham also involved an heir's challenge to the accounting rendered by a conservator, it is significantly different because, in that case, the mother's rights were restored and the conservator-ship was terminated before the final accounting, from which the mother did not appeal. Id., 252. Here, by contrast, it appears that only the plaintiff presently has an interest to challenge the defendant's accounting for his conservatorship of the property of the plaintiff's deceased mother. The judgment is reversed and the case is remanded for further proceedings in accordance with law. In this opinion the other judges concurred. General Statutes § 45a-186 (a) provides in relevant part: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. . . ." General Statutes § 45a-191 provides: "In each appeal from probate or from the actions of commissioners, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate." Referring to the fact of Schuetz' death, the defendant stated: "Unfortunately, that's what she should have said in the motion for permission to appeal. That would have set forth what her interest was. They didn't do that. That's the gist of my motion to dismiss, that the statute requires you to set forth what your interest is in the motion for appeal, and it isn't there. The mere fact that you allege to be an heir at law is not enough. That's what the cases clearly state. So, I think that's the answer for that. We are really looking at . . . whether there has been a technical compliance [with] the requirements of the statute, and it just isn't there."

Opinion SCHALLER, J. This criminal appeal returns to this court on remand from our Supreme Court; State v. Bermudez, 274 Conn. 581, 876 A.2d 1162 (2005); for resolution of the remaining claims of the defendant, Noel Bermudez. The defendant was convicted, following a jury trial, of three counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and one count of assault in the third degree in violation of General Statutes § 53a-61. State v. Bermudez, 79 Conn. App. 275, 276-77, 830 A.2d 288 (2003), rev'd, 274 Conn. 581, 876 A.2d 1162 (2005). In his first appeal, the defendant claimed that "(1) the evidence was insufficient to sustain his conviction, (2) the prosecutor engaged in misconduct that violated the defendant's right to a fair trial, (3) the court improperly excluded evidence of a witness' prior inconsistent statements, (4) the court improperly admitted into evidence the defendant's hospital records and (5) the court violated the defendant's right to a fair trial by overemphasizing the jury instructions on manslaughter in the first degree." Id., 277. In our decision, we concluded that the evidence was sufficient to sustain the defendant's conviction. Id., 282. We determined, however, that the prosecutor had engaged in misconduct that deprived the defendant of his constitutional right to a fair trial and reversed the judgment. Id., 289. We further held that the court improperly overemphasized the jury instructions on manslaughter in the first degree. Id., 277 n.3. Our Supreme Court granted the state's petition for certification to appeal, limited to the issues: "Did the Appellate Court properly conclude that: (1) prosecutorial misconduct deprived the defendant of a fair trial; and (2) the trial court improperly overemphasized the charge of manslaughter in the first degree in its instructions to the jury?" (Internal quotation marks omitted.) State v. Bermudez, 266 Conn. 921, 835 A.2d 61 (2003). Our Supreme Court ultimately concluded that this court improperly reversed the judgment on the ground of prosecutorial misconduct and that the trial court properly instructed the jury on manslaughter in the first degree. State v. Bermudez, supra, 274 Conn. 602-605. The judgment of this court was reversed and the case remanded with direction to consider the defendant's remaining claims on appeal. Id., 605. At the instruction of our Supreme Court, we now consider whether the trial court improperly (1) excluded evidence of a witness' prior inconsistent statements and (2) admitted the defendant's hospital records into evidence. We affirm the judgment of the trial court. The facts underlying the defendant's conviction were set out at length in State v. Bermudez, supra, 79 Conn. App. 275. "At approximately 4 a.m., on June 23, 2000, a Chevrolet Tracker was stopped at a red traffic signal on Chase Avenue in Waterbury. The vehicle the defendant was driving approached the traffic light traveling in the same direction as the Tracker. It struck the rear end of the Tracker at a speed of more than ninety miles per hour. The occupants of the Tracker, Stacy Maia and Nicolina Baratía, both died as a result of the collision. Cecilio Quinones, a passenger in the front seat of the defendant's vehicle, sustained fatal injuries as a result of the collision. Samuel Tirado, a second passenger in the defendant's vehicle sustained serious but nonfatal injuries as a result of the collision. It was later determined that the defendant was under the influence of marijuana and phencyclidine, also known as PCP, at the time of the collision. "Immediately following the collision, the defendant climbed out of the windshield of his vehicle as the driver's door would not open. The defendant pulled Quinones from the front seat of the vehicle. The defendant then collapsed next to Quinones on the street. "The defendant was arrested on an information dated October 2, 2000. The defendant was charged with three counts of manslaughter in the first degree in violation of § 53a-55 (a) (3) and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). A jury trial began on January 10, 2002. After the state rested, the defendant sought to have all of the charges dismissed and to obtain a judgment of acquittal as to all four counts. The court denied the defendant's motion for a judgment of acquittal. The defendant was convicted of three counts of manslaughter in the first degree and one count of the lesser included offense of assault in the third degree." State v. Bermudez, supra, 79 Conn. App. 277-78. Additional facts will be set forth as necessary. We now set forth the standard of review applicable to both of the defendant's claims. "It is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Internal quotation marks omitted.) State v. William C., 267 Conn. 686, 700-701, 841 A.2d 1144 (2004); see also State v. Skakel, 276 Conn. 633, 723-24, 888 A.2d 985 (2006). I The defendant first claims that the court improperly excluded evidence of a witness' prior inconsistent statements. Specifically, the defendant argues that the court abused its discretion by not allowing him to play an audiotape recording of statements made by Thomas Meier, a lieutenant in the Waterbury fire department, that contained inconsistencies when compared with his testimony. We disagree. The following additional facts are necessary for our discussion. The state called Meier as its second witness. Meier testified that at the time of the accident, he was sleeping at the fire station. The sound of the accident awakened him, and he observed two heavily damaged motor vehicles through an open window. Meier dressed quickly and ran downstairs where he alerted the dispatchers about the accident. He then gathered some equipment and proceeded outside to the crash site. Meier first went to the victims' sport utility vehicle and then to the vehicle operated by the defendant. He then went back to the sport utility vehicle and started examining the individuals inside. Meier then noticed that the vehicle driven by the defendant was on fire, so he went inside the fire station for additional help. Meier then ran back to the defendant's vehicle, where he observed that the passenger had been pulled out. The defendant extensively cross-examined Meier regarding his actions at the accident scene. Following this testimony, audio recordings of Meier's conversations with the dispatcher were discovered and turned over to the defendant. There was a recording of Meier's initial statements to the dispatcher while he was at the accident scene and his conversation with the dispatcher that occurred approximately one hour later. The court allowed the defendant to recall Meier for further cross-examination. Meier testified that he might have been "a little excited" when he initially called the dispatcher. Meier was asked several questions regarding his actions at the accident site and what he had told the dispatcher over the radio. He responded that he could not recall and that listening to a tape of the audio recordings could refresh his memory. The court then excused the jury and played the tape for Meier. After the jury returned, defense counsel continued his cross-examination of Meier. Meier admitted that his voice did not sound excited on the recording. He also acknowledged that he never specified the number of vehicles involved in the accident to the dispatcher or that he was leaving the firehouse. Meier conceded that he failed to tell the dispatcher that he was responding to the accident scene or that there were any injuries. He agreed that the members of the fire station were not dispatched until six minutes after his initial call and that he was "shocked and dumbfounded" as to the delay. The defendant then moved to have the audiotape played before the jury. The court heard argument by counsel on this issue outside the presence of the jury and concluded that the audio recordings were not admissible evidence. The court concluded that the recording of Meier's statements made at the accident scene would not be played for the jury because Meier admitted to the jury that he made those statements on the recording. With respect to Meier's later conversa tion with the dispatcher, the court determined that some portions of the recordings contained hearsay and that others failed to qualify as impeachment evidence. As a preliminary matter, we set forth the applicable legal principles. "Impeachment of a witness by the use of a prior inconsistent statement is proper only if the two statements are in fact inconsistent. . . . Moreover, the inconsistency must be substantial and relate to a material matter. . . . Since the purpose of such evidence is to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true . . . the inconsistency must be substantial and relate to a material matter. . In determining whether an inconsistency actually exists, the testimony of the witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Moreover, statements from which a possible inference of inconsistency may be drawn are insufficient for the purpose of impeachment. . . . The trial court is vested with wide discretion as to what may be admitted as a prior inconsistent statement for impeachment purposes." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 763-64, 574 A.2d 182 (1990); State v. Abernathy, 72 Conn. App. 831, 841, 806 A.2d 1139, cert. denied, 262 Conn. 924, 814 A.2d 379 (2002); see also Conn. Code Evid. § 6-10. With respect to the initial conversations between Meier and the dispatcher, the court did not determine that there were no inconsistencies between his testimony and his prior statements. The court instead concluded that there was no reason to play the audiotape because Meier acknowledged his prior statements. Subsection (c) of § 6-10 of the Connecticut Code of Evidence provides in relevant part that "[i]f a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. . . (Emphasis added.) Additionally, the appellate courts in this state have established that when a witness admits to making a prior inconsistent statement, additional evidence of the inconsistency is merely cumulative. State v. McDowell, 179 Conn. 121, 127, 425 A.2d 935 (1979); State v. Correia, 33 Conn. App. 457, 463, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); State v. Graham, 21 Conn. App. 688, 704, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); State v. Daskam, 10 Conn. App. 50, 53, 521 A.2d 587, cert. denied, 203 Conn. 806, 525 A.2d 520 (1987); see State v. Chapman, 16 Conn. App. 38, 47, 546 A.2d 929, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988). With regard to the recording of the later conversation between Meier and the dispatcher, the court concluded that some portions of the statement were inadmissible hearsay and that others were consistent with his testimony. The defendant failed to perfect the appellate record by seeking an articulation of which statements were inadmissible hearsay and which were not inconsistent testimony. The record, therefore, is not adequate for our review. "This court's role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate." (Citation omitted; internal quotation marks omitted.) State v. Sargent, 87 Conn. App. 24, 30, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005). As it is not the function of this court to find facts when the record is devoid of such findings, we decline to review the defendant's claim. We further note that the defendant's brief fails to discuss sufficiently his claim on appeal. As we previously noted, we do not address the merits of claims that have been briefed inadequately. See footnote 2. We decline, therefore, to address the defendant's claim with respect to the admissibility of the recording of the later conversation between Meier and the dispatcher. We emphasize that the decision to admit extrinsic evidence for impeachment purposes is vested in the liberal discretion of the trial court. State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988). We conclude that in the present case, the court did not abuse this discretion by declining to play the audio recordings to the jury. II The defendant next argues that the court improperly admitted his hospital record into evidence. Specifically, the defendant claims that the record was not admissible pursuant to the business record exception to the hear say rule. We conclude that the court did not abuse its discretion in admitting the hospital record of the defendant into evidence. The following additional facts are necessary for our discussion. The state called Peter Jacoby, a physician and the head of the emergency department at St. Mary's Hospital in Waterbury, as a witness. Jacoby, who was not the defendant's treating physician, testified that the physicians and nurses who work in the emergency department are required to maintain records on patients. He testified that information gathered by the emergency room department staff is immediately documented in a patient's record. The prosecutor showed Jacoby portions of the defendant's medical record. Jacoby indicated that the documents in question were kept in the ordinary course of business of the hospital and generated at or about the time that the information contained in the record was obtained. The court, over the defendant's objections, admitted these sections of the defendant's medical record into evidence. We begin our discussion by setting forth the applicable legal principles. "An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." (Internal quotation marks omitted.) State v. Fasano, 88 Conn. App. 17, 39, 868 A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d 15 (2005), cert. denied, 546 U.S. 1101, 126 S. Ct. 1037, 163 L. Ed. 2d 873 (2006); see also Conn. Code Evid. § 8-2. "Section 52-180 sets forth an exception to the evidentiary rule otherwise barring admission of hearsay evidence for business records that satisfy express criteria. . . . Section 52-180 (a) provides that a record of an act, transaction, occurrence or event is admissible as evidence of that act, transaction, occurrence, or event, provided that the record was made in the regular course of business. . . . The rationale for the exception derives from the inherent trustworthiness of records on which businesses rely to conduct their daily affairs. . . . "To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in . § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. . In applying the business records exception, the statute [§ 52-180] should be liberally interpreted." (Citations omitted; internal quotation marks omitted.) State v. Christian, 267 Conn. 710, 757-58, 841 A.2d 1158 (2004). Finally, we are mindful that "[a]ppellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion." (Internal quotation marks omitted.) State v. Kilroy, 61 Conn. App. 164, 169, 763 A.2d 59 (2000). In the present case, we conclude that the portions of the defendant's medical record that were admitted into evidence satisfied the requirements of the business record exception. The defendant's argument that they should have been excluded because Jacoby was not the treating physician is wholly without merit. The plain language of § 52-180 (b) provides: "The writing or record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility." The statute expressly provides that the person making the record is not required to testify. Furthermore, our Supreme Court has rejected a similar claim. "[T]he fact that the . . . sole witness as to the creation of the records . . . personally did not create each entry in the . . . narrative and [did] not have personal knowledge of the particular events recorded in the entry does not impact the admissibility of the records under § 52-180." State v. William C., supra, 267 Conn. 703; see also Calcano v. Calcano, 257 Conn. 230, 241, 777 A.2d 633 (2001) ("This court repeatedly has held that [i]t is not necessary . . . that the witness have been the entrant himself or in the employ of the business when the entry was made. . It is sufficient for a witness to testify that it was the regular business practice to create a document within a reasonable time after the occurrence of the event. This is sufficient to ensure that the document was created at the time when the event was fresh in the author's mind." [Citation omitted; internal quotation marks omitted.]). We conclude, therefore, that the court did not abuse its discretion in admitting portions of the defendant's hospital record into evidence. The judgment is affirmed. In this opinion the other judges concurred. The defendant was committed to the custody of the commissioner of correction for a total effective sentence of fifty-one years incarceration. The defendant also argued that "the prosecutor committed misconduct by failing to disclose in a timely manner six audiotapes of radio transmissions and 911 calls between the fire department, police department, dispatchers and ambulances. That argument has been preserved for review." State v. Bermudez, supra, 79 Conn. App. 282 n.7. We previously did not address the merits of this preserved claim of prosecutorial misconduct because we had reversed the judgment on the basis of the defendant's unpreserved prosecutorial misconduct claims. On remand, we decline to review this claim due to the defendant's failure to brief it adequately. "This court is not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . State v. Colon, 272 Conn. 106, 153 n.19, 864 A.2d 666 (2004)." (Internal quotation marks omitted.) State v. Nixon, 91 Conn. App. 333, 338 n.1, 880 A.2d 199, cert. denied, 276 Conn. 911, 886 A.2d 426 (2005). As our Supreme Court has explained: "[When] the parties cite no law and provide no analysis of their claims, we do not review such claims." (Internal quotation marks omitted.) State v. Cancel, 275 Conn. 1, 3 n.2, 878 A.2d 1103 (2005). Accordingly, we do not review the defendant's preserved claim of prosecutorial misconduct. The court specifically stated: "As far as his initial radio reports, which recorded the time and his impressions, [Meier] acknowledged that every single question that you asked him, 'yes, that's what I said,' and, 'that's what time it was.' So, there is no reason to play the tape for that reason." General Statutes § 52-180 provides in relevant part: "(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. "Ob) The writing or record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility." See also Conn. Code Evid. § 8-4. The defendant also argues that his hospital record was not admissible into evidence due to the failure to comply with General Statutes § 4-104, which provides in relevant part: "Any and all parts of any such [hospital] record or copy, if not otherwise inadmissible, shall be admitted into evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of the record room or the hospital . . . indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record at the time of the transactions . . . . " This statute allows "hospital records containing expert opinions concerning diagnosis to be admitted without the in-court testimony of the treating medical practitioner." Struckman v. Burns, 205 Conn. 542, 550, 534 A.2d 888 (1987). Nevertheless, § 4-104 is not the sole avenue by which medical records may be admitted into evidence. Medical records may be admitted under the business record exception. See, e.g., Calcano v. Calcano, 257 Conn. 230, 240-42, 777 A.2d 633 (2001); Puchalsky v. Rappahahn, 63 Conn. App. 72, 77, 774 A.2d 1029 ("[General Statutes §] 4-104 and 52-180 allow otherwise inadmissible hearsay to be admissible, with certain limitations"), cert. denied, 256 Conn. 931, 776 A.2d 1147 (2001). In the present case, the state provided an in-court witness, Peter Jacoby, to testify and to qualify the defendant's medical record as a business record exception to the rule against hearsay. It was therefore unnecessary for the state to comply with the subpoena requirements of § 4-104.

Opinion McLACHLAN, J. The defendant, Firehouse Associates, LLC, appeals from the trial court's judgment rendered in accordance with a report by an attorney trial referee (referee) in a dispute with the plaintiff, Janet A. living, over a claimed right-of-way. The defendant claims that the court (1) lacked personal jurisdiction over the parties pursuant to General Statutes § 51-183b, (2) improperly concluded that the claimed right-of-way was not extinguished by the provisions of the Marketable Title Act, General Statutes § 47-33b et seq., (3) improperly concluded that the claimed right-of-way was an appurtenant easement rather than a personal easement and (4) improperly concluded that the unity of title doctrine was not applicable under the circumstances of this case. We disagree and affirm the judgment of the trial court. The parties to this action are the owners of adjacent parcels of real estate located in Essex. In June, 2001, a dispute arose as to a right-of-way claimed by the plaintiff over the defendant's land after the defendant erected a masonry retaining wall and parking pad that allegedly altered the contour of the land and interfered with the use of the right-of-way. In a six count amended complaint, the plaintiff alleged that the defendant's property was subject to a right-of-way in favor of her parcel pursuant to two separate deeds (first and second counts), that there existed easements by necessity (fourth count) and implication (fifth count) and that the defendant maliciously obstructed her right-of-way (sixth count). The plaintiff sought a permanent injunction prohibiting the defendant from obstructing her right-of-way and requested damages. The defendant filed an answer with eight special defenses and a two count counterclaim, seeking to quiet title in the first count and claiming tortious interference with the defendant's contractual rights to lease its property in the second count. The court referred the matter to an attorney trial referee, who, after conducting a two day hearing, filed a report and submitted a memorandum of decision on September 30, 2002. In his report, the referee found that the defendant's property was subject to a right-of-way in favor of the plaintiff and that an injunction should be issued requiring the defendant to dismantle the masonry retaining wall. The referee found, however, that the plaintiff was not entitled to damages. Specifically, the referee found in favor of the plaintiff as to the first and second counts of her complaint, and in favor of the defendant as to the fourth, fifth and sixth counts. With respect to the defendant's counterclaim, the referee found that the defendant was entitled to judgment quieting and settling title to the property of the parties as to the right-of-way and found in favor of the plaintiff on the tortious interference claim. The defendant filed preliminary objections to the referee's report. At that time, the defendant also filed a motion for an extension of time to file the transcript of the hearing before the referee and any further objections. The defendant filed additional objections and exceptions to the referee's report after the delivery of the transcript. The plaintiff filed a response, and a hearing was held before the court on July 13, 2004. On November 18, 2004, 128 days later, the court issued its memorandum of decision, overruling the defendant's objections to the acceptance of the referee's report and rendering judgment in accordance with that report. This appeal followed. I The defendant claims that the court lacked personal jurisdiction over the parties to render its judgment in accordance with the referee's report because the court's decision was not issued within 120 days of the completion of the trial in violation of § 51-183b. We address that claim first because it presents a jurisdictional issue. See Levine v. Levine, 88 Conn. App. 795, 798, 871 A.2d 1034 (2005). Section 51-183b provides: "Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section." (Emphasis added.) Here, the case was referred to and tried before an attorney trial referee pursuant to Practice Book § 19-2A et seq. The court did not try the case; the attorney trial referee tried the case. The court held a hearing on the defendant's objections to the report and then rendered judgment. The provisions of § 51-183b do not apply under those circumstances. The procedures that govern matters heard by attorney trial referees are set forth in chapter nineteen of our rules of practice. Upon the consent of the appearing parties or their counsel, a civil nonjury case may be referred to an attorney trial referee by the court. Practice Book § 19-2A. An attorney trial referee must file a report with the clerk of the court "within one hundred and twenty days of the completion of the trial before such referee." (Emphasis added.) Practice Book § 19-4. "When any case shall be referred, no trial will be had by the court unless the reference be revoked upon stipulation of the parties or order of the court. . . ." (Emphasis added.) Practice Book § 19-6 (a). Twenty-one days after the referee's report is mailed to the parties or their counsel, "either party may, without written motion, claim the case for the short calendar for judgment on the report . The court may, on its own motion and with notice thereof, schedule the matter for judgment on the report and/or hearing on any objections thereto, anytime after the expiration of twenty-one days from the mailing of the report to the parties or their counsel by the clerk." (Emphasis added.) Practice Book § 19-16. "The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the committee or attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee or attorney trial referee, as the case may be, for a new trial or revoke the reference and leave the case to be disposed of in court." (Emphasis added.) Practice Book § 19-17 (a). The referee files a report, stating the facts found and the conclusions drawn therefrom, after a trial to the referee. The court holds a hearing, after the case is claimed to the short calendar by either party or after scheduling the matter on its own, to hear objections to the report, if any, and to render judgment on the report or to reject the report and refer the matter for a new trial if the court finds error. Clearly, the hearing before the court was a short calendar proceeding. For this reason, the provisions of Practice Book § 11-19 rather than the provisions of General Statutes § 51-183b apply in determining whether the court's decision was timely issued. Section 11-19 provides: "(a) Any judge of the superior court and any judge trial referee to whom a short calendar matter has been submitted for decision, with or without oral argument, shall issue a decision on such matter not later than 120 days from the date of such submission, unless such time limit is waived by the parties. In the event that the judge or referee conducts a hearing on the matter and/or the parties file briefs concerning it, the date of submission for purposes of this section shall be the date the matter is heard or the date the last brief ordered by the court is filed, whichever occurs later. If a decision is not rendered within this period the matter may be claimed in accordance with subsection (b) for assignment to another judge or referee. "(b) A party seeking to invoke the provisions of this section shall not later than fourteen days after the expiration of the 120 day period file with the clerk a motion for reassignment of the undecided short calendar matter which shall set forth the date of submission of the short calendar matter, the name of the judge or referee to whom it was submitted, that a timely decision on the matter has not been rendered, and whether or not oral argument is requested or testimony is required. The failure of a party to file a timely motion for reassignment shall be deemed a waiver by that party of the 120 day time." The defendant did not file a motion for reassignment at any time after the expiration of the 120 day period. In its reply brief, the defendant argues that even if Practice Book § 11-19 (b) applies, the court's decision was filed eight days after it was due and that that provision of the rules of practice allows fourteen days for the filing of a motion for reassignment. The defendant claims that it had six additional days from the time of the issuance of the decision to file such a motion and that the failure to do so cannot be deemed a waiver under that section. The fact remains that the defendant did not file a motion for reassignment at any time after the due date of the decision, not before or after the issuance of the court's memorandum of decision on November 18, 2004. The failure to do so clearly constitutes a waiver under the plain language of Practice Book § 11-19 (b). Accordingly, the defendant's jurisdictional claim must fail. II The defendant next claims that the court improperly concluded that the plaintiffs right-of-way was not extinguished by the Marketable Title Act (act). See General Statutes § 47-33b et seq. Specifically, the defendant claims that the plaintiffs root of title and the defendant's root of title do not contain references to volume and page numbers in the land records establishing the disputed right-of-way. The failure to reference specific volume and page numbers in those deeds, argues the defendant, extinguished the plaintiffs claimed right-of-way. General Statutes § 47-33c and 47-33e. We disagree. In his report, the referee found that the defendant's parcel is subject to a right-of-way in favor of lot 25A, the plaintiffs property, as referred to in a 1932 deed. That deed contains the language: "The condition being that a right of way shall be left open to the property of Alfred W. Keiss in the rear." The referee found that even though Keiss no longer owned lot 25A at the time of the 1932 conveyance, the right-of-way language nevertheless referred to lot 25A. The referee further found that the defendant's property is subject to a right-of-way referred to in a deed dated 1897, which contains the language: "[T]he condition being that a right of way shall be left open to the property of William P. Gladwin in the rear." The referee concluded that the plaintiff had a record easement over the defendant's property and, therefore, did not have an easement by necessity or by implication. In reviewing a challenge to the report of the referee and the court's acceptance of that report, it is necessary to first note our standard of review. "While the reports of [attorney trial referees] are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact[s] thus found. . . . "A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court . or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. "[W]e note that, because the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the . . . referee." (Citations omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 201-202, 819 A.2d 227 (2003). In interpreting the act, as well as its applicability to the particular facts and circumstances of this case, we exercise plenary review. Johnson v. Sourignamath, 90 Conn. App. 388, 393-94, 877 A.2d 891 (2005). "Pursuant to the act, any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record (which is the root of title under the act) has a marketable record title subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title. . . . The act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land's chain of title." (Internal quotation marks omitted.) Id., 394-95. The plaintiff acquired title to lot 25A by warranty deed recorded on October 1,1995. The legal description indicates that the property is conveyed "[t]ogether with a right of way over land now or formerly of The Essex Fire Engine Company #1, extending from said premises in a westerly direction to Prospect Street, as reserved in a deed from The First Baptist Church to The Town of Essex dated December 3, 1897 and recorded in Volume 9 at Page 350 of the Essex Land Records." The parties agree that the plaintiffs root of title is a 1961 warranty deed, which conveys the subject property "[tjogether with . all such right, title and interest as the grantor has in a certain right of way over land of said The Essex Fire Engine Company No. 1 extending from the premises herein conveyed in a westerly direction to Prospect Street." All of the intermediary deeds, except for the one prior to the transfer to the plaintiff, contain the same or similar right-of-way language as the root of title. The deed to the plaintiffs immediate predecessor in title contains the same right-of-way language as the plaintiffs deed, referencing the volume and page number of the establishment of the easement. Because the plaintiffs root of title fails to reference that volume and page number, the defendant claims that the act extinguishes the plaintiffs claimed right-of-way. The defendant's argument fails for two reasons. First, the act does not require that the root of title contain a specific reference to the establishment of the easement. It is sufficient if any of the deeds within the forty year period contain such a reference in the relevant chain of title or if a notice specifically reciting the claimed interest is recorded in the land records in the affected land's chain of title within that forty year period. "A Marketable Record Title is subject to any interest or defect arising out of any title transaction which has been recorded in the record chain of title of the subject property subsequent to the date of the recording of the root of title; provided however, the recording of such a transaction cannot revive or give validity to any pre-root of title defect or interest which has been extinguished by the provisions of § 47-33e." Connecticut Bar Association, Connecticut Standards of Title (1999), standard 3.9. Second, and more significant, is the fact that the act operates to extinguish interests that burden a servient estate if those interests are not properly preserved in the forty year period. In this case, the defendant's property would be the servient estate, purportedly affected by the interest of the plaintiffs claimed right-of-way. The plaintiffs property, benefited by the deeded easement, would be the dominant estate. "The act declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect . . . ." (Emphasis added; internal quotation marks omitted.) Johnson v. Sourignamath, supra, 90 Conn. App. 395. "The Marketable Record Title Act . . . is comprehensive in its approach to eliminating ancient and stale title claims and defects." Connecticut Bar Association, Connecticut Standards of Title, supra, comment 3.1. The act does not extinguish benefits appurtenant to the dominant estate; it extinguishes burdens appurtenant to the servient estate. See McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006). The defendant also claims that the disputed right-of-way was extinguished by the act because the root of title in the defendant's chain of title did not specifically reference a volume and page number in the land records for the establishment of that easement. The defendant acquired title to its property by warranty deed recorded on October 26, 2000. The parcel is conveyed "together with and subject to such rights, restrictions, easements and covenants as of record may appear." The two deeds prior to that conveyance, warranty deeds recorded on March 19, 1999, contain the same general language as to encumbrances. The next deed in the defendant's chain of title, the root of title, is a warranty deed recorded on August 17, 1932, which contains the language: "The condition being that a right of way shall be left open to the property of Albert W. Keiss in the rear." The 1897 deed referred to in the referee's report is a deed in the defendant's chain of title recorded prior to the 1932 deed. That deed contains the language: "[T]he condition being that a right of way shall be left open to the property of William P. Gladwin in the rear." The defendant's root of title contains the entire description of the easement. There was no need to reference a volume and page number of the land records under those circumstances. The 1897 deed, also containing a reference to the easement, indicated that the defendant's property was subject to a right-of-way that was to be left open to property of Gladwin in the rear. The testimony at trial indicated that the plaintiff s property, lot 25A, is located to the rear of the defendant's property, and that Gladwin was the owner of lot 25A at the time of the 1897 deed. The next deed in the defendant's chain of title, the root of title, is the 1932 deed with the language that the right-of-way was to be left open to the property of Keiss in the rear. The evidence at trial indicated that Keiss took title to lot 25A subsequent to Gladwin. Although he no longer owned lot 25A at the time of the 1932 conveyance, the referee found that the original intent of the parties was to maintain the easement in favor of lot 25A. The court agreed with this finding. We conclude that the facts as found by the referee support the judgment of the court. The court properly overruled the defendant's objections to the acceptance of the referee's report, concluding that the act did not render the easement in favor of plaintiffs lot 25A unenforceable. Ill The defendant claims that the court improperly concluded that the plaintiffs right-of-way, as described in the 1897 and 1932 deeds, was an appurtenant easement rather than apersona! easement. Specifically, the defen dant argues that the absence of the language "heirs, successors and assigns," following the stated condition that the right-of-way was to be left open to the properties of Gladwin or Keiss in the rear, evidenced the intent of the grantor that the easement did not run with the land and was personal to Gladwin and Keiss. "[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary." (Internal quotation marks omitted.) Mulla v. Maguire, 65 Conn. App. 525, 531, 783 A.2d 93, cert. denied, 258 Conn. 934, 785 A.2d 229 (2001). "In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. . In arriving at the intent expressed . in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence." (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 510-11, 757 A.2d 1103 (2000). "Easements are classified as either easements appurtenant or easements in gross. . . . Two distinct estates are involved in an easement appurtenant: the dominant to which the easement belongs and the servient upon which the obligation rests. . An easement appurtenant must be of benefit to the dominant estate but the servient estate need not be adjacent to the dominant estate. . An easement in gross is one which does not benefit the possessor of any tract of land in his use of it as such possessor. . . . An easement in gross belongs to the owner of it independently of his owner ship or possession of any specific land. Therefore, in contrast to an easement appurtenant, its ownership may be described as being personal to the owner of it." (Citations omitted; internal quotation marks omitted.) Id., 512. "The general rule is that an easement may be construed as personal only when the deed language fails to contain the words 'heirs, successors and/or assigns.' " Mandes v. Godiksen, 57 Conn. App. 79, 82 n.6, 747 A.2d 47, cert. denied, 253 Conn. 915, 754 A.2d 164 (2000). The absence of words of inheritance may create a presumption that the easement was intended to be personal, but the force of that presumption is negated if the easement serves to enhance the value of the dominant estate, and it appears from all the surrounding circumstances that the parties intended to create a permanent easement. Dunn Bros., Inc. v. Lesnewsky, 164 Conn. 331, 335, 321 A.2d 453 (1973). "If an easement is in its nature an appropriate and useful adjunct to the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross." Lichteig v. Churinetz, 9 Conn. App. 406, 411, 519 A.2d 99 (1986). In the present case, the property benefited by the easement, plaintiffs lot 25A, is located to the rear of the defendant's property, the property burdened by the easement. Lot 25A is landlocked unless the plaintiff has the claimed right-of-way over the defendant's property. Even though the language in the deed establishing the right-of-way does not contain words of inheritance, the right-of-way provides access to lot 25A and unquestionably enhances the value of that property. The right-of-way, as described in the 1897 and 1932 deeds in the defendant's chain of title, was to be left open to the properties of Gladwin and Keiss. Nothing in the evi dence suggested that the parties intended the easement to be a mere personal right. Under those circumstances, we conclude that the court was correct in determining that the plaintiffs easement is an appurtenant easement that attaches to lot 25A. IV The defendant's final claim is that the disputed easement was never validly created because there was no unity of title between the dominant estate and the servient estate. Although the defendant concedes in its brief that "a legitimate argument can be made that the unity of title doctrine has been abandoned," it argues that the application of Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999) (en banc), is limited to situations involving the creation of easements of necessity. We disagree. Our Supreme Court in Bolán held that "the unity of title doctrine should be abandoned and that the intent of the deed creating an easement should be effectuated even if no unity of title exists between the servient estate and the dominant estate the easement is intended to serve." Id., 144-45. Moreover, in Mandes v. Godiksen, supra, 57 Conn. App. 82 n.6, we noted that Bolán abandoned the unity of title doctrine in cases involving easements in general and held that Bolán was to be applied retroactively. The court correctly concluded that Bolán abolished the unity of title doctrine in its entirety. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff withdrew the third count of adverse possession at trial. By way of special defenses, the defendant claimed that (1) the unity of title doctrine barred the plaintiffs claim of a right-of-way or an easement, (2) General Statutes § 47-37 and the applicable statute of limitations barred the plaintiffs claim of an easement by prescription, (3) the easement, if one existed, was personal to a particular predecessor in title and did not run with the land, (4) the plaintiff or her predecessors in interest abandoned any claim to a right-of-way or an easement, (5) the plaintiffs claimed easement or right-of-way was void and unenforceable because it was ambiguous as to length, width and purpose, (6) any claimed easement or right-of-way was limited to the reasonable uses that could have been made of it at the time it was created, (7) the plaintiffs claim as to an easement by implication or necessity was void and unenforceable because the plaintiff could access her property by other means and (8) the plaintiff was not entitled to attorney's fees or punitive damages because she failed to state a claim on which such relief could be awarded. Because the defendant did not file a motion for reassignment at any time within the period provided by Practice Book § 11-19 (b), we do not reach the issue of whether the issuance of a decision by the court ends a party's time to seek reassignment. The plaintiff claims that this issue was not raised before the referee and, therefore, cannot be considered by this court. Although the defendant's posttrial memorandum of law only briefly mentions the effect of the act on the plaintiffs claimed right-of-way, the issue clearly was before the court and was addressed in its memorandum of decision. Accordingly, we treat the issue as having been preserved at trial. General Statutes § 47-33b provides in relevant part: "(a) 'Marketable record title' means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title, as are stated in section 47-33e . "(e) 'Root of title' means that conveyance or other title transaction in the chain of title of a person, purporting to create or containing language sufficient to transfer the interest claimed by such person, upon which he relies as a basis for the marketability of his title, and which was the most recent to be recorded as of a date forty years prior to the lime when marketability is being determined. The effective date of the root of title is the date on which it is recorded . . . ." General Statutes § 47-33e provides: "Any person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest, subject, only to the matters stated in section 47-33d. A person has such an unbroken chain of title when the land records of the town in which the land is located disclose a conveyance or other title transaction, of record not less than forty years at the time the marketability is to be determined, which conveyance or other title transaction purports to create such interest in land, or which contains language sufficient to transfer the interest, either in (1) the person claiming that interest, or (2) some other person from whom, by one or more conveyances or other title transactions of record, the purported interest has become vested in the person claiming the interest; with nothing appearing of record, in either case, purporting to divest the claimant of the purported interest." General Statutes § 47-33d provides in relevant part: "Such marketable record title is subject to: (1) All interests and defects which are created by or arise out of the muniments of which the chain of record title is formed; provided a general reference in the muniments, or any of them, to easements, use restrictions or other interests created prior to the root of title are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the easement, use restriction or other interest . . . ." General Statutes § 47-33e provides: "Subject to the matters stated in section 47-33d, such marketable record title shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims or charges whatsoever, the existence of which depends upon any act, transaction, event or omission that occurred prior to the effective date of the root of title. All such interests, claims or charges, however denominated, whether legal or equitable, present or future, whether those interests, claims or charges are asserted by a person sui juris or under a disability, whether that person is within or without the state, whether that person is natural or corporate, or is private or governmental, are hereby declared to be null and void." The right-of-way claimed by the plaintiff in the first count of the complaint, referenced in the 1932 deed, is the same right-of-way claimed by the plaintiff in the second count of the complaint, referenced in the 1897 deed. Although Keiss owned other property in 1932, the defendant admitted that a right-of-way over the defendant's property could not possibly reach the property owned by Keiss in 1932. Because Keiss formerly owned lot 25A, it was found that Keiss was mistakenly identified as the property owner at the time of the 1932 conveyance. The deed should have indicated that the right-of-way was to be left open 1o property now or formerly of Keiss.

Per Curiam. The judgment is affirmed.

Opinion HARPER, J. The defendant, Brian Dell, appeals from the judgment of conviction, rendered following a trial to the court, of one count of larceny in the first degree by embezzlement in violation of General Statutes § 53a-122 (a) (2). The defendant claims that the evidence did not support the court's finding that he acted with the mental state required for the commission of the crime. We affirm the judgment of the trial court. The parties agree, and the evidence reflects, that the nonprofit Connecticut Junior Soccer Association (association) promotes the sport of soccer among Connecticut's youth. Players pay registration fees when joining the association and, in return, play on organized soccer teams affiliated with the association. Generally, players receive uniforms, instruction from coaches and the opportunity to participate in officiated local and national tournaments. The statewide association is headed by a president and is comprised of various districts within the state, each of which is headed by a vice president. During the relevant time period, from 1996 through 1999, Paul Duffy was the vice president of the south central district (district). The defendant was the treasurer of the district; his duties included handling the district's finances and maintaining accurate records of the same. These records were reviewed by the association, which had a financial relationship with the district. Each year, the district collected registration fees from players on both its regular and premier teams. The association retained 85 percent of these moneys to pay insurance and other operating costs and returned the remaining 15 percent of these moneys to the district, which had an annual operating budget of approximately $130,000. The district held checking accounts and certificate of deposit accounts. The court's findings of fact may be summarized as follows. At some point during the defendant's tenure as treasurer, several checks drawn on the district's checking accounts were returned due to insufficient funds. Duffy became aware of the problem, and the defendant explained to Duffy that he inadvertently had written the checks on an old account. Financial problems continued to come to Duffy's attention. By using false financial reports that he prepared, the defendant misrepresented the district's finances to Duffy and the association's president; the defendant represented that district accounts were larger than they actually were. The defendant withdrew funds from district accounts, at times by signing Duffy's name on district checks without his knowledge or authorization. The defendant wrongfully appropriated a significant amount of district funds, in the tens of thousands of dollars, to himself. Contrary to the defendant's representations, the defendant did not appropriate these funds to himself with a belief that he was entitled to them, but with an intent to steal. "In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct." (Internal quotation marks omitted.) State v. McCoy, 91 Conn. App. 1, 3, 879 A.2d 534, cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005). General Statutes § 53a-122 (a) provides in relevant part: "A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and . (2) the value of the property or service exceeds ten thousand dollars . . . ." General Statutes § 53a-119 provides in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . (1) [e]mbezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. The defendant does not contest that he appropriated to himself the moneys at issue, which were in his care or custody, or that he appropriated these moneys for his benefit. The issue is whether the state proved beyond a reasonable doubt the essential element of intent. "Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing." State v. Varszegi, 33 Conn. App. 368, 372, 635 A.2d 816 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994). "Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act . . . and without the knowing consent of the owner. . . . The requisite intent for retention is permanency." (Internal quotation marks omitted.) State v. Calonico, 256 Conn. 135, 162, 770 A.2d 454 (2001). The defendant testified that he appropriated the moneys to himself, believing that he was entitled to the moneys as compensation for services that he rendered for the district. Specifically, the defendant testified that he appropriated certain moneys to himself as commission payments from the district, to which he was entitled under an agreement with Duffy, for his negotiation of a sponsorship agreement between a sportswear company and the district. The defendant testified that he appropriated other moneys to himself as compensation for "player profile" books he manufactured for district teams. The defendant testified that he appropriated yet other moneys to himself as reimbursement for legitimate district expenses concerning, for example, uniforms. The defendant testified that, for the most part, Duffy was aware of his activities in this regard and authorized them. The defendant also testified that Duffy authorized him to sign Duffy's name on checks drawn on district accounts and instructed the defendant to conceal the true nature of certain of his withdrawals from district accounts. As the defendant properly argues, if he acted under a claim of right, he did not act with a felonious intent. An accused, acting under even an unfounded or mistaken claim of right, lacks the intent to steal. See State v. Varszegi, supra, 33 Conn. App. 372-73. The defendant's testimony was, of course, subject to the court's careful scrutiny. The court disbelieved the testimony. We must defer to the credibility assessments made by the finder of fact, who had a vantage point far superior to ours from which to assess the testimony. State v. Patterson, 276 Conn. 452, 461, 886 A.2d 777 (2005). The court found that Duffy had not coerced or instructed the defendant to appropriate the moneys to himself or to conceal the true nature of his withdrawals from district accounts. The court found that the defendant engaged in a secret pattern of behavior, appropriating the moneys to himself in such a manner as to conceal the true nature of his activities from others, including Duffy. The defendant signed Duffy's name on checks without his consent, routinely made false notations on checks, manufactured financial records that misrepresented district finances and did not disclose information to other association officials when he was asked to do so. As the court found, the true nature and extent of the defendant's activities came to light only alter police recovered evidence from the defendant's home. The court found that there was no credible evidence of an agreement, either written or oral, pursuant to which the defendant was entitled to commission payments. The court further found that there was no credible evidence that the defendant was entitled to the moneys at issue for any services rendered to the district, including the preparation of player profile books. The court also found that, during the time in which he engaged in this behavior, the defendant was experiencing personal financial problems. All of these findings are supported by the evidence. The court reasoned that the secretive and deceptive nature of the defendant's conduct made it less likely that the defendant acted under a claim of right. Under the facts of this case, such an inference was sound. The findings that the defendant acted in a secretive and deceptive manner, that the defendant appropriated the moneys at issue without authorization to do so, that no credible evidence supported the defendant's claim that he was entitled to the moneys at issue, that no credible evidence supported the defendant's claim that he acted with a good faith belief that he was entitled to the moneys at issue and that the defendant was experiencing financial problems at the time he appropriated the moneys at issue were significant. "[Ijntent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." (Internal quotation marks omitted.) State v. Simmons, 86 Conn. App. 381, 387, 861 A.2d 537 (2004), cert. denied, 273 Conn. 923, 871 A.2d 1033, cert. denied, 546 U.S. 822, 126 S. Ct. 356, 163 L. Ed. 2d 64 (2005). The reasonable inferences to be drawn from these findings and the other evidence amply supported the court's ultimate finding that the defendant appropriated the moneys wrongfully without a subjective belief that he honestly was entitled to do so. As such, the evidence supported the court's finding that the defendant acted with the felonious intent required for conviction. The judgment is affirmed. In this opinion the other judges concurred. The court sentenced the defendant to a term of incarceration of ten years, execution suspended after three years and nine months, and five years of probation. By substitute information, the state also charged the defendant with twenty-eight counts of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1). The court dismissed one of these counts during the trial and, after the court found the defendant guilty of the remaining counts, the court granted the defendant's motion in arrest of judgment with regard to the remainder of the forgery counts. Accordingly, these charges are not at issue in this appeal. The court rendered an oral decision and, in compliance with Practice Book § 64-1, subsequently signed a transcript of its decision. The court briefly drew an analogy between its inference that the defendant's pattern of secretive conduct tended to belie the defendant's claim that he acted in accordance with a claim of right and the requirement in adverse possession cases that subject premises be used by the adverse possessor in an open and notorious manner. See, e.g., Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 779-80, 890 A.2d 645 (2006). The defendant claims that the court's use of an analogy concerning the law of adverse possession reflects that the court applied "a completely irrelevant standard from property law" to this case. Our case law is replete with analogies. When the court drew an analogy on the basis of the law of adverse possession, it necessarily signaled that it was drawing a comparison, not applying the law of adverse possession. It would be unreasonable and illogical to interpret the court's analogy as an indication that it applied inapplicable law to this case. The court set forth the elements of the crime and properly focused its inquiry on the defendant's subjective state of mind, determining whether the defendant had acted in accordance with a good faith belief that he was entitled to the moneys at issue. See State v. Varszegi, supra, 33 Conn. App. 373. We conclude that the court's analysis was proper. The defendant also claims that the court improperly required that conduct reflecting a good faith claim of right occur openly. The court implicitly reasoned that, had the defendant openly appropriated the moneys at issue to himself, in plain view of other association officials, such conduct would have strengthened his testimony that he acted in good faith under a claim of right. It is evident from the court's reasoning that the fact that the defendant had acted in a secretive manner was one of several facts from which the court drew the inference that the defendant had acted with an intent to steal. Given the facts of this case, we do not conclude that the inference drawn by the court, or the court's reliance on this inference, was unreasonable. See State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989) ("trier may rely on its common sense, experience and knowledge of human nature in deciding among conflicting inferences that logically and reasonably flow from the same basic fact"), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990).

Opinion GRUENDEL, J. The petitioner, Mark L. Bova, Sr., appeals, following the granting of his petition for certification to appeal, from the habeas court's judgment dismissing his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove that he was denied the effective assistance of counsel at his criminal trial or that he was prejudiced by the alleged deficiency. We affirm the judgment of the habeas court. The petitioner's claim arises from the conduct of his counsel, John R. Williams, during the testimony of Diane Donofrio, a witness for the prosecution. On November 14, 1994, during direct examination, Donofrio testified about her prior relationship with the petitioner,* her contact with the police about her knowledge of the petitioner's murder of his wife and Donofrio's actual participation in the crime. In connection with her involvement in the crime, Donofrio further testified on direct examination that she was charged with aiding and abetting murder and conspiracy to commit murder. During cross-examination, Williams elicited testimony from Donofrio about the potential length of the sentences that she could receive if convicted of either of the charged offenses. He then elicited testimony from Donofrio that, despite these charges, she was released on a $100,000 nonsurety bond and was able to go home that evening. Testimony for the day concluded shortly thereafter. The following day, November 15, 1994, the court informed counsel for both parties, outside the presence of the jury and Donofrio, that it had received an unsigned note from the jury stating: "What is a non-surety bond? We're confused as to what this means." Thereafter, Williams recommended that the court answer the question, but because the question "sort of suggests that they're deliberating," he also recommended that the court reinstruct the jury not to talk about the case. The prosecutor disagreed, stating that the state did not think the question should be answered because it would encourage deliberation and it was not evidence. The state, however, agreed that the jury should be reinstructed that it should not yet deliberate. Because counsel for both parties did not agree that the court should answer the jury's question, the court declined to do so. After Donofrio and the jury returned to the courtroom, the court informed the jury that it could not add evidence to the case by answering their question. The court then continued to remind the jury that it should not begin deliberating until the end of the trial. Thereafter, Williams continued with cross-examination of Donofrio. Following the conclusion of trial, the petitioner was convicted of the charged offenses and sentenced. On March 9, 1999, the petitioner filed a second amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. Specifically, the petitioner claimed that Williams "failed to adequately protect [the] petitioner's right to an impartial jury" and that he "failed to adequately protect [the] petitioner's trial rights when it became apparent the jury was deliberating before the close of all evidence." The habeas claim was tried to the court on July 21, 2004. At the hearing, neither the petitioner nor the respondent offered any testimony. Instead, the petitioner rested on documents he previously had submitted to the court, including transcripts, pleadings and supplemental legal research. The court dismissed the petition by memorandum of decision on September 1, 2004, and on September 13, 2004, granted the petitioner certification to appeal. "Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary. . . . "In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424-25, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006). "The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances. . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn. App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005). "Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 856, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). The petitioner claims that he should prevail on both prongs of the Strickland analysis. As to the first prong, he argues that Williams' performance was ineffective because he did not request an evidentiary hearing into alleged premature jury deliberations. We conclude that the petitioner has not demonstrated that Williams' per formance was deficient and, therefore, we do not reach the second prong, which is whether his defense was prejudiced by the alleged deficiency. In order to examine Williams' conduct under the circumstances, we begin by examining the law of premature juror deliberations. "It is undisputed that presubmission discussion of the evidence by jurors in any degree is not an acceptable practice and constitutes misconduct." State v. Newsome, 238 Conn. 588, 630, 682 A.2d 972 (1996). "Deliberation in this sense, however, means articulating and exchanging views, albeit preliminary, with one's fellow jurors. . It does not mean the absence of thought, however preliminary. We cannot expect jurors to be totally passive receptors of information who are not permitted even to think about what they have heard. A rule that rests on such a futile requirement . . . would be a rule without foundation in reality. The trial court is expected to prevent premature deliberation, not harness the human mind." (Citation omitted; internal quotation marks omitted.) Spitzer v. Haims & Co., 217 Conn. 532, 545, 587 A.2d 105 (1991). A finding of juror discussion prior to summation, therefore, does not automatically mean that the defendant is entitled to a new trial. See State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). In State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984), our Supreme Court determined that the proper remedy in cases of premature jury deliberation is an evidentiary hearing to determine whether the defendant has been prejudiced by the juror misconduct. "[I]n cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error. . . . Where, however, the trial court was in no way responsible for the juror misconduct [our Supreme Court has] repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct." (Citations omitted; internal quotation marks omitted.) State v. Newsome, supra, 238 Conn. 628. With the relative burdens of proving prejudice from premature jury deliberations in mind, we turn to the petitioner's claim that Williams' performance was deficient because he did not request an evidentiary hearing. "In our review, we strongly presume that counsel's professional assistance was reasonable, and the petitioner has the burden to overcome the presumption that his attorney was employing sound trial strategy. . . . We evaluate the conduct from trial counsel's perspective at the time. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted; internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn. App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). We conclude that the petitioner has failed to meet his burden of showing that Williams' performance was deficient and not reasonable trial strategy. Williams clearly identified a potential problem with premature deliberation. Recognizing the potential, he then took action to remedy it, asking the court to reinstruct the jury on its duty not to engage in premature deliberation. After the court made the requested instruction, Williams continued to cross-examine the witness on the non-surety bond and the favorable treatment she may have received in exchange for her testimony. Williams, therefore, had ample opportunity to elicit evidence from which the jury could have discredited Donofrio's testimony. In the scope of his overall efforts to impeach Donofrio's credibility, Williams reasonably may have made the tactical decision that it was better not to embarrass or to distract the jury during his examination of the witness by forcing an evidentiary hearing. In light of the high burden placed on the petitioner to demonstrate that the jury's question prejudiced his right to a fair trial, such conduct falls within the bounds of reasonable trial strategy. Cf. id., 378 (reasonable trial strategy not to exercise peremptory challenge on jurors from potentially tainted panel where counsel conducted extensive voir dire and determined jurors would be fair and impartial); Bond v. Commissioner of Correction, 87 Conn. App. 50, 56, 863 A.2d 757 (2004) (reasonable trial strategy not to object to jury taking map into jury room before summation where court instructed jury it could look casually at map and previously had instructed jury not to discuss evidence), cert. denied, 273 Conn. 912, 870 A.2d 1079 (2005). The petitioner, therefore, has not overcome the presumption that Wil liams was exercising reasonable professional judgment and cannot meet the first prong of Strickland. The judgment is affirmed. In this opinion the other judges concurred. The petitioner was convicted, following a jury trial, of the murder of his wife in violation of General Statutes § 53a-54a (a), and conspiracy to commit murder in violation of General Statutes § 53a-54 (a) and 53a-48 (a). He was sentenced on February 21; 1995, to a total effective term of sixty years incarceration. The conviction subsequently was upheld on direct appeal in State v. Bova, 240 Conn. 210, 690 A.2d 1370 (1997). On direct appeal, our Supreme Court concluded that the jury reasonably could have found that during the investigation of the murder of the petitioner's wife, the petitioner told the police about an extramarital affair he had engaged in with Donofrio beginning in 1985. State v. Bova, 240 Conn. 210, 215, 690 A.2d 1370 (1997). In May, 1993, the petitioner terminated his relationship with Donofrio and moved in with another woman. Id., 216. Two months later, Donofrio contacted the West Haven police department to report that the petitioner had killed the victim. Id. At that time, she explained that he had "told [her] that he loved her and could not afford a divorce, that he intended to kill the victim by strangulation, and that he would commit the murder on a Tuesday because he did not work on Wednesday." Id. Our Supreme Court further concluded that the jury reasonably could have found that after the petitioner contacted Donofrio, informing her that he was in the process of committing the murder, Donofrio went to the petitioner's home and witnessed him strangling the victim. State v. Bova, 240 Conn. 210, 216, 690 A.2d 1370 (1997). While there, Donofrio took turns with the petitioner suffocating the victim until she had no pulse. Id. Donofrio then drove to a designated point and met with the petitioner, who had disposed of the victim's body. Id., 216-17. Donofrio later disposed of items used in the crime and the victim's pocketbook. Id. The colloquy between the court and counsel was as follows: "The Court: While the jury is out, there's a question. Somebody is — no one is named in the question, but I assume it's a general jury question. It reads, 'What is a nonsurety bond? We're confused as to what this means.' All I can tell them at this point, is [that] they have to deal with what the evidence is unless you people want me to give them some instruction as to what a nonsurely bond is. "[The Petitioner's Counsel]: I think, Your Honor, it would be appropriate to instruct them on what a nonsurety bond is, since they've asked. I also think, however, that the question raises another interesting question, one that was touched upon [in State v. Carter, 34 Conn. App. 58, 91, 640 A.2d 610 (1994), rev'd on other grounds, 232 Conn. 537, 656 A.2d 657 (1995)]. And that is, the question sort of suggests that they're deliberating, and perhaps there should be reinstruction, you know, not to be talking about the case. I think they should — the question should be answered, but I think they should also be told that they should not be deliberating. "[The Prosecutor]: I disagree, Your Honor. I don't think the question should be answered. I think that would encourage deliberation at this point, and it's not evidence. I think the court made the appropriate rulings yesterday, and they should just be instructed that they shouldn't be deliberating at this point and that the question cannot be answered. "The Court: Well, unless there was agreement by the parties that I instruct on it, I'm not going to instruct on it then and [will] tell them they just have to be guided by the evidence that they hear." The court's statement to the jury was: "[Bjefore we proceed with the cross-examination, I did deal with counsel on the question that was raised, and I will read that into the record. There was a note, unsigned. It reads as follows: 'What is a nonsurety bond? We're confused as to what this means.' I have marked that as a court exhibit, and my answer simply is, unfortunately, I cannot add evidence in a case or define terms that this— The evidence is presented here by the lawyers, and I can't get involved in that, and the only other thing I would say, and I don't want to — I'm saying this out of an abundance of caution, and this is, I indicated at the very beginning [that] you're not allowed to begin any kind of deliberations in the matter until the end, and I'm just cautioning you that you can't get — to the extent that you may have been doing that, you kind of can't do that until the end, okay? I'm sorry, that's as far as I can go with that question." The petitioner's habeas claim first came before the court for a hearing on a motion for summary judgment on April 25, 2004; however, the court declined to make a decision at that hearing. A mistrial was declared on July 21, 2004. On April 16, 2004, the petitioner submitted the relevant trial transcript from November 15, 1994, the decision of our Supreme Court on his direct appeal; see State v. Bova, 240 Conn. 210, 690 A.2d 1370 (1997); his entire criminal trial and sentencing transcript, and the sentencing transcript from Donofrio's criminal trial. On April 25, 2002, the petitioner submitted the remarks of the trial judge from Donofrio's sentencing transcript and copies of the decisions of this court, our Supreme Court and the United States Supreme Court in State v. Hobson, 8 Conn. App. 13, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987). On July 24, 2002, the habeas court also noted that it was aware of the briefs and argument made on April 25, 2002, in the hearing on the motion for summary judgment on the habeas claim. See footnote 6. The petitioner rested on those materials as well. The court found that the petitioner had failed to show either that he had received ineffective assistance of counsel or that he had been prejudiced by the alleged deficiency. When the court expressly has instructed the jurors that they may discuss the case among themselves, such error is of constitutional magnitude. State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). "[WJhere . . . there has been no authorization [by the trial court of presubmission discussion of the evidence] a discussion among jurors prior to the trial charge has been held not to be fatal." (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 629-30, 682 A.2d 972 (1996). The petitioner argues that here, as in Castonguay, the burden of proving harmlessness would fall on the state if an evidentiary hearing were held. The petitioner further argues that he suffered prejudice as a result of Williams' failure to request a hearing because the state would be unable to meet its burden of showing harmlessness. Although we need not reach whether the petitioner was prejudiced by his counsel's allegedly deficient performance, we note that the petitioner was not prejudiced in this manner. The court in Castonguay noted that there is a "critical difference" in cases in which the trial court expressly has authorized the deliberations. State v. Castonguay, supra, 194 Conn. 435 n.19. "Where a trial court does not authorize the jury to deliberate prematurely, a finding of error is not automatic. In such circumstances, [t]he test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." (Internal quotation marks omitted.) State v. Hobson, 8 Conn. App. 13, 23, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987). The defendant bears the burden of proving that actual prejudice resulted. State v. Newsome, supra, 238 Conn. 628.

Opinion PELLEGRINO, J. The defendant, Jose A. Irizarry, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), threatening in the second degree in violation of General Statutes § 53a-62 (a) (2) and criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). He claims on appeal that the trial court improperly (1) admitted evidence of four instances of his prior misconduct and (2) restricted his cross-examination of one of the victims regarding that victim's purported theft of the defendant's social security check. We disagree with both of these claims and affirm the judgment of the trial court. The jury reasonably could have found the following facts. In late 2002, the victims, Emma DeJesus, and her boyfriend, Wilson Correa, lived at 15 Prospect Street, apartment nine, in New Britain, and the defendant lived nearby at 59 Walnut Street. Mary Rubino, a testifying witness, lived next door to DeJesus and Correa. The defendant and DeJesus previously were married and had resided together for eighteen to twenty years. Cor rea and Rubino both were well acquainted with the defendant, having known him for years. The outer doorway to 15 Prospect Street was secured, such that a visitor to the building, to gain entry, had to ring a bell for a particular apartment and speak via an intercom with its occupant, who then could admit the visitor. At about 4 p.m. on November 11, 2002, a friend of DeJesus rang the bell, and DeJesus sought to admit her. When DeJesus could not locate her friend in the lobby or hallway area of the building, Correa exited the apartment, and then the building, in search of the friend. As Correa emerged from the building, he was accosted by the defendant, who was hiding behind some mailboxes and appeared to be intoxicated. The defendant possessed a hammer inside of a plastic grocery bag that he had wrapped around his wrist. The defendant struck Correa on the head with the hammer, causing a laceration about an inch long above his eyebrow. Rubino briefly exited her apartment and viewed the defendant and Correa scuffling. Correa escaped and, soon thereafter, reentered the building through a different door. In the meantime, the defendant entered the building and proceeded to apartment nine. Once there, he yelled for DeJesus to open the door, called her a bitch and said he was going to kill her. He also struck the apartment door with the hammer repeatedly, creating holes and breaking two locks. DeJesus pounded on the wall separating her apartment from Rubino's and shouted to Rubino to call the police. Rubino did so, then exited her apartment to encounter the defendant banging on her neighbors' door with what appeared to her to be a hammer. She advised the defendant to leave because the police were coming. The defendant replied that he did not care and that he was not there, and then left. Correa returned to apartment nine, and New Britain police officers Brian Murphy and Robert Paciotti arrived. Correa, who was bleeding profusely, was taken by ambulance to a hospital where he received several stitches. When interviewed by Murphy, he identified the defendant as his assailant. Dejesus and Rubino also identified the defendant as the person who had damaged the door to apartment nine. Murphy observed the damage to the door and its locks. On the basis of the information given to them by Correa, DeJesus and Rubino, Murphy and Paciotti went to the defendant's apartment at about 6 p.m. on the day of the incident. The defendant voluntarily allowed the officers to enter. He denied being at 15 Prospect Street that day, but when the officers asked him whether he had a hammer, he pointed to one lying in the open nearby. The hammer was seized, and the defendant was arrested and taken to the police station. The defendant was charged in a second amended long form information with assault in the second degree, threatening in the second degree and criminal mischief in the third degree. After a jury trial conducted on several days in February, 2004, the defendant was convicted of all of those offenses and received a total effective sentence of eleven years imprisonment. The court also imposed permanent criminal restraining orders requiring the defendant to refrain from contact with DeJesus and Correa. This appeal followed. I The defendant claims first that the court improperly admitted evidence of four instances of his prior misconduct. We disagree. The following additional facts and procedural history are relevant. Prior to the start of trial, the state filed a motion seeking to present evidence of certain instances of the defendant's prior misconduct pursuant to § 4.5 of the Connecticut Code of Evidence.* The state argued, inter alia, that the evidence was probative of the defendant's intent in the present case and was necessary to prove an element of the crime of threatening. The court deferred rating on the state's motion until midtrial, at which time the state, outside the presence of the juiy, made offers of proof as to the incidents in question. The prior instances of misconduct, the first two of which the state sought to offer through the testimony of DeJesus and the second two through the testimony of Rubino, were as follows. (1) In 1987, the defendant attacked DeJesus with a machete, cutting her wrist, and attempted to attack her son. (2) About two weeks prior to the hammer incident, the defendant came to the victims' apartment, and DeJesus' grandson answered the door. When the defendant saw Correa there sleeping, he rolled up his sleeves as if preparing to hit DeJesus, then said that he would not break her face because her grandson was there. The grandson pushed the defendant, who was drunk, out of the apartment. (3) Within one year of the hammer incident, the defendant came to the victims' apartment and banged on the door at about 3 or 4 a.m. He was holding a knife by its handle with the blade of the knife concealed up his shirtsleeve. (4) Also within one year of the hammer incident, the defendant came to the victim's apartment and banged on the door at between 2 and 4 a.m. He had a knife stuck down the back of his pants with the handle visibly protruding from the waistband. After hearing the offers of proof, the court concluded that the misconduct evidence was probative as to the issue of the defendant's intent in regard to the charge of threatening and that at least some of that evidence was not overly prejudicial. As to the 1987 incident, the court ruled that DeJesus could testify as to the attack on herself but not the attempted attack on her son. It allowed farther that DeJesus could show the jury the resulting scar on her wrist. The court ordered, however, that in discussing the incident, the word "machete" could not be used but rather would be replaced with the word "instrument." The court allowed DeJesus to testily about the incident with her grandson but limited her testimony to the basic facts. It also permitted Rubino to testify about the two incidents in which the defendant, possessing knives, was banging on the victims' door in the early hours of the morning. The witnesses proceeded to testify before the jury, as contemplated during the offers of proof, but restricted by the court's orders. Following DeJesus' testimony regarding the first two incidents of misconduct, the court gave a brief limiting instruction to the jurors, cautioning them to consider the evidence only for purposes of establishing the defendant's intent and not to show his bad character. Following Rubino's testimony regarding the second two incidents of misconduct, the court gave a similar- limiting instruction. In its final charge to the jury, the court gave a more extensive instruction as to the proper use of the misconduct evidence. The defendant now argues that the court improperly admitted evidence of the foregoing incidents of his misconduct because that evidence was not relevant to the question of his intent to terrorize the victim. He claims further that the "intent to terrorize" element of the threatening count was not at issue. According to the defendant, the misconduct evidence was more prejudicial than probative and, as a result of its admission, his "fundamental constitutional rights and . . . rights to a fair trial were violated." We are not convinced. "As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which [he] is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Exceptions to the general rule exist, however, if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . We have devel oped a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . . "The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Smith, 88 Conn. App. 275, 285-86, 869 A.2d 258, cert. denied, 273 Conn. 940, 875 A.2d 45 (2005). To prove that the defendant was guilty of the crime of threatening in the second degree, the state was required to establish, beyond a reasonable doubt, that the defendant "threaten [ed] to commit any crime of violence with the intent to terrorize another person . . . ." General Statutes § 53a-62 (a) (2). We previously have defined "terrorize," as used in § 53a-62 (a) (2), as meaning "to scare or to cause intense fear or apprehension." State v. Crudup, 81 Conn. App. 248, 261, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). The state, therefore, needed to show that the defendant, while pounding on the door to apartment nine, threatened to kill DeJesus with the intent to scare her or to cause her to experience intense fear or apprehension. We address at the outset the defendant's claim, repeated throughout his ar gument as to this issue, that he did not contest meaningfully the element of intent in regard to the charge of threatening and, therefore, the misconduct evidence was unnecessary to prove that element. Regardless of the accuracy of that assertion, we note that "[ijntent, or any other essential element of a crime, is always at issue unless directly and explicitly admitted before the trier of fact." (Emphasis added.) State v. Baldwin, 224 Conn. 347, 356, 618 A.2d 513 (1993); see also Estelle v. McGuire, 502 U.S. 62, 69-70, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (noting that "prosecution's burden to prove every element of [a] crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense" and holding that extrinsic act evidence is not constitutionally inadmissible merely because it relates to issue that defendant does not actively contest). There was no such admission in this case. In any event, our review of the record demonstrates that the defendant, contrary to his claim here, explicitly contested whether he intended to terrorize DeJesus via his actions on November 11, 2002. In particular, as is evident from both his argument for acquittal and his closing argument to the jury, defense counsel attempted to downplay the seriousness of the defendant's conduct at the door to the victims' apartment and to characterize his intent as merely to irritate or to annoy DeJesus. The defendant's claim that his prior acts of misconduct were not relevant to his intent to terrorize DeJesus on November 11, 2002, is similarly unconvincing. "Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon." (Internal quotation marks omitted.) State v. DeJesus, 91 Conn. App. 47, 56-57, 880 A.2d 910 (2005); see also 3 Jones on Evidence (1998) § 17:60, p. 481 ("[ejxtrinsic act evidence is often a useful source of circumstantial evidence of what a person's mental state was on the occasion in question"). Evidence is relevant if it "has a logical tendency to aid the trier in the determination of an issue. . All that is required is that the evidence tend to support a relevant fact even to a slight degree . . . ." (Internal quotation marks omitted.) State v. Erhardt, 90 Conn. App. 853, 861, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005). When instances of a criminal defendant's prior misconduct involve the same victim as the crimes for which the defendant presently is being tried, those acts are especially illuminative of the defendant's motivation and attitude toward that victim, and, thus, of his intent as to the incident in question. See, e.g., id., 860-61 (prior-incidents of defendant's physical violence toward victim tended to indicate he meant to cause her physical injury in charged crime). Although we are unable to locate a Connecticut case directly on point, we find guidance in a decision of the Supreme Court of Illinois rejecting a sufficiency of the evidence challenge and upholding a defendant's conviction pursuant to an antistalking statute. See People v. Bailey, 167 Ill. 2d 210, 657 N.E.2d 953 (1995), overruled on other grounds by People v. Sharpe, 216 Ill. 2d 481, 519-20, 839 N.E.2d 492 (2005). That statute, similar to the threatening provision at issue here, required the state to prove that the defendant had threatened the victim "with the intent to place [her] in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint." People v. Bailey, supra, 243. The defendant was charged in connection with his statements to the victim, who was his former girlfriend, that she should kiss her children goodbye, that he was going to "blow [her] away" and that she would not "make it to [her next] birthday." (Internal quotation marks omitted.) Id., 219-20. The defendant denied intending to place the victim in apprehension of bodily harm, and he testified, in essence, that he and the victim, at the time of the events in question, had an ongoing relationship. Id., 220-21. At trial, the state was permitted to introduce evidence of several prior instances of the defendant's aggressive and threatening conduct toward the victim. On appeal, the Supreme Court of Illinois concluded that on the basis of this evidence, the trial judge properly found that when the defendant made the foregoing statements to the victim, "he possessed the requisite intent to place her in reasonable apprehension of bodily harm." Id., 245. In so holding, the court necessarily concluded that the defendant's previous aggressive and threatening actions toward the victim were relevant to the issue of his intent to frighten her by making the statements in question. We conclude likewise in the present matter that the defendant's violent and threatening behavior toward DeJesus in the past was relevant to show his intent to cause her intense fear or apprehension on November 11, 2002, when he pounded on her door with a hammer and stated that he would kill her. Given that the defendant previously had threatened DeJesus and, on at least one occasion, actually had caused her injuiy, the evidence of his past behavior had a tendency to show that by his actions on November 11, 2002, he did not intend merely to annoy or to irritate her, but rather, to cause her intense fear or apprehension. Accordingly, the court properly admitted testimony as to the previous incidents pursuant to the first part of the test for admissibility of prior misconduct evidence. See State v. Smith, supra, 88 Conn. App. 285. As to the second part of that test, the defendant urges us to conclude that the evidence nevertheless was overly prejudicial due to its extent and character. We acknowledge that "[a]ll adverse evidence is damaging to one's case, but [nevertheless, that evidence] is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Internal quotation marks omitted.) State v. Ali, 92 Conn. App. 427, 434, 886 A.2d 449 (2005), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006). Given the facts of this case and the nature of the evidence, we consider that standard to be unsatisfied. Admission of multiple instances of prior misconduct is not per se improper; see, e.g., State v. Hoskie, 74 Conn. App. 663, 667-70, 813 A.2d 136 (upholding admission of evidence of four instances of misconduct), cert. denied, 263 Conn. 904, 819 A.2d 837 (2003); and, furthermore, the misconduct evidence in this case was no more shocking than the evidence of the crimes with which the defendant was charged. We observe in conclusion that the court, outside the presence of the jury, carefully considered the proffered misconduct evidence and the parties' arguments as to its admissibility before determining that it was more probative than prejudicial. The court in fact disallowed other misconduct evidence the state sought to introduce; see footnote 14; and ordered the admitted testimony to be stated concisely and phrased in noninflammatory terminology. Furthermore, although it was not required to do so, the court minimized any potential prejudice by repeatedly giving limiting instructions as to the use of the evidence. The care with which the court weighed the misconduct evidence and devised measures for reducing its prejudicial effect militates against a finding of abuse of discretion. See State v. Erhardt, supra, 90 Conn. App. 862. On the basis of the foregoing analysis, we conclude that the court acted within its discretion when admitting the challenged evidence. II The defendant also claims that the court improperly restricted his cross-examination of DeJesus in regard to her alleged theft of his social security check. We disagree. The following additional facts and procedural history are pertinent to the claim. Prior to the start of trial, the state filed a motion in limine via which it sought to preclude the defendant from questioning DeJesus regarding a police report dated February 26, 2003. See Practice Book § 15-3. The report was prepared by the investigating officer, Frank Surowiec, in response to a complaint from the defendant's landlord, Frank Maccarone, regarding an alleged larceny. According to the report, Maccarone told Surowiec that the defendant had authorized him to receive the defendant's mail when he was incarcerated following the hammer incident. He indicated that he had not received the defendant's February, 2003 social security check and that he believed DeJesus had it, although she said she did not. Maccarone also told Surowiec that he had spoken with another individual named Esperanza Tirado, who told Maccarone that DeJesus had asked her to cash the check. Maccarone additionally reported speaking with the local mail carrier, Michael Kristopik, who said he had left the defendant's mail, including the check, at DeJesus' mailbox. The report indicates that Surowiec then interviewed Kristopik, who confirmed leaving the check "at [DeJesus'] mailbox." Kristopik said DeJesus had told him that Maccarone was not getting the defendant's mail to him and that she was authorized to receive that mail. Kristopik reported that he believed DeJesus, knowing that she and the defendant had had a long-term relationship. He told Surowiec that once he learned that there was a problem with the defendant's mail, he ceased delivering it to anyone until he received written authorization from the defendant. Surowiec concluded his report by noting that he had attempted to contact DeJesus, Tirado and Rubino but was unsuccessful. In its motion in limine, the state argued that the report was based entirely on hearsay, that it never resulted in any arrests and that the case had been closed. It further characterized the issue of the missing check as collateral to the present matter. The court deferred ruling on the motion until trial, and, during the cross-examination of DeJesus, the jury was excused, the defendant made an offer of proof and the parties presented argument. The court found that the police report provided a sufficient good faith basis for at least some inquiry, in particular "because of the independent recollection of a mail carrier." The court considered DeJesus' acceptance of the defendant's mail to be inconsistent with her earlier characterization of their relationship as over and, thus, relevant as to her credibility. It concluded, however, that on the basis of the police report alone, any claim that DeJesus had stolen the defendant's social security check was too speculative and, in any event, collateral. Ultimately, the court allowed the defendant to ask DeJesus only whether she told Kristopik that he could leave the defendant's mail, including the February check, with her and whether the defendant authorized her to cash that check. It disallowed any questioning pertaining to the purported theft of the check or other peripheral matters. DeJesus was recalled to the witness stand and answered the permitted questions in the negative. Thereafter, following an offer of proof, the defendant called Kristopik to testify for the purpose of impeaching DeJesus. The court limited questioning of Kristopik to queries essentially mirroring those posed to DeJesus, i.e., whether she had told him he could leave the defendant's mail with her and whether he left the mail, including the check, with her. Kristopik answered those questions in the affirmative. The court also allowed defense counsel to inquire about what knowledge, if any, Kristopik had of the relationship between the defendant and DeJesus. Kristopik stated that the two used to be married and that he used to see DeJesus near the defendant's apartment. During the offer of proof as to Kristopik, defense counsel had expressed concern about whether the state, on cross-examination of the witness, would cause Kristopik to appear biased against DeJesus due to a mild reprimand that he apparently had received from his supervisor for delivering the defendant's mail to her. The court, therefore, allowed defense counsel to attempt to lessen the effect of any potential impeachment by addressing that subject first on direct examination. Accordingly, defense counsel asked Kristopik whether, as a result of his delivery of the defendant's mail to DeJesus, "there [were] any ramifications to [Kristopik] professionally?" Kristopik replied, "I was warned. I was given a warning, actually, because I was a little concerned, and I went to my supervisor, my postmaster, actually, explained what had happened, and he told me that I should always play it by the book." At the close of her cross-examination of Kristopik, the prosecutor briefly revisited the matter of his reprimand. The following colloquy ensued: "[The Prosecutor]: Okay. Now, you were asked some questions that you had some problems, minor problems, at work about this. "[The Witness]: Well, I was concerned after things developed, and I sought out my postmaster and asked his opinion and told him what was going on and — -just in case something came back to him, I wanted him to hear from me first— "[The Prosecutor]: Okay. "[The Witness]: — what had happened. "[The Prosecutor]: All right. And he gave you a warning? "[The Witness]: Well, he said, you know, never do it, always play it by the book. It's not your responsibility to get involved, you know, with them, you know— look — in other words, bottom line, look — take care of yourself, look out for yourself first. "[The Prosecutor]: All right. So, I take it as a result of all of that, though, you probably weren't too happy with Emma. Is that fair to say? "[The Witness]: Yeah, at the time. Yeah, I was disappointed. I felt misled." At that point, defense counsel asked that the jury be excused and proceeded to argue, in essence, that through the foregoing exchange, the state had raised the issue of the missing check and, therefore, he should be allowed to explore that topic. The court disagreed, opining that the only inference raised by the state's questioning was that "the United States Postal Service probably requires postal carriers only to deliver to the named person at the named address unless it's in writing from that person to go forward it somewhere else." The defendant now claims that the court improperly prohibited him from further cross-examining DeJesus concerning her involvement with the missing check, specifically, from asking her whether she had stolen it or had asked Tirado to cash it for her. He claims that those questions were proper to demonstrate DeJesus' bias or interest in testifying falsely, i.e., to show that DeJesus had a financial incentive to keep the defendant in jail because she could collect and cash his social security checks or that she was vengeful toward him "for causing a police complaint against her." The defendant argues further that the sought testimony was misconduct evidence admissible to undermine DeJesus' veracity in general. Alternatively, he argues that the state, during its cross-examination of Kristopik, opened the door to the admission of evidence regarding the missing check. According to the defendant, the court's rulings violated his constitutional rights to cross-examination and confrontation. We are not persuaded. The law governing this claim is well settled. "It is axiomatic that [a criminal] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness' motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . "The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . "The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion. . . . "The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence . is irrelevant. . . . This may be accomplished in one of three ways. "First, the defendant can make an offer of proof. . . . Second, the record independently can be adequate to establish the relevance of the proffered testimony. . . . Finally, the defendant can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his inquiry. A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required. . . . A cross-examiner may inquire into the motivation of a witness if he or she has a good faith belief that a factual predicate for the question exists." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 745-48, 657 A.2d 611 (1995). We conclude that the defendant failed to establish, by any of these methods, the relevance of the claimed testimony. In short, the line of questioning he sought to pursue was based on wholly speculative information lacking the necessary indicia of reliability. To begin, although the defendant made an offer of proof in the form of the police report, that report did not constitute reliable evidence that DeJesus had stolen the defendant's February, 2003 social security check. The only indication of the theft or attempted theft of the check apparent from the report was in the form of a double hearsay statement uttered by one nontestifying individual to another and recorded by a nontestifying police officer, namely, Maccarone's statement to Surowiec regarding what Tirado purportedly had told Maccarone. Although Tirado apparently was present in the courtroom for at least some portion of the trial, defense counsel did not call her to testify as part of his offer of proof, nor was there any indication that he attempted, e.g., to learn more from Surowiec or Maccarone, to question DeJesus himself or to contact the Social Security Administration to determine the status of the check in question. Neither did he offer any other independent evidence showing that DeJesus had possessed the check that was left "at [her] mailbox" or that anyone had attempted, successfully or not, to cash that check. Finally, defense counsel never stated to the court that he had a good faith belief that DeJesus had stolen the defendant's check. Insofar as there was no reliable evidence that DeJesus had stolen the check in question or, in any event, that she had the ability to cash checks payable to the defendant or that she still was receiving them, it necessarily follows that defense counsel lacked the proper foundation for questioning her about any financial incentives for her testimony. Moreover, because there was no evidence presented that DeJesus was even aware of the police report, the defendant's suggestion that she was angry with him due to Maccarone's complaint is entirely without basis. We conclude that the defendant, like the defendant in Barnes, "attempted to use cross-examination as a tool to investigate purely speculative sources of witness bias, rather than as a tool to discredit testimony on the basis of a preexisting good faith belief that bias existed. [I]t is entirely proper for a court to deny a request to present certain testimony that will further nothing more than a fishing expedition . or result in a wild goose chase." (Citation omitted; internal quotation marks omitted.) State v. Barnes, supra, 232 Conn. 749-50. Consequently, the court did not abuse its discretion in disallowing the proposed testimony for purposes of showing DeJesus' bias or interest in testifying falsely. For similar reasons, the defendant's argument that the testimony should have been permitted as misconduct evidence, bearing on DeJesus' general veracity, also must fail. It is true that counsel has the right to cross-examine a witness concerning specific acts of that witness' misconduct "if those acts bear a special significance upon the [issue] of veracity," and, further, "that larcenous acts tend to show a lack of veracity." (Internal quotation marks omitted.) State v. Manns, 91 Conn. App. 827, 838, 882 A.2d 703, cert. denied, 276 Conn. 927, 889 A.2d 818 (2005); see also Conn. Code Evid. § 6-6 (b). Like questioning designed to expose a witness' bias or interest in testifying falsely, however, questioning regarding witness misconduct bearing on veracity, to be pursued properly, must have some good faith basis. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.32.4, p. 463 ("[b]efore a witness maybe asked about his or her prior acts of misconduct, the questioner must have a good-faith basis for believing that the witness has committed the act inquired about"); see, e.g., State v. Colon, 272 Conn. 106, 206-209, 864 A.2d 666 (2004) (holding that court did not abuse discretion in concluding that anonymous letter to newspaper editor did not establish good faith basis for cross-examining witness regarding his alleged prior misconduct), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005) . Here, for the reasons already explained, the proper foundation was lacking. Finally, we disagree with the defendant's claim that the state, through its cross-examination of Kristopik, raised the issue of the missing or stolen check such that inquiiy into that subject by defense counsel became warranted. "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence." (Internal quotation marks omitted.) State v. Powell, 93 Conn. App. 592, 599, 889 A.2d 885, cert. denied, 277 Conn. 924, 895 A.2d 797 (2006); see also C. Tait, supra, § 1.32.3, p. 94 (door may be opened on either direct or cross-examination). Here, when cross-examining Kristopik, the prosecutor did nothing more than revisit the same subject that defense counsel already had addressed, i.e., whether the mail earner had been reprimanded for delivering the defendant's mail to DeJesus absent the proper authorization. The answers given on direct and cross-examination were highly similar. The prosecutor's questions did no more to imply that Kristopik had been reprimanded because of a stolen check than did defense counsel's previous inquiry, and, therefore, did not open the door to exploration of that subject. In sum, the court did not abuse its discretion in disallowing questioning about the defendant's allegedly stolen February, 2003 social security check. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-60 (a) provides in relevant part: "A person is guilty of assault in the second degree when . (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . ." General Statutes § 53a-62 (a) provides in relevant part: "A person is guilty of threatening in the second degree when . (2) such person threatens to commit any crime of violence with the intent to terrorize another person General Statutes § 53a-117 (a) provides in relevant part: "A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another . . . ." Correa testified that he had known the defendant for fourteen years. Rubino testified that she had known the defendant for seven or eight years. The police report of the incident underlying the defendant's conviction indicates that Correa went outside to retrieve his wallet. This discrepancy is not material to the jury's findings. The victims' and Rubino's apartments are on the first floor of 15 Prospect Street and are separated from the building's lobby by an unsecured door with a window in it. Rubino could see the claw of the hammer protruding from the plastic bag around the defendant's wrist. Initially, the defendant did not respond to the officers' knocks on his door, but answered when the officers returned shortly thereafter, accompanied by the defendant's landlord. The defendant also was charged in a separate, part B information with being apersistentserious felony offender pursuant to General Statutes § 53a-40 (c). That charge was based on the defendant's prior conviction of attempt to commit assault in the first degree in violation of General Statutes § 53a- 49 and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The defendant waived his right to a jury trial as to part B of the information and, on March 9, 2004, the court found him to be a persistent serious felony offender. The defendant filed a motion for a new trial; see Practice Book § 42-53; which the court denied. Connecticut Code of Evidence § 4-5 (a) provides that "[ejvidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person." Section 4-5 (b) allows, however, that such evidence is admissible for other purposes, "such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony." Conn. Code Evid. § 4-5 (b). Although the defendant was convicted of assault in the second degree and attempt to commit assault in the first degree in connection with this incident and served a term of imprisonment; see footnote 9; the state sought to present evidence only as to the event itself, and not as to the defendant's conviction and resulting incarceration. During the state's offer of proof as to the third and fourth incidents, Rubino testified that she had seen the defendant in the hallway outside of the victims' apartment "[o]ver twenty times" and that "[h]e always had a steak knife in his pocket; that was everyday . . . ." The state, however, did not seek to introduce this testimony. The court disallowed entirely, as too remote in time, other evidence the state sought to introduce. That evidence pertained to an incident in Puerto Rico in which the defendant purportedly chased DeJesus in a drunken rage, causing her to fall or jump down a stairwell and to suffer a broken leg. It also precluded, as not sufficiently relevant, evidence of further instances of the defendant loitering around 15 Prospect Street late at night, ringing the victims' doorbell or banging loudly on their door. The court instructed the jury as follows: "Now, you will recall [that] during the trial, I ruled [that] some testimony, as well as some evidence, has been allowed for a limited purpose only. Any testimony or evidence which I identified as being for a limited purpose will be considered by you only as it relates to the limits l'or which it was allowed, and you shall not consider such testimony and evidence in finding any other facts as to any other issue. "Now, there was evidence offered by the state of prior acts of misconduct by the defendant. This is not being admitted to prove the bad character of the defendant or the defendant's tendency to commit criminal acts. Evidence of prior misconduct is being admitted only to show or establish the existence of the intent to commit a crime charged, which is a necessary element. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate criminal propensity. You may consider such evidence if you believe it and, further, if you fmd that it logically, rationally and conclusively supports the issues for which it is being offered by the state. But as I've indicated here, it bears on the issue of intent, and it will be defined under the intent to terrorize in the second count of the information. "On the other hand, if you do not believe such evidence or, even if you do, if you find that it doesn't logically, rationally and conclusively support the issue for which it's being offered, namely, the intent, then you may not consider the testimony of prior misconduct for any reason. For this reason, consider the evidence only on the issue of intent and for no other purpose." The defendant cites to the fourteenth amendment to the United States Constitution and article first, § 8 and 9, of the constitution of Connecticut, but does not provide any substantive constitutional analysis, either state or federal, in support of this claim. We are not persuaded that the defendant's constitutional rights are implicated. "[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature." (Internal quotation marks omitted.) State v. Izzo, 82 Conn. App. 285, 291 n.2, 843 A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). Accordingly, we review the defendant's claim under the ordinary principles governing issues of claimed evidentiary error. In arguing for acquittal, defense counsel, in addressing the threatening count, urged that given the ongoing relationship between the defendant and DeJesus, it was not plausible that he intended to terrorize her or to instill in her a sense of fear. He argued further that the defendant's actions on November 11, 2002, were not intended to cause "a state of intense fright, apprehension or stark fear on [DeJesus'] part," but instead, "probably some extreme irritation and annoyance" or "noise and alarm." In his closing argument to the jury, defense counsel explained that terror involved "intense fright or apprehension, stark fear," and again claimed that as a result of the defendant's actions, DeJesus merely "may have been annoyed. She may have been pissed off at him . . . but that's not the same thing as what has been defined as terrorize through the statute." The case of State v. Hoskie, 74 Conn. App. 663, 813 A.2d 136, cert. denied, 263 Conn. 904, 819 A.2d 837 (2003), has significant parallels to the present matter, but the claim on appeal differed from the issue here. In Hoskie, the defendant was convicted of the crime of kidnapping in the first degree, an element of which is abduction and restraint of another person "with intent to . . . terrorize [that person] . . . ." General Statutes § 53a-92 (a) (2) (C). The trial court had allowed the state to introduce evidence that the defendant engaged in threatening behavior toward the victim on several occasions prior to the incident in question for the purpose of proving that he intended to terrorize her. State v. Hoskie, supra, 666-67. Although the relevance of the admitted evidence was not contested on appeal, we upheld its admission against a challenge that it was overly prejudicial. Id., 668-70. The victim was permitted to testify about incidents in which the defendant: (1) restrained her in his apartment, spit on her and called her names; (2) followed her in her car, driving aggressively, and, once she stopped to call police, pounded on her window and called her names; (3) encountered her in a parking lot and caused damage to her car while calling her names; and (4) telephoned her, threatening to "come over with a gun" and harm her and her children. (Internal quotation marks omitted.) People v. Bailey, supra, 167 Ill. 2d 244-45. In regard to the defendant's assertion that the misconduct evidence could be relevant only to the question of his intent to cause physical injuiy, and not to his intent to terrorize, we note simply that those two intentions are not necessarily mutually exclusive. See State v. Niemeyer, 258 Conn. 510, 526, 782 A.2d 658 (2001). The defendant, in the course of his argument as to this claim, also attempts to argue that one of the court's three limiting instructions was misleading and likely confused the jury. It is well established, however, that "a claim that a court failed to instruct a jury properly with regard to evidence admitted for a limited purpose is distinct from a claim related to the admissibility of such evidence." State v. Orellana, 89 Conn. App. 71, 96 n.9, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). Although the defendant properly preserved his claim of error as to the admissibility of the misconduct evidence, he did not raise any objection to the instruction that he now challenges on appeal. Even were we to accept the defendant's cursory citation of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as adequate to justify our review of this unpreserved claim, the claim necessarily would fail under the second prong of Golding because the alleged "failure [of a court] to give an adequate limiting instruction . is not of constitutional magnitude." (Internal quotation marks omitted.) State v. DeJesus, supra, 91 Conn. App. 67. The defendant did not seek to have the police report introduced into evidence, and it was not marked for identification at trial. It is, however, part of the record on appeal by virtue of the defendant's successful motion for rectification, by which he requested that the report be made an exhibit for identification purposes only. See Practice Book § 66-5. According to Kristopik, Rubino was present when he spoke with DeJesus about the defendant's mail. There were indications that Maccarone and Tirado, in contrast, were friends of the defendant. Neither of those individuals testified at trial. Specifically, the court precluded questions regarding Rubino's presence when DeJesus spoke with Kristopik, whether DeJesus told Kristopik that the defendant was not receiving his mail and checks, DeJesus' relation to Tirado and whether DeJesus had asked Tirado to cash the February check. The court disallowed more detailed questioning as to what, specifically, DeJesus had told Kristopik about why he should leave the defendant's mail with her. Although the report was not marked for identification purposes only until the granting of the defendant's posttrial motion for rectification, it is clear from the trial transcript that the court had a copy of the report and relied on it in ruling on the admissibility of the proffered testimony.

Opinion BISHOP, J. The defendant, Roy D., appeals from the judgments of the trial court revoking his probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court imposed an unauthorized condition of probation and (2) he did not have notice that failure to admit to his offenses while undergoing sex offender treatment could lead to the revocation of his probation. We affirm the judgments of the trial court. The following facts are relevant to our consideration of the defendant's appeal. On October 11, 2001, the defendant pleaded guilty under the Alford doctrine to two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant was sentenced, pursuant to the plea agreement, to ten years imprisonment, execution suspended after three years, followed by five years of probation with terms and conditions to be set forth by the court. As one of the special conditions of probation, the defendant was ordered to "be evaluated for and, if recommended by the evaluator and probation, enrolled in and to successfully complete a sex offender treatment program." The court also ordered that "adult probation is authorized to impose any additional conditions of probation deemed necessary for the protection of the public and the rehabilitation of the offender." The defendant was released from prison on March 7, 2003, and probation supervision commenced on that date. Prior to his release from prison, a probation officer explained to the defendant, and the defendant signed a copy of, the conditions of his probation, which included the condition of sex offender treatment. Subsequent to his release, the defendant met with another probation officer, who again explained the conditions of his probation, and the defendant signed a copy of the same conditions. On May 6, 2003, the agency that was under contract with the office of adult probation to provide the defendant's therapy indicated that he would be required to admit his misconduct in order to complete sex offender treatment successfully. The defendant was advised by the program leader that failure to admit his crimes during therapy would result in unsatisfactory sex offender treatment, discharge from the program and the initiation of probation violation proceedings. The defendant signed a treatment contract acknowledging that violating any of the conditions of the contract would result in unsuccessful treatment and discharge from the program. The defendant also signed a copy of his treatment goals and discharge criteria, which stated that his first treatment goal was "admitting to your offense." He was advised that at the end of six months, his continued denial would result in his discharge from the program and probation revocation proceedings. The defendant was also told by his probation officer that his probation would be violated if he failed to complete the treatment program successfully. The defendant was offered the opportunity to take a polygraph test relating to the basis of his denial and was told that if he passed the polygraph test, he would be discharged from the program with no malice, meaning that he would not be deemed unsuccessful and, therefore, would not be in violation of his probation. The defendant declined that offer. In January, 2004, the defendant was discharged from the sex offender treatment program for unsuccessful treatment as a result of his continued denial of his crimes. On February 5, 2004, the defendant's probation officer applied for an arrest warrant seeking to revoke the defendant's probation as a result of his failure to complete a sex offender treatment program successfully. The court found that the defendant had failed to comply with this condition of his probation, revoked his probation and sentenced him to serve five years of the original sentence. This appeal followed. I , The defendant first claims that because General Statutes § 53a-30 (a) (12) does not include § 53-21 (a) (1) as an enumerated offense for which express authority is given to the court to impose specialized sex offender treatment as a condition of probation, the court was without authority to do so. We disagree. State v. Cyr, 57 Conn. App. 743, 751 A.2d 420, cert. denied, 254 Conn. 905, 755 A.2d 883 (2000), is directly on point with the issue before us. Like the defendant in this case, the defendant in Cyr was convicted of risk of injury to a child in violation of subdivision (1) of the applicable statute, General Statutes (Rev. to 1997) § 53-21 (1) in Cyr, § 53-21 (a) (1) in the present case. In Cyr, this court held that even though General Statutes (Rev. to 1997) § 53a-30 (a) (11), now (12), does not list the offense for which the defendant was convicted, General Statutes (Rev. to 1997) § 53a-30 (a) (12), now (17), "gives the court, in its discretion, the authority to do what it deems reasonably necessary to rehabilitate the probationer and to protect prospective victims of such probationers." State v. Cyr, supra, 748. The court held that the sex offender treatment condition imposed by the sentencing court in Cyr was authorized pursuant to § 53a-30 (a) (12), now (17), regardless of the fact that the dimes for which the defendant was convicted did not fall within the purview of § 53a-30 (a) (11), now (12). Id. Because the present case is indistinguishable from Cyr, the defendant's claim must fail. II The defendant next claims that the court was required to notify him, when he entered his guilty plea under the Alford doctrine, that a failure to acknowledge that he committed the acts with which he was charged would result in a violation of his probation. We are not persuaded. At the outset, we review the pertinent law governing guilty pleas. "It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book § [39-19 and 39-20]. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense." (Internal quotation marks omitted.) State v. Greene, 274 Conn. 134, 143-44, 874 A.2d 750 (2005). "There is no requirement . . . that the defendant be advised of every possible consequence of such a plea. . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. . In Connecticut, the direct consequences of a defendant's plea include only the mandatory minimum and maximum possible sentences; Practice Book § [39-19 (2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19 (4)]; the possibility of additional punishment imposed because of previous conviction(s); Practice Book § [39- 19 (4)]; and the fact that the particular offense does not permit a sentence to be suspended. Practice Book § [39-19 (3)] . . . ." (Internal quotation marks omitted.) State v. Greene, supra, 274 Conn. 145. "Although [probation is the product of statute . . . modifications of probation routinely are left to the office of adult probation. When the court imposes probation, a defendant thereby accepts the possibility that the terms of probation may be modified or enlarged in the future pursuant to § 53a-30. . . . Finally, the due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985) . Where noncriminal activity forms the basis for the revocation of probation . . . due process mandates that the [probationer] cannot be subjected] to a forfeiture of his liberty for those acts unless he is given prior fair warning." (Citations omitted; internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 202-203, 842 A.2d 567 (2004). With those principles in mind, we conclude, as our Supreme Court did in Faraday, that the trial court was not required to notify the defendant, when he entered his plea, that a failure to acknowledge guilt could result in a violation of the condition of his probation requiring sex offender treatment. See id., 203. As in Faraday, the defendant here does not dispute that the trial court stated to him, when he entered his plea, that he was to undergo sex offender treatment as a condition of his probation. The Supreme Court stated: "At that point, it was not incumbent upon the trial court also to list all the potential conduct that could result in a discharge from that program. Furthermore, because the office of adult probation is free to modify the terms of the defendant's probation at any time . it is unrealistic to expect the court to canvass a defendant regarding the conduct necessary to comply with those terms." (Citation omitted.) Id. The defendant claims that General Statutes § 53a-32a, which explicitly provides that a discharge from sex offender treatment for a failure to acknowledge guilt will automatically trigger a probation revocation proceeding, does not specifically refer to § 53-21 (a) (1), the statute under which he was convicted. The defendant contends that, in light of this omission, he reasonably believed that a discharge from sex offender treatment for a failure to acknowledge guilt would not result in probation revocation proceedings. Although § 53a-32a triggers an automatic violation of a probation imposed for certain underlying offenses, there is no indication in the statute, and the defendant does not provide any support for the proposition, that the statute's enumeration of automatic violations is intended to prevent the court from exercising its authority to revoke probation when revocation is not mandated. In other words, although § 53a-32a provides a mechanism for the automatic revocation of probation in cases in which the underlying crimes are specifically enumerated, it does not deprive courts of the discretion to revoke probation under other circumstances. In this case, the defendant was informed by the court, at the time that he was sentenced, that he would be required, as part of his probation, to complete recommended sex offender treatment and to abide by any additional conditions deemed necessary by the office of adult probation. The defendant had notice of the court's ability to impose conditions of probation consistent with his rehabilitation and the safety of the community, and the authority of the office of adult probation to modify or to enlarge the conditions at any time. Additionally, the record reveals that the defendant was told several times, including prior to entering the sex offender treatment program, that refusing to admit to the crimes for which he was convicted would result in an unsatisfactory discharge from the program and the initiation of probation revocation proceedings. As in Faraday, although the defendant was free to maintain the innocence associated with his plea in order to maintain the conditional liberty created by probation, he was required to comply with its conditions. See State v. Faraday, supra, 268 Conn. 206. We therefore conclude that the defendant was adequately apprised of the conditions of his probation and the consequences of his continued denial of guilt with respect to the crimes for which he was convicted. The judgments are affirmed. In this opinion the other judges concurred. "Under North Carolina v. Alford, [400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)], a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless." (Internal quotation marks omitted.) State v. Wheatland, 93 Conn. App. 232, 234 n.1, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006). On June 30, 2003, the defendant filed a motion to modify the conditions of his probation, asking that he not be required to admit to the crimes to which he pleaded guilty as a condition of his sex offender treatment. The court denied the defendant's motion. The court found that the defendant violated his probation in failing to successfully complete sex offender treatment and in changing his residence without approval from his probation officer. Because we conclude that the court properly revoked the defendant's probation on the basis of his failure to successfully complete a sex offender treatment program, we need not address the defendant's claim challenging the court's finding of his failure to stay at a preapproved residence. General Statutes § 53a-30 (a) provides in relevant part: "When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant. . . (12) if convicted of a violation of subdivision (2) of subsection (a) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, undergo specialized sex offender treatment . . . ." We note that the defendant does not dispute, as a factual matter, that he refused to admit guilt in conjunction with his sex offender treatment, nor does he dispute that he was discharged from such treatment. General Statutes (Rev. to 2003) § 53a-30 (a) provides in relevant part: "When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant . . . (16) satisfy any other conditions reasonably related to the defendant's rehabilitation. . . ." The 2003 revision of the General Statutes is applicable in the present case. In the 1997 revision applicable in Cyr, the italicized language appeared in subdivision (12) of § 53a-30 (a). Currently, it appears in subdivision (17). The defendant attempts to distinguish Cyr from the present case by arguing that because General Statutes § l-2z, the statute regarding statutory interpretation, was not in effect when Cyr was decided, the analysis required to interpret General Statutes § 53a-30 since its enactment would differ. The defendant's claim is unavailing because the court's analysis in Cyr was consistent with the rules of statutory construction outlined in § l-2z. General Statutes § 53a-32a provides: "If a defendant who entered a plea of nolo contendere or a guilty plea under the [doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)] to a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1,2000, subdivision (2) of subsection (a) of section 53-21 or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, and was ordered to undergo sex offender treatment as a condition of probation, becomes ineligible for such treatment because of such defendant's refusal to acknowledge that such defendant committed the act or acts charged, such defendant shall be deemed to be in violation of the conditions of such defendant's probation and be returned to court for proceedings in accordance with section 53a-32." The defendant also contends that because Faraday was decided after he entered his plea, reliance on it would be retroactive and improper. The defendant's claim is unavailing because Faraday did not create new law but was founded on the well established principle that a court can impose conditions of probation that are reasonably related to the defendant's rehabilitation, that the defendant may be required to comply with any and all conditions the court could have imposed under General Statutes § 53a-30 (a) and, pursuant to § 53a-30 (c), the office of adult probation, at any time during the period of probation, may modify or enlarge the conditions, whether originally imposed by the court or otherwise. See State v. Smith, 207 Conn. 152, 540 A.2d 679 (1988).

Opinion STOUGHTON, J. The defendant, Zymol Enterprises, Inc., appeals from the judgment rendered after a jury verdict in favor of the plaintiff, Richard Fontana. The defendant claims that the court improperly (1) denied its motion for a remittitur and (2) instructed the jury on the exception to the statute of frauds. We affirm the judgment of the trial court with respect to the first claim and dismiss the appeal as to the defendant's second claim. The jury reasonably could have found the following facts. In 1985, the plaintiff and his son-in-law, Charles E. Bennett, founded Zymol Enterprises, a business that manufactures car cleaning products. In 1988, the business was incorporated as Zymol Enterprises, Inc., the defendant in this action. Bennett was the president and the plaintiff was the vice president of the defendant corporation, with each owning 40 percent of its stock. In 1993, the plaintiff suffered a heart attack and was unable to return to work. Bennett offered to buy the plaintiffs interest in the defendant corporation, and the plaintiff agreed. On October 27, 1993, the plaintiff entered into a deferred compensation agreement (agreement) with the defendant. Pursuant to the agreement, the plaintiff was to receive $295,000 over a ten year term commencing on November 1, 1993, and ending on October 1, 2003, payable in monthly installments of $2500. The defendant also agreed to pay an additional $325 per month each to the plaintiff and his wife until they reached the age of sixty-five. That amount was intended to enable the plaintiff and his wife to obtain medical insurance until they became eligible for medicare. As part of the agreement, the plaintiff, who knew all of the product formulae and customer lists, agreed not to compete with the defendant. He also agreed to provide advisory and consulting services to the defendant up to a maximum of twelve hours per month. The payment of the full $295,000 was not contingent on the plaintiffs performance of those services, however, and the agreement specifically provided that the plaintiff was to continue to receive payments in the event that he was not capable of working due to disability or death. At no time did the plaintiff or his wife ever receive the monthly installments of $325 that the defendant had agreed to pay for their medical insurance. Instead, the defendant continued to cover the plaintiff and his wife under its group medical insurance policy. The plaintiff did not object to this alternative. Gradually, the amount of work performed by the plaintiff for the defendant increased beyond the twelve hours per week designated in the agreement. The plaintiff took telephone calls, received and answered e-mail correspondence on a computer provided by the defendant, trained new employees in product use and went to trade shows and seminars when requested to do so by the defendant. By 2000, the plaintiff was working approximately forty hours per week during the peak months of the automotive season. The plaintiff mentioned this increase in workload to Bennett, who stated that, as compensation for the extra work, the defendant would continue covering the plaintiff and his wife on its medical insurance beyond the dates specified in the agreement. The plaintiff became eligible for medicare in October, 1995, seven months prior to his sixty-fifth birthday, due to a total disability. He informed the defendant of his early eligibility for medicare, yet the defendant continued to cover him on its insurance policy. When the plaintiffs wife reached the age of sixty-five and therefore became eligible for medicare in July, 2001, the defendant continued to pay for her insurance coverage as well. On February 13, 2002, Bennett called the plaintiff to the defendant's headquarters and presented him with a document stating that he had been overpaid on the agreement because of the additional medical insurance provided to him and his wife. Bennett informed the plaintiff that, as credit for this overpayment, the defendant planned to terminate the payments of $2500 before the end of the agreement's term. The document presented to the plaintiff set forth two alternative schedules for how he could receive what the defendant calculated to be the remainder of the amount it owed under the agreement. When the plaintiff rejected both options, Bennett proposed an alternative. He stated that if the plaintiff would agree to work additional hours, the defendant would continue to make the monthly payments of $2500 and cover the plaintiffs medical insurance until the end of the agreement's term. The plaintiff agreed to carry a cellular telephone eight hours per day, five days per week, and answer all calls. Two days later, the defendant provided him with a cellular telephone. In early August, 2002, the plaintiff received a letter from Kevin Houlihan, the defendant's accountant. The letter notified the plaintiff that the defendant was ending its payments of $2500 and his insurance coverage as of October 31, 2002, the date on which it determined its liability to be extinguished under the agreement. The plaintiff contacted Houlihan to tell him of the new oral agreement he had made with Bennett, but Houlihan stated that he was not aware of any oral agreement. The plaintiff attempted but was unable to contact Bennett by telephone. He continued to work for the defendant until he was asked to return his cellular telephone in September, 2002. He stopped receiving payments and insurance coverage after October 31, 2002. The plaintiff brought an action against the defendant, seeking the $30,000 he claimed was due under the agreement. The action went to the jury in two counts. In the first count, the plaintiff alleged that the defendant had breached the agreement by refusing to pay him for the last year of the agreement's term. In the second count, the plaintiff alleged that the defendant had breached an oral agreement to continue payments over the term of the agreement in return for an increase in his services to the defendant. The defendant pleaded by way of special defense that it had paid the full amount due through its health insurance payments. The jury returned a verdict in favor of the plaintiff on each count. It awarded damages of $30,000 on the first count and zero damages on the second count. After the verdict was accepted, the defendant filed a motion for an order of remittitur, which the court denied. This appeal followed. I The defendant first challenges the court's denial of its motion for remittitur on the first count. It contends that the jury's verdict in favor of the plaintiff for $30,000 was excessive because it failed to account for the reasonable value of the health insurance benefits conferred on the plaintiff in excess of the amount to which he was entitled under the agreement. We are not persuaded. "[T]he amount of damages awarded is a matter peculiarly within the province of the jury . [I]t is the jury's right to accept some, none or all of the evidence presented." (Citations omitted; internal quotation marks omitted.) Smith v. Lefebre, 92 Conn. App. 417, 422, 885 A.2d 1232 (2005). "The court's broad power to order a remittitur should be exercised only when it is manifest that the jury have included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions." (Internal quotation marks omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 188, 439 A.2d 935 (1981). "The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . It is the function of this court to determine whether the trial court abused its discretion in denying [a defendant's] motion to set aside the verdict." (Citations omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 320-21, 852 A.2d 703 (2004). In support of its claim that the jury's verdict of $30,000 in favor of the plaintiff on the first count was excessive and contrary to the evidence presented at trial, the defendant cites the undisputed evidence it presented indicating that it had covered the plaintiff and his wife on its health insurance policy for months beyond the dates specified in the agreement. Although the plaintiff testified that Bennett obligated the defendant to provide the additional coverage in a later oral agreement, the defendant contends that the jury rejected the plaintiffs claim because it ostensibly ruled in the defendant's favor on the second count. The defendant reasons that because the jury determined that there was no oral agreement to confer additional insurance coverage, and because undisputed evidence was presented establishing that the defendant did confer that additional benefit, the damages to which the jury found the plaintiff entitled should have been reduced by the reasonable value of the additional benefit conferred. The defendant cannot succeed because the underlying premise for its argument, that the jury found in its favor on the second count, simply is incorrect. In their arguments before this court, both parties assumed that because the jury awarded zero damages on the second count, it returned a verdict in favor of the defendant on that count. The completed jury form indicates, however, that the jury returned a verdict in favor of the plaintiff on both counts. See, e.g., DeVito v. Schwartz, 66 Conn. App. 228, 232 n.4, 784 A.2d 376 (2001). Indeed, the court, in ruling on the defendant's motion for remittitur, interpreted the jury's verdict as being in favor of the plaintiff on the second count. We conclude that the court's interpretation, not that of the parties, was correct. Because the jury's verdict was in favor of the plaintiff on the second count, the court ruled correctly in denying the defendant's motion for remittitur because the verdict was not contrary to the law or to the evidence presented at trial. There was evidence from which the jury could have found that the defendant had not paid the plaintiff the $30,000 due under the agreement, and, in fact, the defendant does not dispute that it made no payments in the final year of the agreement. Although the defendant claimed that the plaintiff was not entitled to the money because he had received additional health insurance equal to that amount, the jury was free to reject this argument, which it did. The defendant failed to request that interrogatories be submitted to the jury; see Peters v. Carra, 10 Conn. App. 410, 412, 523 A.2d 922 (1987); and, thus, we do not know the specific basis on which the jury rejected the special defense. We conclude, however, that in light of the evidence presented at trial, the jury reasonably could have arrived at its decision. The court's denial of the defendant's motion for remittitur, consequently, was not improper. II The second claim made by the defendant on appeal is that the court improperly instructed the jury on the equitable estoppel exception to the statute of frauds. We decline to review this claim for lack of subject matter jurisdiction because the defendant has failed to demonstrate that it was aggrieved by the jury's verdict on the second count. "It is settled law that the right to appeal is purely statutory and is allowed only if the conditions fixed by statute are met. . In all civil actions a requisite element of appealability is that the party claiming error be aggrieved by the decision of the trial court. . . . The test for determining [classical] aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) In re Allison G., 276 Conn. 146, 156-57, 883 A.2d 1226 (2005). "[A] party cannot be aggrieved by a decision that grants the very relief sought. . . . Such a party cannot establish that a specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Id., 158. "Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) Pritchard v. Pritch ard, 92 Conn. App. 327, 339-40, 885 A.2d 207 (2005), cert. granted on other grounds, 277 Conn. 913, 895 A.2d 790 (2006). The court's instruction regarding the statute of frauds applied only to the second count of the complaint, which alleged an oral agreement between the parties. Although the jury ruled in favor of the plaintiff on the second count, it awarded the plaintiff zero damages. The defendant has failed to present any evidence indicating that it has been harmed by the jury's verdict on this count. Aggrievement and mootness are related concepts. In re Allison G., supra, 276 Conn. 156. In the present case, they combine to dispose of the defendant's second claim because the defendant received precisely the relief it had sought with respect to the second count. See id. Accordingly, we decline to address the defendant's claim. See also Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 152 n.12, 681 A.2d 293 (1996) (declining to review defendant's claims regarding count on which jury found in favor of plaintiff but awarded no damages): The appeal is dismissed in part, and the judgment is affirmed. In this opinion the other judges concurr ed. Except for the first year of the agreement, during which, pursuant to a stock redemption agreement entered into by the parties on the same date and apparently incorporated into the agreement, the plaintiff would receive only $25,000, paid in equal monthly installments of $2083.33. The parties' obligations during the first year of the agreement, however, are not at issue in this appeal. See part I. The verdict form, entitled "Plaintiffs Verdict Form," states: "[T]he jury finds the issues in favor of the Plaintiff, Richard Fontana, as against the Defendant, Zymol Enterprises, Inc. . . ." (Emphasis added.) The defendant did not except to the verdict forms submitted to the jury. The court stated: "Now, the issue is or becomes, was there an agreement relative to an oral contract? The plaintiff says yes there was. The defendant says no, there was never any agreement. Thus, this becomes a question for the jury. Since the [jurors] found in favor of the plaintiff in their verdict, they must have believed him and not believed the defendant's corporate officer, who testified that there was no agreement." We note that although the defendant pleaded, by way of special defense, payment of the amount owed, what the defendant actually alleged was a setoff, which, pursuant to Practice Book § 10-54, properly would have been pleaded as a counterclaim. See, e.g., 225 Associates v. Connecticut Housing Finance Authority, 65 Conn. App. 112, 121-22, 782 A.2d 189 (2001). For example, the jury could have rejected the special defense on the basis of the fact that the parties' agreement never called for the defendant to cover the plaintiff on its insurance policy or because the only evidence presented by the defendant as evidence of its expenditures on the insurance premiums was a spreadsheet drafted by the defendant's accountant or because of the plaintiffs testimony that the defendant had agreed to provide that additional insurance coverage in a subsequent oral agreement. "Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct. . In its general application, we have recognized that [tjhere are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . This court previously has applied the doctrine of equitable estoppel to bar a party from asserting the statute of frauds as a defense so as to prevent the use of the statute itself from accomplishing a fraud." (Citations omitted; internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005). See part I. We note that the jury's award of zero damages on the second count is not inconsistent with the evidence presented at trial because the total damages claimed by the plaintiff was $30,000, and that amount was awarded to the plaintiff on the first count. Despite the defendant's contention otherwise, we cannot say that had the jury found in favor of the defendant on the second count, it would have had to have found in favor of the defendant on its special defense. We do not know the basis for the jury's rejection of the defendant's special defense; see part I; and there were alternate grounds on which the jury could have based its decision. See footnote 6.

Opinion STOUGHTON, J. The defendant, Edward Singer, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for the remainder of his sentence. On appeal, he claims that the court (1) improperly found that he had violated the conditions of his probation and (2) abused its discretion in revoking his probation and sentencing him. We affirm the judgment of the trial court. The following facts are relevant to the defendant's appeal. On June 24, 1991, having pleaded guilty to two counts of robbeiy in the first degree, the defendant was sentenced to a total effective term of twenty-five years incarceration, execution suspended after fifteen years, followed by five years of probation. On June 13, 2003, the defendant was released from prison, and, on July 9,2003, he signed the conditions of his probation, which included a special condition that he not carry, possess or control any weapon. On the early morning of January 6, 2004, the defendant and another man, James Pierson, arrived at the New Haven apartment of a woman named Kerry Soules. The three remained in the apartment drinking alcohol. Pierson was in possession of a handgun and at some point fired the gun into a wall of the apartment. Eventually, the three decided to walk to a store a few blocks away. On their way back to Soules' apartment, the defendant entered a backyard in order to relieve himself. Michael Miller, the resident of the property, drove up in a van just as the defendant was exiting the backyard. Miller asked the defendant what he was doing on his property, and the defendant answered him. As Miller got out of his van to confront the defendant, the defendant and Pierson struggled over possession of the gun. The defendant took the gun, pointed it at Miller and threatened him, stating, "You don't want to mess with me." Miller backed away into the doorway of his residence, and the defendant continued walking along the street. Although his view was obstructed, Miller heard the sound of a single gunshot. Soules, who had walked ahead of the others along the street to avoid the confrontation, also heard a gunshot. Shortly thereafter, Officer Diane Gonzales of the New Haven police department received a radio call reporting the incident. She arrived at the scene within minutes and spoke with Miller. Miller, who had recognized Soules as his neighbor, informed Gonzales of Soules' address. Gonzales then went to Soules' apartment and found the defendant, Pierson and Soules inside. Soules directed Gonzales to a dresser drawer in her bedroom where Gonzales found a Ruger .357 caliber revolver. The gun contained one spent round and five live rounds. The defendant was arrested and, when patted down, a live bullet was found in his jacket. In response to the incident, the defendant's probation officer issued a warrant for the defendant's arrest, on the ground that he had violated his probation by possessing, controlling or carrying a firearm. A violation of probation hearing was held over a three day period and, on August 17, 2004, the court concluded that the state had established by a fair preponderance of the evidence that the defendant had violated the terms of his probation. The court returned the defendant to the custody of the commissioner of correction to serve the remaining ten years of his sentence. The defendant appeals from the court's judgment. I At the outset, we address the question of whether the defendant's appeal has become moot. Citing State v. McElveen, 261 Conn. 198, 802 A.2d 74 (2002), and State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005), the state claims that the appeal is moot because the defendant was convicted in federal court on the basis of the events that formed the basis for the violation of probation, which eliminated any controversy as to whether the defendant was in possession of a gun for the purposes of his appeal. We do not agree. The following additional facts are relevant to the issue of mootness. On June 24, 2004, the defendant was indicted by a federal grand jury under 18 U.S.C. § 922 (g) (1) for possession of a firearm and ammunition by a convicted felon. He subsequently was convicted after a jury trial in the United States District Court for the District of Connecticut and, on April 5, 2005, was sentenced to 235 months incarceration. It is undisputed that the factual basis for the defendant's federal conviction was his possession of the gun on January 6, 2004, the same facts that provided the basis for the violation of probation. The defendant appealed from the federal conviction prior to oral argument before this court. In State v. Singleton, supra, 274 Conn. 439, our Supreme Court affirmed its holding in State v. McElveen, supra, 261 Conn. 198, stating that "[w]here, subsequent to a finding of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any live controversy about whether he engaged in the conduct for which his probation was violated." State v. Singleton, supra, 439. We agree with the defendant that this case is distinguishable from McElveen and Singleton because in those cases the defendants had pleaded guilty to the criminal conduct that gave rise to the violation of probation, whereas in the present case, the defendant never admitted his guilt and, although he was found guilty by the jury, he has appealed from his conviction. See State v. Bermudez, 93 Conn. App. 814, 816, 890 A.2d 584, cert. granted on other grounds, 278 Conn. 910, 899 A.2d 39 (2006). Consequently, we conclude that the defendant's claims on appeal are not moot. II We now turn to the claims made by the defendant. The defendant asserts that the court (1) improperly found that he had violated the conditions of his probation and (2) abused its discretion in revoking his probation and sentencing him. We affirm the judgment of the trial court. We note at the outset that " [a] revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing. . . . "A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling. . . . "The standard of review of the trial court's decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004). A We first address the defendant's claim that there was an insufficient factual basis on which the court reasonably could have determined that he had violated a condition of his probation. We conclude that the findings made by the court sufficiently established by a fair preponderance of the evidence that the defendant had possessed a gun and, therefore, violated the special condition of his probation prohibiting him from carrying, possessing or controlling any weapon. "[A] trial court may not find a violation of probation unless it finds that the reasonable predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing. That is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation." (Internal quotation marks omitted.) State v. Treat, 38 Conn. App. 762, 767, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995). "In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence." (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002). At the revocation of probation hearing, Soules testified that the defendant was the individual who had urinated in Miller's driveway and who was confronted by Miller. Miller testified that the individual he found urinating on his property was the same individual who had pointed a gun at his chest. In a report to the police shortly after the incident, Miller described in detail the individual who had threatened him. The court found that Soules' testimony, the testimony of Miller and Miller's description of the defendant, taken together, established by a preponderance of the evidence that the defendant had possession of a weapon and therefore violated a special condition of his probation. We conclude that this finding was supported by the evidence and was not clearly erroneous. B We next address the defendant's claim that the court, after finding that the defendant had violated the conditions of his probation, abused its discretion in revoking his probation and ordering him to serve the remainder of his sentence. We conclude that the court did not abuse its discretion. "If a violation [of a condition of probation] is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served." (Internal quotation marks omitted.) State v. Brunette, 92 Conn. App. 440, 447, 885 A.2d 227 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006). "On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. . In making this second determination, the trial court is vested with broad discretion. . In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender . The important interests in the probationer's liberty and rehabilitation must be balanced, however, against the need to protect the public." (Internal quotation marks omitted.) State v. Durant, 94 Conn. App. 219, 227, 892 A.2d 302, cert. granted on other grounds, 278 Conn. 906, 897 A.2d 100 (2006). In arriving at its decision to revoke the defendant's probation, the court considered the defendant's federal indictment as one basis for concluding that the beneficial aspects of the defendant's probation no longer were being served. The defendant argues that the court's consideration of the federal indictment indicates that the court, in ordering him to serve the remainder of his sentence, improperly imposed a punitive sentence on the basis of a new crime for which he was not yet convicted. We disagree. It is clear from the record that the court made its determination that "any purpose of probation would be meaningless" on the basis of the totality of the defendant's extensive criminal record. Before reaching its conclusion, the court heard arguments from counsel as well as a statement from the defendant. Evidence was presented concerning the defendant's history of numerous serious robbery convictions and multiple prison sentences. In addition, the court placed great emphasis on both the seriousness of the present incident as well as the defendant's lack of remorse and unwillingness to take responsibility for his actions. On the basis of the whole record, we cannot say that the court abused its discretion when it ordered the defendant to serve the remaining ten years of his sentence. The judgment is affirmed. In this opinion the other judges concurred. In the present case, the defendant's federal appeal still is pending. We do not decide, therefore, whether an outcome in the federal appeal would render moot an appeal from a judgment of violation of probation on the basis of the same conduct See State v. Bermudez, supra, 93 Conn. App. 816 n.1. The defendant argues that the court's finding was inadequate because the court relied solely on the testimony of Soules and Miller to reach its conclusion. Witness testimony alone, however, can be an adequate basis on which a fact finder may find that a defendant violated his probation, however. See, e.g., State v. Smith, 57 Conn. App. 290, 298-99, 748 A.2d 883, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000). The defendant claims further that because neither Soules nor Miller saw the defendant discharge the gun, there is insufficient evidence to prove that he acted in that way. The special condition of the defendant's probation prohibits him from carrying, possessing or controlling any weapon. The court's finding that the defendant simply had pointed a gun at Miller, therefore, was sufficient to establish a violation of probation. The court contemplated that the incident could have resulted in serious physical injury had Miller not taken evasive action in response to the defendant's pointing a loaded gun at his chest and verbally threatening him. The defendant stated to the court: "I don't understand how I'm before the court again. . . . The whole incident with this guy never happened. . . . They've been lying in their statements . . .

Opinion LAVINE, J. The issue in this appeal by the state is whether a police officer who arrested the driver of a motor vehicle on a charge of operating under the influence of intoxicating liquor had a reasonable and articulable suspicion on the basis of facts to justify an investigatory stop. Because the driver was not operating the vehicle in an erratic or dangerous manner or otherwise engaged in or about to engage in criminal activity and because there was no report of recent crime in the ar ea, the officer lacked a particularized and objective factual basis to warrant an investigatory stop. An officer's suspicion grounded in a speculative belief that the operator was engaged in avoidance behavior lacks the specific and objective basis necessary to conclude reasonably that an investigatory detention is justified. We therefore affirm the judgment of the trial court. The case has the following procedural background. On April 17, 2004, the defendant, Joshua Milotte, was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. On August 6, 2004, the defendant filed a motion to suppress evidence of his operating a motor vehicle while under the influence because the investigating officer did not have "probable cause" to stop him. He also filed a motion to dismiss the charge because there was insufficient evidence to prosecute him. The defendant filed his motions pursuant to Practice Book § 41-8 (5) and § 14-227a, article first, § 7, 8 and 9, of the constitution of Connecticut, and the sixth and fourteenth amendments to the United States constitution. On December 30, 2004, following a hearing, the court granted both motions. The court made the following findings of fact. At approximately 1:50 a.m. on April 17,2004, the defendant was operating his motor vehicle in a westerly direction on Route 44 in Coventry. Gail McDonnell, a member of the Coventry police department, was patrolling the northern section of Coventry. A police officer for approximately fifteen years, she had attended the municipal police academy twice and had been trained in patrol procedures, investigation and motor vehicle enforcement. She attended a weeklong training program concerning the investigation of operators driving under the influence. As McDonnell was traveling west on Route 44, she noticed a vehicle ahead of her. When the police cruiser was directly behind the vehicle, the operator turned right onto Twin Hills Drive, a U shaped residential street that returned to Route 44. McDonnell was somewhat suspicious of the operator because he had turned his vehicle right immediately after she drew behind his vehicle. She believed that at that hour of the morning, some drivers avoid having a police officer follow them. McDonnell continued west on Route 44 until she encountered the Bolton town line where she turned her vehicle around. As she was traveling east on Route 44, she again observed the vehicle in the parking lot of a 7-Eleven convenience store. McDonnell became more suspicious that the driver of the vehicle was trying to avoid the police, so she processed the license plate number through police dispatch. She learned that the address of the owner of the vehicle was in Willimantic. McDonnell concluded that the driver, therefore, had no reason to turn onto Twin Hills Drive other than to avoid her. She decided to follow the vehicle. When the vehicle left the 7-Eleven parking lot, McDonnell followed, and the operator took the first right turn onto Brewster Street, another residential road. McDonnell's suspicions were heightened because she believed that the operator seemed to be avoiding her. She followed the vehicle until it entered a private driveway at a farmhouse that was completely dark. The operator had turned off the lights of the vehicle. McDonnell continued on and turned her vehicle around. When she passed the farmhouse again, the vehicle was gone. She did not see any taillights on Brewster Street and concluded again that the operator of the vehicle was trying to avoid her. She returned to Route 44 and headed east until she saw the vehicle and activated her overhead lights. The operator drove his vehicle into the Meadowbrook Shopping Plaza, where McDonnell made the investigatory stop. McDonnell noticed the odor of alcohol about the defendant and, after he failed a field sobriety test, arrested him. According to McDonnell, drivers operating under the influence frequently are arrested in the area. The area, however, was not known as a high crime area, and the defendant had not been traveling at a high rate of speed and did not appear to have committed a motor vehicle violation prior to the stop. McDonnell knew that the vehicle was not the subject of a police investigation that evening, that it had not been stolen and that the owner of the vehicle was not wanted by the authorities. On the basis of McDonnell's training and experience, and in light of all the circumstances, she believed that the operator of the vehicle was avoiding contact with the police and that such behavior was typical of a person who was involved in some type of criminal activity. For these reasons, McDonnell suspected that the defendant was engaged in, or was about to engage in, illegal conduct. The court concluded that when McDonnell signaled for the defendant to stop and he drove his vehicle into the Meadowbrook Shopping Plaza, he was seized for purposes of an investigatory detention pursuant to the fourth amendment to the United States constitution and article first, § 7, 8 and 9, of the constitution of Connecticut. See State v. Donahue, 251 Conn. 636, 643, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). After citing the relevant precedent governing the federal and state constitutional law; United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Donahue, supra, 643; State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992); the court concluded that McDonnell did not have the particularized and objective factual basis necessary to conclude reasonably that an investigatory detention of the defendant was justified. McDonnell merely believed that the defendant was trying to avoid her. The court granted the defendant's motions to suppress the evidence and to dismiss the charge against him. Thereafter, the court granted the state's motion to appeal from the judgment of dismissal. "Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality." (Internal quotation marks omitted.) State v. Paradis, 91 Conn. App. 595, 607, 881 A.2d 530 (2005). "On appeal, we apply a familiar standard of review to a trial court's findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the. evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . Because a trial court's determination of the validity of a . . . search [or seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) Id., 607-608. On appeal, the state claims that a particularized and articulable suspicion existed to support McDonnell's stopping the defendant's vehicle and, therefore, the court improperly granted his motion to suppress and dismissed the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs. We disagree. The law controlling the issue on appeal, which is whether there was a particularized and articulable suspicion grounded in fact and sufficient to justify an investigative stop, is well known. The application of those legal principles, however, is necessarily fact bound, and that is the focus of our attention on appeal. "In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity. . A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [supra, 392 U.S. 20-22], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, § 7 and 9 of our state constitution." (Internal quotation marks omitted.) State v. Donahue, supra, 251 Conn. 644. "Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I]n justifying.the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Internal quotation marks omitted.) Id., 645. The essential facts of this case are not in dispute. We agree with the court's analysis of, and reasonable inferences drawn from, the facts it found. McDonnell did not observe the defendant operating his vehicle in an unsafe or illegal manner, including speeding. There were no recent reports of crimes in the area, and McDonnell knew that the vehicle and its owner were not wanted by the authorities. The area where the defendant was operating his vehicle was not a high crime area, although it was a place that McDonnell said was known for a number of arrests made for operating a motor vehicle while under the influence of intoxicating liquor or drugs. Other than McDonnell's belief that the defendant wanted to avoid her, she had no particular reason founded in fact to suspect that the defendant was intoxicated or had committed any other motor vehicle or criminal offense. On the basis of the information she received in response to her having done a check of the vehicle's registration, McDonnell knew before she left the 7-Eleven parking lot that the vehicle was registered and had not been reported stolen, the name of the vehicle's owner and his address in Willimantic. McDonnell had a suspicious feeling about the defendant after he made an immediate right turn after she approached his vehicle on Route 44. Her suspicions intensified when she observed the defendant's vehicle in the 7-Eleven parking lot, saw it turn onto Brewster Street and proceed into the driveway of a darkened farmhouse. There was no evidence as to what the defendant did while he was at the 7-Eleven parking lot or in the driveway of the darkened farmhouse. The court found that McDonnell stopped the defendant because she believed that he was trying to avoid her, a belief predicated in part on the time of day and the fact that the defendant, who lived in Willimantic, traveled on streets and made stops at locations with which she believed he had no connection. An investigatory stop must be justified by some objective manifestation of criminal activity. United States v. Cortez, supra, 449 U.S. 417. The court concluded that under the circumstances of this case, there was no evidence to suggest that the defendant was engaged in or planning to engage in illegal activity. McDonnell therefore lacked a particularized and articulable reason to detain the defendant. The facts of this case are similar to the facts of State v. Donahue, supra, 251 Conn. 647-48, in which the defendant was driving in a deserted, high crime area late at night and made an abrupt turn into an empty parking lot of an establishment that was closed. Although the behavior of the defendant in Donahue was consistent with that which often precedes criminal activity, the defendant was not driving erratically and had not violated motor vehicle laws. Furthermore, the vehicle had not been stolen, nor was it the subject of a police investigation. See also State v. Santos, 267 Conn. 495, 509, 838 A.2d 981 (2004) ("presence in a high crime area at night, without any other facts, cannot form the basis for a reasonable and articulable suspicion that the defendant had engaged or was about to engage in criminal activity"). The facts of this case are dissimilar from those in State v. Lipscomb, 258 Conn. 68, 73-74, 779 A.2d 88 (2001), in which the defendant was driving in an area in which prostitutes were known to hail would be customers. It was late at night when the defendant let a woman, suspected by the police of being a prostitute, into his vehicle after she had flagged him down. In Lipscomb, there was a particularized and articulable basis that justified the stop, i.e., solicitation of prostitution. Appellate courts have long said that a particularized and articulable reason to conduct an investigatory stop must be based on more than a hunch. Terry v. Ohio, supra, 392 U.S. 27. Whatever visceral or intuitive feeling McDonnell had about the way in which the defendant operated his vehicle on April 17, 2004, when all is said and done, it was nothing more than a hunch. McDonnell cited no specific facts to indicate that the defendant was operating his vehicle while under the influence of intoxicating liquor or that he was otherwise engaged in, or about to engage in, criminal behavior. For that reason, the stop was not justified, and the court properly granted the motion to suppress the evidence that was the fruit of the poisonous tree and the motion to dismiss the case. The judgment is affirmed. In this opinion the other judges concurred. Although the defendant cited probable cause as the standard in his motion to suppress, reasonable suspicion, not probable cause, is the applicable standard. The court took judicial notice of the fact that the towns of Mansfield and Windham abut the southeast boundary of the town of Coventry and that the city of Willimantic is part of the town of Windham. Conn. Register and Manual (2003) pp. 603, 681. The parties do not dispute that the defendant was seized at the time of the stop. In its brief, the state argued that avoidance behavior on the part of a suspect, in and of itself, is an objective and reasonable basis to justify an investigatory stop. In support of that argument, the state cited a number of federal cases. We have reviewed the facts of the federal cases cited and conclude that they are factually distinguishable, most notably because the suspicious behavior took place in high crime areas, and the evasive action was consistent with the types of crime committed in that area. For example, in United States v. Arvizu, 534 U.S. 266, 269-71, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002), the border patrol was alerted by a sensor to a vehicle on a back road at a time when roving patrols were returning to a checkpoint for a shift change. The driver slowed as he approached the patrol, but did not acknowledge the patrol with a wave as was customary on the desolate, unpaved road. The patrol noticed that the knees of two children in the backseat of the vehicle were unusually high, as if the children were sitting on something. The children turned and mechanically waved at the patrol for four or five minutes. The vehicle was similar to the type used in smuggling and was registered to an address in an area notorious for smuggling. The driver turned onto a rough road just before the checkpoint. We also take this opportunity to note that the state failed to conform its table of authorities to our rules of practice when citing to federal decisions that have not been reported officially. See Practice Book § 67-9. We are aware that counsel frequently make use of electronic databases to find decisions that are not published in official reporters. In such instances, citations must conform to Practice Book § 67-11 (c), and if the case is cited in a party's brief, the text of the decision must be included in the appendix to the brief. See Practice Book § 67-9.

Opinion GRUENDEL, J. In this legal malpractice action, the plaintiff, Sandra A. Dixon, appeals from the summary judgment rendered by the trial court in favor of the defendant law firm, Bromson & Reiner. On appeal, the plaintiff claims that the court improperly concluded that expert testimony was necessary to show (1) the standard of proper professional care and (2) that the defendant's alleged breach of its duty of care proximately caused the plaintiff's alleged loss or damages. We conclude that, in the absence of such testimony, the court properly rendered summary judgment in favor of the defendant. The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On November 1, 1994, the plaintiff retained the defendant to represent her in a lawsuit seeking the partition of real property in which she owned an interest. In that case, the plaintiff opposed partition by sale and sought to have the court order a partition in kind because she and her three children wanted to retain their one-half interest in the property. On September 17, 1999, the court, Peck, J., found against the plaintiff and ordered a partition by sale, noting that a partition in kind was impracticable given the property's physical attributes. The court also noted that the testimony of two experts revealed that no surveys or studies had been done in connection with the property and, therefore, it could not determine how much of the property was capable of development. The decision was affirmed by this court in a per curiam opinion. See Africano v. Dixon, 60 Conn. App. 909, 761 A.2d 801 (2000). The plaintiff then commenced an action for legal malpractice against the defendant on August 28, 2002, claiming that the defendant had failed to meet the appropriate standard of care. Specifically, the plaintiff claimed that the defendant had failed to obtain and provide appropriate surveys, studies and any other evidence to show that the property could be fairly and equitably partitioned in kind. At the close of discovery, the defendant filed a motion for summary judgment, contending that because the plaintiff did not plan to call an expert to testify as to the legal standard of care and causation, no verdict favorable to the plaintiff was possible. The plaintiff argued that the standard of care was obvious to any layperson from the court order in the underlying case. The court, Miller, J., rendered summary judgment in favor of the defendant on February 18, 2005, noting that the plaintiff could not establish causation without the testimony of an expert witness. This appeal followed. As a preliminary matter, we set forth the standard of review. "Our review of a trial court's decision to grant [a] motion for summary judgment is plenary. . . . Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn. App. 666, 670, 874 A.2d 798 (2005). "Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . Generally, to prevail in a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care. . . . Furthermore, the plaintiff must prove (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." (Citations omitted; internal quotation marks omitted.) Dubreuil v. Witt, 80 Conn. App. 410, 420, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 860 A.2d 698 (2004). "The rationale underlying [the requirement of expert testimony] is that in most cases, the determination of an attorney's standard of care, which depends on the particular circumstances of the attorney's representation, is beyond the experience of the average layperson, including members of the jury and perhaps even the presiding judge. . . . The general rule does not, however, apply to cases where there is present such an obvious and gross want of care and skill that the neglect is clear even to a layperson." (Citation omitted; internal quotation marks omitted.) St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc., 84 Conn. App. 88, 95, 851 A.2d 1242, cert. denied, 271 Conn. 918, 859 A.2d 570 (2004). Thus, unless the defendant's performance constituted such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, the plaintiff was required to present expert testimony to establish the proper standard of professional skill and care and to assist the court in evaluating the defendant's performance in light of that standard. In the present appeal, the plaintiff first argues that the exception to the expert witness requirement applies here because, on the basis of the decision of the court, Peck, J., in the partition action, the defendant "obviously" violated its standard of care. In support of this claim, the plaintiff asserts that the court in the partition action "already had decided the question of the failure of the attorneys to present the evidence required to prevail." We disagree. Judge Peck did not state or indicate in any way that the defendant was responsible for producing certain evidence the court found lacking. In granting the defendant's motion for summary judgment, Judge Miller stated that "an observation by a trial judge . . . that evidence was not produced to support a contention does not mean that the failure to produce that evidence was the result of professional negligence by trial coun sel." This was not a case in which the defendant's alleged want of care was so gross and obvious that its failure to comply with the standard of care was clear, especially to a layperson. Citing Dubreuil v. Witt, supra, 80 Conn. App. 410, the plaintiff also contends that expert testimony was not required because the case was tried before a court, not a jury. In Dubreuil, this court concluded that an expert was not necessary when the alleged legal malpractice involved a failure to follow rules of procedure, such as filing motions and attending hearings, of which a judge of the Superior Court is well aware. Id. We nonetheless noted that "[o]ur holding is limited to the circumstances of this case. We do not hold or imply that a judge of the Superior Court is an expert in every area of the law and that expert testimony does not have to be presented in cases involving other types of legal malpractice tried to the court." Id., 422 n.7. Because the plaintiffs claim of malpractice here did not simply involve mies of practice and procedure, we find her claim meritless. The court, therefore, properly determined that expert testimony was required to determine whether the defendant's performance complied with the requisite standard of care. The plaintiff next claims that an expert witness was not needed to show that the defendant's alleged breach of care proximately caused the plaintiffs alleged loss or damages. In support of this theory, the plaintiff argues that fact witnesses, as opposed to expert witnesses, may be presented to prove the availability of the omitted evidence and that their advance disclosure is not required. The plaintiff fails to consider, however, that in a legal malpractice case such as this, an expert witness is necessary to opine whether the defendant's alleged breach of care proximately caused the plaintiffs alleged loss or damages. See Beecher v. Greaves, 73 Conn. App. 561, 808 A.2d 1143 (2002) (plaintiff must produce expert opinion testimony that breach of professional standard of care occurred and that breach was proximate cause of plaintiffs injuries). Further, Judge Miller recognized that the "plaintiff cannot prevail in the trial of this matter without expert testimony on the issue of causation unless she can establish that the kind or kinds of evidence in question actually existed, but were not put into evidence by the defendant." Because of the plaintiffs decision not to call any expert witnesses, the court determined that the "[plaintiffs] case on causation cannot achieve even the status of 'pure conjecture.' " Id. The court therefore properly determined that the testimony of an expert witness on the legal standard of care and causation was needed in the present case. Accordingly, the court properly granted the defendant's motion for summary judgment. The judgment is affirmed. In this opinion the other judges concurred. The court stated in its decision: "[Although there is 710 feet of frontage along Spring Street, the entire rear portion of the parcel consists of slopes which are likely to prove to be undevelopable. Because there is agreement between the parties as to the value of the property as a single parcel and substantial uncertainty as to the value of the property if divided, there is no basis for the court to conclude that the property, given its physical attributes, could be fairly or equitably partitioned in kind. Rather, the court, finds by a preponderance of the evidence that partition of this property in kind is impracticable and, more likely than not, to be inequitable and that the diverse interests of the owners will best be promoted by a partition by sale." Africano v. Dixon, Superior Court, judicial district of Hartford, Docket No. 560280 (September 17, 1999). The court stated: "The expert testimony revealed that there has been no survey, environmental, engineering, wetlands or other studies done in connection with this property, all of which may impact on its marketability either in whole or in part. Consequently, neither expert was able to say how much of the property was capable of development." Africano v. Dixon, Superior Court, judicial district of Hartford, Docket No. 560280 (September 17, 1999). In her brief, the plaintiff claims that the defendant "presented no survey at the partition trial and no evidence concerning any environmental, engineering or wetland studies," and therefore failed to meet its appropriate standard of care. Judge Miller further emphasized this point, stating that "[tjhere is nothing in Judge Peck's opinion, which suggests, let alone specifically states, that she found any lack of care on the part of [the defendant's] counsel."

Opinion PELLEGRINO, J. In this action for breach of contract, the defendants, Roger Higbie and Hyun Higbie, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Michael Forastiere, Michael O'Loughlin and David Popkin. On appeal, the defendants claim that the court improperly (1) found that the parties had agreed to share the cost of paving a road and (2) granted the plaintiffs' motion for attorney's fees. We affirm the judgment of the trial court. The parties reside on a private road in Westport. In 1999, they discussed the possibility of extending a water main to the end of the road and paving the road. On June 22, 2000, the parties signed a contract with Bridgeport Hydraulic Company (Bridgeport Hydraulic) to extend the water main, but they decided not to begin work until they had hired a paving contractor. The parties still had not hired a paving contractor by June 2, 2001, when Roger Higbie wrote a letter to the plaintiffs, informing them that Bridgeport Hydraulic would raise its price to extend the water main unless the parties paid the entire cost before June 15, 2001. In that letter, Higbie asked each of the plaintiffs to send him a check for one quarter of the total cost and stated that "the subsequent paving can be a separate issue . . . ." The plaintiffs paid Higbie, and Bridgeport Hydraulic thereafter extended the water main. On August 30 and November 6, 2001, Popkin sent the other parties estimates of the cost of paving the road. The defendants wrote a letter to the plaintiffs on November 17,2001, in which they stated: "Just to reiterate what we have said before, we are not interested in participating in a full pavement of [the road] . If some of you want to pave the whole road, we have no objection, but we are not responsible for the expense." The plaintiffs then hired a paving contractor for $9500 and asked the defendants to pay one quarter of that cost, but they refused to do so. The plaintiffs commenced this action in the small claims session of the Superior Court, seeking $2375 for the defendants' share of the paving cost. The defendants transferred the case to the regular docket, where the court conducted a trial, found that the parties had agreed to share the paving cost and awarded the plaintiffs $2375 in damages. The court later awarded the plaintiffs $13,640 in attorney's fees, pursuant to General Statutes § 52-251a. The defendants then filed this appeal. I The defendants first claim that they agreed to pay only one quarter of the costs necessary to extend the water main. The defendants contend that Popkin misled them into believing that paving the road was a necessary cost of extending the water main. They argue that they learned of Popkin's alleged misrepresentation before Roger Higbie sent his letter of June 2, 2001, and that that letter and the Higbies' subsequent letter of November 17, 2001, relieved them of any responsibility to pay one quarter of the cost to pave the road. We disagree. "The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence." (Internal quotation marks omitted.) Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 731, 890 A.2d 113 (2006). "[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evi dence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) U.S. Bank National Assn. v. Palmer, 88 Conn. App. 330, 336, 869 A.2d 666 (2005). Our review of the transcript indicates that the court's finding of an agreement among the parties to pave the road depended heavily on its assessment of the credibility of the witnesses. Roger Higbie's letter of June 2, 2001, which asked the plaintiffs to pay their share of the cost to extend the water main and stated that "the subsequent paving can be a separate issue" was not sufficient to repudiate the parties' agreement, as the defendants argue, but to the contrary, supported the court's finding of an agreement. The court found that that letter "said nothing more or less than what the parties had always understood . . . [which was] that they were not going to have the paving work done until after the water line was constructed . . . ." The defendants have failed to persuade us that the court's finding regarding that letter was clearly erroneous. Although the defendants contend that Popkin had misrepresented the relationship between the water main extension and the road paving, and that they had discovered the misrepresentation before Roger Higbie wrote his letter of June 2, 2001, that letter failed to communicate their intent not to proceed with the road paving. The court found that the defendants' letter of November 17, 2001, expressed their reluctance to proceed with the road paving, but the court was entitled to give less weight to that letter in divining the parties' intent because the defendants wrote that letter after the water main had been extended. We conclude that the court's finding of an agreement among the parties to share the cost of paving the road was not clearly erroneous. II The defendants next claim that the court improperly granted the plaintiffs' motion for attorney's fees. We disagree. "We review the award of attorney's fees for a clear abuse of discretion. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. . . . [W]e may not alter an award of attorney's fees unless the trial court has clearly abused its discretion . . . ." (Internal quotation marks omitted.) Krack v. Action Motors Corp., 87 Conn. App. 687, 694-95, 867 A.2d 86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005). The defendants argue that the court should not have granted the plaintiffs' motion for attorney's fees because (1) the parties are equally sophisticated litigants and (2) the court rejected count three of the plaintiffs' amended complaint, in which Forastiere separately alleged promissory estoppel, and therefore the plaintiffs did not prevail, as required by § 52-251a. We find both of those arguments unpersuasive. Section 52-251a does not require a party to be more sophisticated than the opposing party or that a party must prevail as to every claim. The court's discretion to award attorney's fees under § 52-25 la, therefore, is not limited by the relative sophistication of the parties or the number of counts on which the plaintiffs prevail. See Costanzo v. Mulshine, 94 Conn. App. 655, 663-66, 893 A.2d 905 (2006) (explaining that factors inconsistent with the policy underlying § 52-25 la are not to be considered in determining whether to award attorney's fees). In the present case, the court; granted the plaintiffs' motion for attorney's fees on the basis of its consideration of all the circumstances. We conclude that the defendants have failed to show that the court clearly abused its discretion. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 52-251a provides: "Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney's fees to be taxed by the court." Although the record does not contain a written memorandum of decision or a signed transcript of the court's oral decisions in compliance with Practice Book § 64-1, we will review the defendants' claims because the transcript contains a sufficiently detailed and concise statement of the court's findings and conclusions in connection with its decisions. See McCord v. Fredette, 92 Conn. App. 131, 132 n.3, 883 A.2d 1258 (2005).

Opinion FLYNN, C. J. The defendant, Eric Alvarez, appeals from the judgment of conviction, rendered following a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). After a jury trial on a part B information that same day, the defendant also was found guilty of committing an offense while on release in violation of General Statutes § 53a-40b. He received a total effective sentence of thirty years incarceration, execution suspended after sixteen years, and five years probation. On appeal, the defendant claims that (1) the trial court failed to question him adequately concerning his dissatisfaction with his attorney, which led to the court's failure to appoint substitute counsel, and (2) the prosecutor committed several instances of misconduct, depriving the defendant of due process and a fair trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On September 5, 2003, the defendant entered J. Roberts Jewelers in Bristol and informed Clayton Roberts, one of the owners of the store, that he was interested in purchasing something for his girlfriend. After being shown several rings, the defendant grabbed a five diamond wedding ring, worth $1400, and ran out of the store. Roberts chased him for several blocks, but gave up the chase when he thought he saw the defendant remove a knife from his pocket. Later that day, the defendant sold the ring for some heroin. On September 12, 2003, Roberts picked out the defendant's photograph from an array shown to him by a detective from the Bristol police department. The defendant was arrested and brought to trial. He testified on his own behalf, admitting that he had stolen the ring to support his heroin addiction. He denied possessing a knife, however. Following his conviction, the defendant filed the present appeal. Additional facts will be set forth as necessary. I On appeal, the defendant first claims that the court abused its discretion in the manner in which it responded to his complaints concerning his attorney. The defendant argues that the court should have questioned him further when he displayed some dissatisfaction with his appointed counsel. Additionally, he argues that the court should have appointed substitute counsel. We disagree. Our standard of review concerning the court's obligation to conduct an inquiry into the defendant's request for new counsel is the abuse of discretion standard. State v. Hansen, 39 Conn. App. 384, 399, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). "Where a defendant voices a seemingly substantial complaint about counsel, the court should inquire into the reasons for dissatisfaction. . . . When the defendant's concerns fall short of a seemingly substantial complaint, however, our Supreme Court has instructed that the trial court does not act improperly in failing to inquire into the reasons underlying the defendant's dissatisfaction with his attorney." (Citation omitted; internal quotation marks omitted.) State v. Binnette, 86 Conn. App. 491, 503-504, 861 A.2d 1197 (2004), cert. denied, 273 Conn. 902, 868 A.2d 745 (2005). Additionally, "[a] trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints." State v. Hansen, supra, 399. On August 6, 2004, just prior to beginning jury selection, the defendant requested to address the court. The following colloquy occurred: "The Defendant: Can I speak? "The Court: Yes, sir. "The Defendant: Okay. There's going to be a problem if he's going to represent me because, listen, the guy has — he has pending cases in the habeas corpus courts, too. They're investigating this guy. I don't feel safe being here with him on my side. I mean, he's talking about I got to take the ten years or do pro se. If I do pro se, I won't understand what's going on. "The Court: Well, you don't have to go pro se. [Your defense attorney] is ready, willing and able to represent you. "The Defendant: Yeah, I know he's ready, willing and able. He's ready, willing and able to take my life away from me. I'm in twenty years, come on. "The Court: Well, the charges— " The Defendant: I feel threatened — I feel threatened because he's right here by me anyways. "The Court: How do you mean you feel threatened, sir? "The Defendant: I feel threatened. The guy — I mean, he's not going to do nothing for me. "The Court: Well, [your defense attorney] has represented a lot of defendants in front of me— "The Defendant: And he has also— "The Court: — including people charged with— "The Defendant: — he has also lost. "The Court: Well, let me — I let you speak, sir, and I'll let you speak again, just let me say something for a minute. [Your defense attorney] has represented a lot of defendants in front of me, including defendants in murder cases. He has always done a fine job, as far as I could tell. Some of them have been convicted; some of them have been acquitted. That's the way it goes. I mean, I don't know anything about your case. But I know that if there are some problems with the state's case, [your defense attorney] is fully capable of exposing those problems to the jury and making sure that you get a fair trial and a fair opportunity to be found not guilty if that's what the evidence persuades the jury to do. So, based on my experience with [your defense attorney] — you've never had a case with [your defense attorney] before, have you? "The Defendant: No. "The Court: He hasn't represented you before? "The Defendant: No. "The Court: Based on my experience with him and my observation of him, he does a fíne job on behalf of his clients, and he has been successful in representing several of them. So, I don't think you should feel threatened that your die is cast here as far as whether you're going to be found guilty or not guilty. I mean, as I said, I don't know anything about your case. But if there are some problems with the state's case, [your defense attorney] is fully capable of exposing them to the jury. So, I don't want you to feel threatened and you're certainly not — it's certainly not a matter of taking the deal or going pro se. [Your defense attorney] is ready to represent you, and he will. "So — and as far as I'm concerned, I'm going to be the judge presiding over the jury selection and the trial. If there are legal issues that come up that [your defense attorney] raises, and they're in your favor, then that's the way I'll decide them. If they're in the state's favor, then I'll decide them in favor of the state. "So — I mean, I think, Mr. Alvarez, you're going to get a fair trial here, and [your defense attorney] is going to represent you effectively. I don't know what the evidence is going to show, but— "The Defendant: They shouldn't show nothing. "The Court: Well, maybe that's so, sir. So, what I want to know, Mr. Alvarez, is, when I bring these jurors down in the room, you know, they're going to be looking at you, they're going to be — the jurors are going to decide this case guilty or not guilty. Are you going to be on good behavior so that we can — you can give them the best impression that you want them to have of yourself? "The Defendant: Yes. I said, yeah. "[Defense Counsel]: He said, yes. "The Court: All right, sir. We're going to take a recess now. You'll go back into the holding area out there, and then we'll bring the jurors down and then we'll start the jury selection process." The defendant offered no further comments or concerns regarding any dissatisfaction with his attorney or the desire to have substitute counsel appointed on his behalf. Relying on United States v. Gallop, 838 F.2d 105, 108 (4th Cir.), cert. denied, 487 U.S. 1211, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988), the defendant argues that "[i]n evaluating whether a trial court abused its discretion in denying the defendant's motion for substitution of counsel, an appellate court should consider the following factors: [t]he timeliness of the motion; the adequacy of the court's inquiry into the defendant's complaint; and whether the attorney-client conflict was so great that it resulted in a total lack of communication and prevented an adequate defense." Although it is not clear that the defendant requested or truly wanted substitute counsel when he addressed the court, even if we employ the factors requested by the defendant, we arrive at the conclusion that the court did not abuse its discretion when responding to the defendant's concerns regarding his attorney or any purported motion to substitute counsel. First, the defendant asked to address the court just prior to the start of jury selection, and he stated that he had some reseivations concerning appointed counsel. Even if we assume that the defendant was requesting substitute counsel, the timing of this request was the eve of trial. "[C]ourts repeatedly have held that the proper administration of justice requires that . . . last-minute requests for change of counsel, absent some showing of great need, should be refused." State v. Beaulieu, 164 Conn. 620, 627, 325 A.2d 263 (1973). Second, the record indicates that the court inquired into the defendant's complaint with regard to his counsel and specifically told the defendant that he could speak again after the court finished its statement, and the defendant did not attempt to speak again or attempt to raise additional concerns. The defendant told the court that he felt threatened by his counsel's representation because his defense attorney was "not going to do [anything] for [him]" and because counsel had ineffective assistance of counsel claims pending against him in the habeas court. The defendant did not state that he had conflicts with his attorney or imply that there were exceptional circumstances in this case. Although a reading of the transcript leads us to believe that the court cut off the defendant while he was explaining the reasons for his concerns, the court specifically told the defendant that he could address the court again, which the defendant did not attempt to do either immediately after the court finished speaking or at any other time. In the absence of any substantial complaint made by the defendant or the indication that he was precluded from offering such a complaint, we conclude that the court did not abuse its discretion in the manner in which it handled the defendant's concerns. Third, there is nothing in the record that would demonstrate that a conflict between the defendant and his attorney existed at the time the defendant requested permission to address the court, so great that it resulted in a total lack of communication and prevented an adequate defense. Although the defendant argues in his brief that he and his attorney "had become embroiled in an irreconcilable conflict" because he believed that his attorney had turned over confidential information to the prosecutor, there is nothing in the record before us to substantiate that the defendant had this belief at the time he addressed the court. Additionally, aside from the defendant's argument on this issue and his representation that he "eventually" filed a grievance against counsel, there is nothing in the record to substantiate his argument. Reviewing the record before us, we can find nothing to demonstrate that a conflict, resulting in a total lack of communication such that it prevented an adequate defense, existed between the defendant and his attorney at the time the defendant requested to address the court. Accordingly, we conclude that the court did not abuse its discretion in the manner in which it addressed the defendant's concern or purported request for substitute counsel. II The defendant next claims that he is entitled to a new trial because the prosecutor committed three instances of misconduct during cross-examination and final argument that resulted in a denial of due process and the right to a fair trial. We agree that one of the remarks made by the prosecutor was improper but conclude that this isolated incident did not deprive the defendant of a fair trial. In analyzing claims of prosecutorial misconduct, we conduct a two step inquiry. "The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial." (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004). If we determine that prosecutorial misconduct has occurred, we must then apply the six factors set out in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to determine whether the misconduct reached a level so severe as to amount to a denial of due process and the right to a fair trial. See State v. Stevenson, supra, 573. The six Williams factors are "the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case." (Internal quotation marks omitted.) Id. We begin by reviewing each of the three alleged instances of misconduct to determine whether misconduct actually occurred. A First, the defendant argues that the prosecutor committed misconduct when, during the closing argument in the part B trial, the prosecutor improperly attempted to shift the burden of proof. We do not agree. During the trial on the part B information, the state presented three witnesses who testified that when the defendant committed the crime in this case, he was out on bond on two separate cases. Certified copies of these bonds also were introduced as exhibits. The defendant did not call any witnesses on his behalf nor did he cross-examine the state's witnesses. In short, the evidence on the part B charge was uncontroverted. As the prosecutor was wrapping up his closing argument, after reviewing the evidence, he stated: "That's the evidence you have. I just point out that none of the witnesses were cross-examined, and the defense did not put on a case." The defendant claims that this statement was an improper attempt to shift the burden of proof, thus depriving him of a fair trial. We conclude that the state properly was pointing out that the evidence was uncontroverted and that the state was not engaging in misconduct. Our Supreme Court has recognized that "closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 533-34, 610 A.2d 1113 (1992). As we explained in State v. Jarrett, 82 Conn. App. 489, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004), "[t]he state is not prohibited from calling to the juiy's attention any portion of the evidence that stands uncontradicted . . . ." (Internal quotation marks omitted.) Id., 503. In Jarrett, the defendant claimed that the prosecutor improperly had commented on the defendant's failure to testify, depriving him of the right not to testify and improperly attempting to shift the burden of proof, where the prosecutor, during closing argument, had commented on the lack of an explanation for why some evidence had been found with the defendant's personal papers. Id., 502-503. We explained that the prosecutor's comments were not improper because the state was permitted to discuss and to point out evidence that was uncontested by the defendant. Id., 503. In the present case, the state had presented three witnesses in the part B trial. None of the witnesses was cross-examined, and the defendant called no witnesses on his behalf. This part B trial was on the charge of committing an offense while on release, and the defendant already had been found guilty in the first phase of trial. The comment by the prosecutor after the presentation of the uncontested evidence in the part B trial summed up the evidence during closing argument and, in short, reminded the jury that the evidence was uncontroverted. Under the particular circumstances of this case, where the same jury had found the defendant guilty, we conclude that this did not improperly shift the burden of proof and, accordingly, was not improper. B The second instance of misconduct alleged by the defendant occurred when the prosecutor once referred to the defendant as a "110 pound junk[ie]"; (emphasis added); during rebuttal closing argument in the first phase of trial. The defendant argues that the use of the word "junkie" was an improper appeal to the prejudices of the jury. We agree. The term "junkie" is pejorative. It is a downgrading, disparaging term used to describe members of society who are addicted to narcotics or other drugs or substances having an effect similar to narcotics. "It is well settled that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state's case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. Sargent, 87 Conn. App. 24, 38, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005). The defendant testified that he had a heroin addiction and that he stole to support that habit. Additionally, defense counsel argued in his closing statement that the defendant stole the ring because he had a drug problem and "needed a fix." The defendant had not characterized himself as a "junkie" and, therefore, use of the term by the prosecutor could not be justified on the basis of the defendant's use of that same term as was the case in State v. Moore, 49 Conn. App. 13, 30, 713 A.2d 859 (1998), in which we found that use of terms like "thief" and "robber" were justified because the defendant had characterized himself in that manner. We accordingly conclude that the comment was improper. C The final instance of alleged misconduct raised by the defendant occurred when, during cross-examination, the prosecutor allegedly suggested that the defendant was guilty of additional uncharged misconduct. The defendant argues that the prosecutor, on more than one occasion during cross-examination of the defendant, referred to a "conspiracy," a crime with which the defendant had not been charged. Additionally, the defendant argues that the prosecutor improperly inquired into the defendant's possible involvement in the sale of stolen goods, another crime with which the defendant had not been charged. The defendant did not object to these questions nor did he request a curative instruction. Nevertheless, he claims for the first time on appeal that the questions were improper and prejudicial, and that the court should have, sua sponte, given a curative instruction to the jury. We conclude that this questioning was not improper but was based on the defendant's own testimony. "We first examine the level of deference accorded to counsel when cross-examining a witness. In general, the court has wide discretion in setting the scope of cross-examination. . . . Although cross-examination is limited to the subject matter of the direct examination . . . the cross-examiner may elicit not only any fact that would tend to contradict or to qualify any particular fact stated on direct examination, but also anything that would tend to modify any conclusion or inference resulting from the facts so stated." (Citations omitted.) State v. Vazquez, 79 Conn. App. 219, 226, 830 A.2d 261, cert. denied, 266 Conn. 918, 833 A.2d 468 (2003). "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party." (Citations omitted; internal quotation marks omitted.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). On direct examination, the defendant testified that he stole items in order to sell them to support his drug habit. He also testified that in this particular case, after stealing the ring from J. Roberts Jewelers, he ran from the store and was waiting for someone to pick him up. In response to this testimony, the prosecutor, on cross-examination, questioned the defendant about who was supposed to pick him up after the theft. The defendant responded to these questions by testifying that he "had somebody waiting for [him]" and this person, the getaway driver, also was involved in the plan to steal the ring. When the prosecutor asked the defendant, "[W]ho [was] your coconspirator?" the defendant responded, "I'll just say Edman." The prosecutor then inquired further about the defendant's relationship with Edman and what they had been doing shortly before the theft of the ring. The defendant responded by telling the prosecutor that Edman had some items that he wanted to sell, and the defendant told Edman where he could sell them. The prosecutor then asked the defendant if the items were stolen, to which the defendant responded that he did not want to say. First of all, the prosecutor's reference to a "conspiracy" or a "coconspirator" directly related to the evidence and the testimony offered by the defendant. The defendant testified on direct examination that he was waiting for someone to pick him up after he had stolen the ring, and, on cross-examination, he further stated that this person was involved in the plan to steal the ring. A conspiracy is defined as "[a]n agreement by two or more persons to commit an unlawful act . . . ." Black's Law Dictionary (7th Ed. 1999). The defendant's own testimony fits within this definition. As to the prosecutor's elicitation of what the defendant and Edman had been doing prior to the theft of the ring, it was the defendant, himself, who offered the testimony concerning Edman's wanting to sell some items. "We recognize that evidence of guilt of other crimes is normally inadmissible because of the danger that the jury will infer that if a person committed an earlier crime he probably committed the present crime as well. . . . This rule, however, is not without its exceptions. . . . [Where] [t]he field of inquiry [is] opened by the defendant . he cannot complain if the state attempts] to clarify that field, even if the evidence would otherwise be inadmissible." (Citation omitted; internal quotation marks omitted.) State v. Delosantos, 13 Conn. App. 386, 389, 536 A.2d 609 (1988). Finally, as to the defendant's argument that this line of questioning was unfairly prejudicial, we reiterate that "[e]vidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. . . . All evidence adverse to a party is, to some degree, prejudicial." (Internal quotation marks omitted.) State v. Vazquez, supra, 79 Conn. App. 228. We conclude in this case that the prosecutor merely was responding to the defendant's own testimony and not engaging in misconduct. See id. ("given the considerable leeway allowed to counsel on cross-examination to delve into subjects that have been even tangentially broached or their consequent inferences, the prosecutor's line of questioning . . . was not improper"). D In applying the Williams factors to the improper use of the term "junkie" by the prosecutor, we conclude that the improper use of that pejorative did not deprive the defendant of a fair trial. There was no objection by the defendant. The term was used only once. There was no dispute that the defendant, and not some other person, had at least committed a larceny, and, therefore, the case was strong. No curative instruction was sought. The use of the term was not invited by defense conduct or argument. Use of the term was not central to either the part A or the part B informations. The part A information revolved around the issue of whether the defendant had committed his admitted larceny by force. The part B information addressed only whether the defendant had committed an offense while on release. Such pejoratives as the word "junkie" are improper because they are a distraction from the jury's duty and tend to stigmatize a defendant who, while on trial, still must be treated with dignity and respect. Our Supreme Court has discouraged the use of "personal and degrading epithets to describe the defendant." State v. Williams, supra, 204 Conn. 545. In light of the entire trial record and the application of the Williams factors, how ever, the isolated use of this term did not deprive the defendant of a fair trial. The judgment is affirmed. In this opinion the other judges concurred. Roberts testified that the defendant grabbed this ring from Roberts' hand. The defendant testified that he grabbed the ring from the countertop. We also have no record of the alleged grievance. The defendant did not object to any of these comments at trial. The trial on the part B information involved the charge of committing an offense while on release. The defendant does not argue that this statement interfered with his fifth amendment right against self-incrimination and, accordingly, we do not analyze it under the fifth amendment.

Opinion WEST, J. The defendant, Michael Alexander, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a), possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his prior criminal conviction and (2) instructed the jury on reasonable doubt. We affirm the judgment of the trial court. On July 6, 2001, two Hartford police detectives observed a red car drive up to the defendant, who was standing on a sidewalk. A man exited the car, gave the defendant money, received an item in return and then drove away. As the detectives approached the defendant, he threw a plastic bag into some bushes. The detectives retrieved the bag, arrested the defendant and discovered that he was carrying $2563. A field test revealed that the bag contained cocaine. After a trial, the jmy returned a verdict of guilty on all counts. The court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of fifteen years incarceration, execution suspended after nine years, followed by four years of probation. This appeal followed. I The defendant first claims that the court improperly admitted evidence of his prior criminal conviction. We disagree. In its case-in-chief, the state moved to introduce evidence that, in 1998, the defendant had pleaded guilty to possession of narcotics with intent to sell. The state argued that the defendant's conviction of that crime was relevant to show his intent to sell narcotics in the present case. The court determined that evidence of the defendant's prior conviction would be more prejudicial than probative and, therefore, denied the state's motion, but the court informed the defendant that it would revisit its ruling if he chose to present evidence of his intent or raised the issue on cross-examination. Thereafter, the defendant indicated that he wanted to offer the testimony of his uncle, Robert Wilson, who lived near the site of the defendant's arrest. When the court asked defense counsel to explain the relevance of Wilson's testimony, defense counsel stated that "it indicates that [the defendant] wasn't [in] the area to sell drugs, but to visit a relative, which goes to the issue of . . . whether he was intending to sell the narcotics or use them." The court then asked defense counsel: "So, your claim then, is that [Wilson's] testimony goes to the intent of the defendant on that day?" Defense counsel responded: "Correct." After Wilson testified, the state renewed its motion to introduce evidence of the defendant's prior conviction. The court granted the motion and instructed the jury to consider the conviction only for the puipose of determining the defendant's intent. The defendant argues that the court's admission of evidence of his prior conviction deprived him of a fair trial and the presumption of innocence. We are persuaded, however, that the defendant has cast a purely evidentiary claim in constitutional terms. It is well settled that "[e]vidence of a defendant's bad character, as shown through his commission of other crimes, is inadmissible to show that the defendant on a particular occasion acted in conformity therewith. Such evidence is admissible, however, to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency." State v. Lizzi, 199 Conn. 462, 468, 508 A.2d 16 (1986); see also Conn. Code Evid. § 4-5. "[0]ur common law rules of evidence . . . suggest that the admissibility of prior convictions on appeal is an eviden tiary question . . . ." State v. Varszegi, 236 Conn. 266, 272, 673 A.2d 90 (1996). Furthermore, this court previously has ruled that a claim challenging the introduction of prior convictions for impeachment purposes "is concerned solely with an evidentiary ruling . Calling [the claim] a constitutional issue will not make it one." (Internal quotation marks omitted.) State v. Dawkins, 42 Conn. App. 810, 820, 681 A.2d 989, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996); State v. Varszegi, 36 Conn. App. 680, 686, 653 A.2d 201 (1995), aff'd, 236 Conn. 266, 673 A.2d 90 (1996). Our law is clear that a court may admit evidence of prior convictions for the purpose of proving intent if it determines that the probative value of the evidence outweighs the danger of unfair prejudice. In the defendant's view, the balancing test that our courts employ is insufficient to guard against the prohibition in § 4-5 (a) of the Connecticut Code of Evidence against the use of prior conviction evidence for the purpose of proving bad character or criminal tendencies. The defendant therefore invites us to adopt a different standard for the admissibility of prior conviction evidence and offers us numerous citations to law review articles and cases from other jurisdictions. In particular, the defendant directs us to State v. Sullivan, 679 N.W.2d 19, 28 (Iowa 2004), which requires the prosecutor to articulate "a valid, noncharacter theory of admissibility," and to Harris v. State, 324 Md. 490, 500, 597 A.2d 956 (1991), which requires prior conviction evidence to be "substantially relevant . . . ." Because those authorities conflict with our well settled law on the admissibility of prior conviction evidence, we must decline the defendant's invitation to adopt a different standard. We next turn to the standard of review that applies to the defendant's claim. "The trial court's ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility . of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005). In the present case, the court initially ruled that evidence of the defendant's prior conviction would be more prejudicial than probative. The court admitted the evidence only after the defendant had put his intent in issue by offering Wilson's testimony. The court then instructed the juiy to consider the evidence only for the purpose of determining the defendant's intent. The defendant has failed to show that the court's ruling was unjust or that it substantially prejudiced him. We therefore conclude that the court did not abuse its discretion. II The defendant next claims that the court improperly (1) instructed the jury on the meaning of reasonable doubt and (2) refused his request for an additional instruction on reasonable doubt. We disagree with both parts of the defendant's claim. A The defendant challenges the following portion of the court's instructions regarding the meaning of reasonable doubt: "It is not a doubt suggested by counsel, which is not warranted by the evidence. . . . Proof beyond a reasonable doubt does not mean proof beyond all reasonable doubt . . . ," "When a challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied . is whether the charge, consid ered as a whole, presents the case to the jury so that no injustice will result." (Citation omitted; internal quotation marks omitted.) State v. Straub, 90 Conn. App. 147, 152-53, 877 A.2d 866, cert. denied, 275 Conn. 927, 883 A.2d 1252 (2005). As to the court's instruction that a reasonable doubt "is not a doubt suggested by counsel, which is not warranted by the evidence," our Supreme Court previously has determined that that language is not constitutionally infirm. See State v. Betances, 265 Conn. 493, 508-11, 828 A.2d 1248 (2003). As to the court's instruction that "[pjroof beyond a reasonable doubt does not mean proof beyond all reasonable doubt"-, (emphasis added); the court should have stated that "[pjroof beyond a reasonable doubt does not mean proof beyond all possible doubt" or that "[pjroof beyond a reasonable doubt does not mean proof beyond all doubt." See D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) § 2.9 and 2.10, pp. 80, 99. In directing us to the court's inaccurate statement, however, the defendant has critically dissected the charge and artificially isolated the inaccuracy from the overall charge. The proper standard of review requires the charge to be considered as a whole. On the basis of our review of the entire charge, we conclude that it is not reasonably possible that the jury was misled by the court's isolated inaccuracy. B The defendant also claims that the court improperly refused his request to instruct the jury that "before you may reach any verdict of guilty, each of you must reach a subjective state of near certainty of the defendant's guilt." The defendant requested that instruction after the court already had instructed the jury that "[pjroof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion." Our Supreme Court previously has determined that the language contained in the defendant's proposed instruction is not necessary when the court gives a standard charge on reasonable doubt. See State v. Ryerson, 201 Conn. 333, 341-44, 514 A.2d 337 (1986). Furthermore, "although a legally accurate and properly submitted request to charge should be accepted by the trial court, the refusal to do so is not a ground for reversal if the substance of the request is adequately conveyed to the jury in other portions of the charge." Id., 343. Because the instruction that the defendant requested was essentially the same as the instruction that the court already had given, we determine that the court acted properly in declining to give the defendant's proposed instruction. See State v. Straub, supra, 90 Conn. App. 153. The judgment is affirmed. In this opinion the other judges concurred. Defense counsel clearly preserved the claim on evidentiary grounds. He also appears to have preserved the claim on constitutional grounds by objecting that "the jury would . . . look at [the defendant] as a drug dealer" and that admitting evidence of the conviction "takes away his ability to present a defense . . . ." Even if those objections did not preserve the claim properly on constitutional grounds, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), would be similarly unavailing because that case provides that "[t]he defendant . . . bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label. . . . [0]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed." (Citations omitted.) Id., 240-41. Furthermore, as an intermediate appellate court, we lack the authority to overrule our Supreme Court's precedent regarding the admissibility of evidence. See, e.g., State v. Henry, 76 Conn. App. 515, 548, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003). The defendant did not object to those instructions at trial and now seeks Golding review: "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Goldring, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant's claim pursuant to Golding because there is an adequate record, and "a claim of instructional error regarding the burden of proof is of constitutional magnitude." State v. Howard, 88 Conn. App. 404, 429, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005).

Opinion PER CURIAM. The defendant, Norberto Cales, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136, criminal trespass in the second degree in violation of General Statutes § 53a-108 and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The sole issue raised on appeal is whether the trial court inadequately instructed the jury on the defendant's theory of defense. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On November 4, 2003, the victim, Christopher Gonzales, returned home from work at approximately 4 p.m. At approximately 7 p.m., he heard the defendant knock on the door. The victim asked who was there, and the defendant replied that it was the police. The victim opened the door, and the defendant stated that he needed $20 because a couple of guys wanted to "beat him up" because he owed them money. The victim stated that he did not have any money for the defendant. The defendant pushed the victim aside and entered the victim's apartment. The defendant grabbed numerous items from the victim's apartment. The victim struggled with the defendant to wrestle the items back. The victim then noticed a metallic object in the defendant's shirt pocket that appeared to be a knife. The defendant punched the victim on the right side of his face and dazed the victim. The defendant took the victim's cellular telephone and charger and ran from the apartment. The victim subsequently went to a neighbor's apartment to call the police. The police arrived at the scene and took a description of the defendant, whom the victim had known for six or seven years, and relayed that description over the police radio. A few minutes later, the police officers at the scene received a call that other officers had detained the defendant on the basis of the victim's description. The police officers took the victim to the location where the defendant was being held. The victim identified him as the assail ant. The officers recovered the victim's cellular telephone and charger from the defendant. During the defendant's trial testimony, he admitted that he took the cellular telephone and charger from the victim's apartment. He claimed, however, that he took the items because the victim owed him money. The defendant testified that he would have returned the items to the victim once he was paid. The defendant was convicted and the court imposed a sentence of five years, execution suspended after three and one-half years, with three years of probation, on the count of robbery in the third degree, six months on the count of criminal trespass in the second degree and one year on the count of assault in the third degree. The court ordered the sentences to run concurrently, for a total effective sentence of five years execution suspended after three and one-half years, with three years of probation. Additional facts will be set forth as necessary. The defendant claims that the court improperly instructed the jury on his theory of defense. We begin with our standard of review. "A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . . When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . we will not view the instructions as improper." (Internal quotation marks omitted.) Kramer v. Petisi, 91 Conn. App. 26, 32, 879 A.2d 526, cert. granted on other grounds, 276 Conn. 916, 888 A.2d 84 (2005); see also State v. Berger, 249 Conn. 218, 234-36, 733 A.2d 156 (1999). The defendant's request to charge placed an emphasis on the intent necessary for a conviction of robbery in the third degree. Specifically, the defendant requested that the charge include the requirements of an intent to deprive another of property permanently. Because the defendant admitted taking the cellular telephone and charger from the victim, the defense concerned the issue of intent. "When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate. . [A] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ." (Citations omitted; internal quotation marks omitted.) State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). The defendant claims that, on the basis of his theory of defense, he did not possess the requisite intent to be convicted of robbery in the third degree and that the juiy instructions "did not meaningfully convey to the triers of fact [his] defense." A claim that the defendant lacked the requisite intent has been recognized as a defense to larceny. See State v. Sawyer, 95 Conn. 34, 36-38, 110 A. 461 (1920). As previously stated, in reviewing a court's jury instructions, we review the charge as a whole to determine whether it fairly presented the case to the jury. The court began its instructions with a general definition of intent. The court proceeded to define the specific crimes charged. In defining robbery for the jury, the court instructed on the intent necessary to commit a larceny. The court then instructed the jury on circum stances that would negate the requisite intent to prove larceny. The court stated: "Again, I refer back to the definition of intent, which I gave you before and which you are to apply . at this juncture. "Of course, if someone took property honestly, although mistakenly believing that he had the right to do so, you would not be able to find that he had the requisite intent on the element of larceny. Also, if someone took property honestly, believing it was abandoned, for example, the necessary intent would be lacking. Also . if one took property intending to return it to the true owner, and if you believe that he had permission to take it, the wrongful intention of depriving the person of that property cannot be proven. It is essential, therefore, that the state prove beyond a reasonable doubt that the defendant had the unlawful purpose or intention in his mind at the .time he took the property." The court's instructions were accurate in the law and included material portions of the defendant's request to charge on the requisite intent and the circumstances that would negate the required intent. See State v. Campfield, 44 Conn. App. 6, 24-25, 687 A.2d 903 (1996), cert. denied, 240 Conn. 916, 692 A.2d 814, cert. denied, 522 U.S. 823, 118 S. Ct. 81, 139 L. Ed. 2d 39 (1997). We conclude, therefore, that the court's instructions adequately presented the relevant law to the jury. Specifically, we conclude that the instructions regarding intent were sufficient to convey the defendant's theory of defense, correct in law, adapted to the issues and sufficient for the guidance of the jury. The judgment is affirmed. The defendant requested the court to charge the jury as follows: "I have already defined intent for you previously in my instructions, and you should apply that definition here in connection with your considerations of whether the defendant intended to deprive another of property by wrongfully taking, obtaining or withholding such property from an owner. The state must prove beyond a reasonable doubt that the defendant intended to appropriate it to himself or to a third person. "Either 'intent to deprive' or 'intent to appropriate' must be found . Remember, 'to intend to deprive another of property' means to intend to withhold or keep or cause it to be withheld from another permanently or for so long a period or under such circumstances that the major portion of its value is lost to that person. . . . "In recalling my instruction to you on [ijntent, you should consider the following in connection with this. If someone took property honestly, although mistakenly believing that he had a right to do so, you cannot find that he had the required intent of this element of larceny. Also, if someone took property intending to return it to the true owner, the wrongful intention of depriving a person of property cannot be proven. "It is essential, therefore, that the state prove beyond a reasonable doubt that the defendant had an unlawful purpose or intention in his mind at the time he took the property." (Citation omitted; emphasis in original.) The court's instructions were as follows: "The word intent, what does it mean and how do you determine it? Intent relates to the condition of the mind of the person who committed the act, his purpose in doing an act. As defined by our statute, a person acts intentionally with respect to a result when his conscious objective is to cause such result. "Now, what a person's purpose or intention or knowledge has been is usually a matter to be determined by you by inference. No one is able to testify that he looked into another's mind and saw there a certain purpose or intention. The only way that a jury can ordinarily determine what a person's purpose, knowledge or intent was . is by determining what the person's conduct was and what were the circumstances surrounding that conduct." The court stated: "A person commits a larceny when, with the intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner. To prove a larceny, the following elements must be proven by the state beyond a reasonable doubt. . . . Two, that at the time the defendant obtained such properly, he intended to deprive the owner of the property or 1o appropriate such property to himself or to a third person." The court further defined intent as follows: "The state must prove beyond a reasonable doubt that at the time the defendant wrongfully took, obtained or withheld property from an owner, he intended to deprive the owner or some other person of it or that he intended to appropriate [it] to himself or to a third person. To intend to deprive another of property means to intend to withhold or to keep or to cause it to be withheld from another person for so long a period of time and [under] such circumstance that a major portion of its value is lost to that person. "In other words, the state must prove . . . that the defendant took the property for the purpose of keeping and using it permanently or virtually permanently, or disposing of the property in such a way that there was a permanent or virtual permanent loss of the property to the owner."

Opinion DUPONT, J. The plaintiff father, Mirmasood Reza, appeals from the trial court's judgment, dated February 4, 2005, granting the motion filed by the defendant mother, Shekiba Leyasi, to modify custody and support orders entered on October 22, 2003. On appeal, the plaintiff claims that the court improperly applied the best interest of the child standard, rather than applying the standard set forth in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), in determining that the minor child should remain in Massachusetts with her mother. We disagree and affirm the judgment of the trial court. The parties were married in Pakistan on August 2, 1990. In December, 1990, the defendant came to the United States with her mother, sister and brother. One year later, the plaintiff joined the defendant and her family in New Haven. On April 6,1999, a child was bom to the parties. The parties resided together with the child until the defendant left the family home on April 16,2002. The defendant, with the child, went into hiding in Massachusetts. In April, 2002, the plaintiff filed a complaint seeking dissolution of the marriage and custody of the minor child. On October 22,2003, the court rendered judgment for dissolution of the marriage by default and awarded custody of the missing minor child to the plaintiff. On November 10, 2003, the plaintiff, after going to great lengths to locate the defendant and their child, discovered that they were living in North Quincy, Massachusetts. The plaintiff attempted to register the Connecticut dissolution in Massachusetts and personally served the defendant with the order of dissolution and custody at her home in North Quincy. On December 3,2003, and February 2,2004, the defendant filed motions to open the judgment of dissolution, claiming that the court had no jurisdiction to determine her rights to property or to custody of their daughter because she did not know that a "divorce was pending." The court denied the defendant's motions to open on May 24, 2004. Subsequently, the parties agreed that the motions to open the dissolution should have been treated as motions to modify the custody and support orders entered on October 22, 2003, when the dissolution of marriage judgment was rendered. Following a contested hearing on November 1 and 22, 2004, the court, treating the motions to open as motions to modify, made various findings and rendered judgment pursuant thereto on February 4, 2005. This appeal concerns those findings and conclusions, as they relate to custody of the child. The court found that although either parent would provide a caring home, forcing the defendant back to Connecticut with the minor child or ordering the child to reside with the plaintiff would be such a disruption in the child's life that it would not be in the child's best interest. Accordingly, the court ordered that the parties share joint legal custody, with the defendant to have physical custody of the child. On February 14, 2005, the plaintiff filed a motion for articulation requesting the court to explain whether it considered Ireland. The court denied the motion on March 10, 2005. On March 30, 2005, the plaintiff filed this appeal. Before addressing the merits of the plaintiffs claim on appeal, we set forth our standard of review in domestic relations cases. "An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court's ruling on a modification may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law." (Citation omitted; internal quotation marks omitted.) Williams v. Williams, 276 Conn. 491, 496, 886 A.2d 817 (2005). In Ireland, the Supreme Court enunciated a decisional pathway and substantive criteria to guide trial courts in deciding difficult relocation cases. Finding that the trial court had improperly placed the entire burden on the relocating custodial parent to prove that relocation would be in the best interest of the child, the Supreme Court determined the appropriate burden of proof. That standard would place on the custodial parent, seeking permission to relocate out of state with the child, the initial burden of demonstrating, by a preponderance of the evidence, that (1) the relocation was for a legitimate purpose and (2) the proposed location was reasonable in light of that purpose. Once the custodial parent makes such a prima facie showing, the burden shifts to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation would not be in best interest of the child. See Oliver v. Oliver, 85 Conn. App. 57, 62, 855 A.2d 1022 (2004). "In addition to that decisional schema, the court also adopted substantive criteria for determining whether relocation comports with a child's best interest. . . . In doing so, the court adopted those factors set forth by the New York Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). As stated by the court in Ireland, those factors are: [E]ach parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements." (Internal quotation marks omitted.) Oliver v. Oliver, supra, 85 Conn. App. 62-63. Ireland and its progeny serve as an aid for courts analyzing and establishing the burden of proof in post-judgment relocation cases involving a parent with physical custody of a minor child. The present appeal does not involve postjudgment relocation. Prior to the plaintiffs filing the complaint, seeking dissolution of the marriage, the defendant had already absconded from the marital home with the parties' minor child and relocated in North Quincy. Until the present time, the minor child has lived with the defendant in North Quincy. Although the default judgment of October 22, 2003, granted sole custody to the plaintiff, the court subsequently entered temporary orders in December, 2003, which ordered that the parties share joint legal custody of the child with physical custody and primary residence remaining with the defendant. The court, in its orders of February 4, 2005, from which the plaintiff appeals, ordered that the parties continue to share joint legal custody with physical custody and primary residence, again, remaining with the defendant. Despite the plaintiffs efforts to describe this case as a postdissolution relocation case, the facts demonstrate that no relocation was sought after a dissolution judgment had been rendered. As a result, Ireland is not controlling, and the basic question is not whether a party should be allowed to relocate, but whether the joint custody order, with physical custody in the defendant, dated December, 2003, and February 4, 2005, should be disturbed. "The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. . In determining what is in the best interests of the child, the court is vested with a broad discretion." (Citations omitted; internal quotation marks omitted.) Ford v. Ford, 68 Conn. App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). Here, the court utilized the best interest of the child test and determined that it was in the child's best interest to remain in the physical custody of the defendant. The plaintiff raises the concern that the outcome in this case is repugnant to any ideals of fundamental fairness and justice because the defendant is seemingly rewarded for her wrongful actions. We recognize that, if the best interests of all children are to be served, the abduction of children to avoid the effect of possible future custody decrees must be deterred. We also recognize, however, that the imperative to discourage abduction must, when necessary, be secondary to the paramount concern in all custody matters, namely, the best interest of the child. Otherwise, bad behavior might be punished at the expense of a child's welfare. The well-being of the child rather than the punishment or reward of the parent ought to guide every custody case whether interstate or domestic. The plaintiff had every opportunity to argue that, while the child's short-term stability would be disrupted by a change in physical custody, the child's long-term stability would be undermined by the defendant's behavior in leaving the marital home with the child, hiding the child from the plaintiff and threatening to leave North Quincy if the plaintiff relocated to be near the child. In a well reasoned memorandum of decision, the court explained that it weighed all the facts and concluded that it would not be in the best interest of the minor child to force the defendant back to Connecticut with the child or to award physical custody to the plaintiff. The primary principle of the child's best interest is never easily applied once the litigants themselves have succeeded in creating a disruption in custody. The courts can only patch and repair, hoping to reduce the har m to a minimum. The judgment is affirmed. In this opinion the other judges concurred. The defendant alleged that the plaintiff physically and sexually abused her. The defendant also alleged that she fled the marital home because the plaintiff threatened to take their child to Afghanistan. The court found that the defendant was not justified in going into hiding from April 16, 2002, until November 10, 2003. The court specifically found that the defendant's claims of abuse and the necessity of relocation were not credible. When the court rendered the default judgment of dissolution, it ordered that no alimony be awarded to either party and awarded all of the joint assets to the plaintiff. The property disposition is not involved in this appeal, nor is the amount of support for the child. The court found that the child has resided with the defendant in Massachusetts continuously since April 16, 2002. At oral argument, the plaintiffs counsel stated that the motion for articulation was improvidently filed. The court recognized the tension between these competing principles when it wrote: "Although the court does not condone the [defendant's] conduct back in April, 2002, when she went into hiding, and the court does not want to be perceived as rewarding the [defendant] for that conduct, this court has to weigh all the facts of this case in deciding what is best for this minor child. In doing so, the court concludes that it would not be in the best interest of the minor child to force the [defendant] back to Connecticut with the minor child or to award the [plaintiff] custody of the minor child. Both parents appear to be caring parents, and there is no indication the child would be at risk with either parent. However, to force the [defendant] back to Connecticut with the minor child or to order the child to reside with [the plaintiff] would be such a disruption in her life that it would not be in her best interest."

Opinion DUPONT, J. The plaintiff, South Sea Company, Inc., appeals from the judgment of the trial court, rendered following the granting of the motion filed by the defendant, Global Turbine Component Technologies, LLC, to dismiss the plaintiffs summary process complaint. The defendant contended in its motion that the court had no jurisdiction because the notice to quit possession served on the defendant on October 29, 2004, for "nonpayment of rent when due" was premature. We reverse the judgment of the trial court. Although the defendant filed a motion to dismiss on the basis of a lack of jurisdiction, neither the parties nor the court treated the case as one involving a dispute as to either personal or subject matter jurisdiction, neither of which was disputed during the hearing held by the court. In this case, the plaintiff landlord served a notice to quit possession on October 29, 2004, giving notice to the defendant tenant to quit possession of the leased premises on or before November 3, 2004, for nonpayment of rent when due and giving notice that if the defendant had not moved from the premises by then, an eviction action may be initiated. A complaint seeking a judgment for immediate possession, dated November 4, 2004, was filed, with a return date of November 15, 2004. The defendant did not answer the complaint but instead filed a motion to dismiss on November 15, 2004, claiming that the notice to quit was ineffective because it was served after the defendant had "tendered rent," and, therefore, the court was "without jurisdiction . . . ." "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn. App. 410, 413, 885 A.2d 768 (2005). "The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005). Although a notice to quit is a condition precedent to instituting a summary process action, no claim is made by either party that any of the statutory requirements for the action were lacking. Compare HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 643, 792 A.2d 165 (2002), and Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). General Statutes § 47a-23 (a) provides in relevant part that "[w]hen the owner or lessor . . . desires to obtain possession . . . and (1) when a . . . lease of such property, whether in writing or by parol, terminates for any of the following reasons . . . (E) nonpayment of rent when due for commercial property . . . such owner or lessor . . . shall give notice to each lessee . to quit possession . at least three days before termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy." General Statutes § 47a-23 (b) provides in relevant part that "[t]he notice shall be in writing substantially in the following form: 'I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trailer is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B.' . . ." There is no question that the plaintiff complied with both subsections of the statute. A motion to dismiss, claiming lack of jurisdiction because of a defective notice, must be denied if there has been compliance with the statute. Cf. Thomas E. Golden Realty Co. v. Society for Savings, 31 Conn. App. 575, 579-80, 626 A.2d 788 (1993). The court decided this matter on the briefs submitted by the parties, the documentary evidence, and the stipulation of facts and the supplementary stipulation of facts signed by both parties. Nowhere are there any allegations that the plaintiffs notice to quit possession was statutorily defective. Nowhere in the court's memorandum of decision is the word "jurisdiction" ever used. Had this case solely involved jurisdiction, the motion to dismiss would, as a matter of law, be denied. The question decided by the court was not one of jurisdiction but whether the plaintiff was entitled to possession because of a nonpayment of rent. Ordinarily, the determination of whether subject matter jurisdiction exists does not permit a court to determine the merits of the case. See Manifold v. Ragaglia, 94 Conn. App. 103, 117, 891 A.2d 106 (2006). The power to hear and determine the particular class of case, which relates to jurisdiction, should not be confused with the way in which the power should be exercised pursuant to a statute. Misinonile v. Misinonile, 190 Conn. 132, 136, 459 A.2d 518 (1983); see also Cilley v. Lamphere, 206 Conn. 6, 15, 535 A.2d 1305 (1988). This case was tried and decided on the basis of the argument of the parties and a stipulation of facts relating to (1) whether a check from the defendant was a tender of "unpaid additional fixed rent" and (2) whether any unpaid rent was due prior to the service of notice to quit possession. Because jurisdiction existed and a remand for further proceedings to allow the defendant to answer the complaint is not warranted in this case, we conclude that we should review the merits of the claims of the parties. The relevant facts and procedural background of this case are included in a stipulation of facts and a supplemental stipulation of facts signed by the plaintiff and the defendant. The parties executed a written lease of commercial property that contained an option to the defendant, as lessee, to renew it for a five year period, an option that the defendant exercised. Under the original terms of the lease, the defendant was to pay a fixed rent of $4300 per month. On January 1, 2004, by letter agreement, the fixed rent was increased to $5188 per month. Under the amended terms of the lease, the fixed rent was due, in advance, on the first day of each month, and the lease was to terminate on July 31, 2004. Under the terms of the option, the fixed rent for the renewal period was to increase on the basis of the consumer price index. On August 18, 2004, and again on October 18,2004, the plaintiff sent letters to the defendant outlining the exact calculation of the increased additional fixed rent. Despite owing additional fixed rent, the defendant sent checks in the amount of $5188, the fixed monthly rent prior to renewal, as payment for the August, September and October, 2004 rent. The defendant also mailed a check, dated October 28, 2004, in the amount of $5188 to the plaintiff in an envelope dated October 29, 2004. The plaintiff returned the check to the defendant on November 2, 2004. A dispute regarding the amount of the additional fixed rent due under the option existed between the parties. This dispute involved two different inteipretations of the lease. The plaintiff contends that the defendant owed an additional fixed rent of $965.05 per month, on the basis of an increase in the cost of living from the beginning of the original lease. According to the defendant, it owed only $668 per month, on the basis of an increase in the cost of living from the first amendment to the lease, dated August 1, 1999. The parties agree that the only rent due and owing from the defendant, as of October 27, 2004, was the additional fixed rent for the months of August, September and October, 2004. As of October 28, 2004, the monthly rent for November was not yet due. They also agree that, as of October 28, 2004, the amount of unpaid additional fixed rent for three months was less than $5188. The check dated October 28,2004, in the amount of $5188, had a notation on it, "PE 10-04." The defendant intended by it to pay the fixed rent due for November, 2004. On October 29, 2004, the plaintiff issued a notice to quit possession and served the notice on the defendant's president. The stipulation of the parties included letters from the defendant's attorney dated November 1, 2004, and November 4, 2004. In the first letter, he stated that arrearages for August, September, October and November "in the amount you have claimed will be paid by November 10, 2004 under separate cover. These payments are being made without prejudice. . . . My client will continue to pay the rent with arrearages as you have calculated. If a court determines that our interpretation is right, we will have a claim for damages. If not, your client will have no damages and, therefore, cannot attempt to evict." The second letter was sent with a check for the disputed amount, namely, $3860, and acknowledged the return of the defendant's check dated October 28, 2004. The stipulation also included letters faxed from the plaintiffs attorney, dated August 18, 2004, and October 18, 2004. The first letter included United States Department of Labor statistics data and outlined the plaintiffs calculation of the amount of rent due as of August 1, 2004. The letter dated October 18, 2004, in pertinent part, stated as follows: "On August 18, 2004, I faxed you a letter concerning the increase in rent. Enclosed is a copy of that letter with confirmation that it was received by you. My client has informed me that, in spite of the notice and your obligation to pay the rent, to date it has not received the additional rent required. Please contact me if you have questions or if there is a problem concerning payment. If not, my client would expect payment of the arrearages forthwith." The defendant's attorney responded to the letter on October 20, 2004, outlining the difference of the parties in the calculation of the additional cost of living increase in the rent due and stating the amount the defendant believed was due. The letter ended with the statement, "There is no problem with the arrearages based on this amount." Despite the latter statement, the next check mailed to the plaintiff was for the usual $5188. The defendant claims that the amount was more than the additional fixed rent for August, September and October, 2004, and that, as of October 29, 2004, there was no rent due because the November rent was not due until November 1, 2004. It is the defendant's claim that on October 29, 2004, when the plaintiff served the notice to quit possession, the defendant was not yet in arrears. The defendant's comptroller testified that "PE 10-04" meant "period ending October '04" and that the check was for November rent. The plaintiffs attorney testified that he received the check dated October 28, 2004, on November 1, 2004, at his office, where the rent was directed to be paid by the lease. The issue is whether the plaintiff, as lessor, could apply the check dated October 28, 2004, to either the basic rent or to the additional fixed rent past due for the months of August, September and October. If the plaintiff had to apply the check to the disputed portion of the rent, at the time the notice to quit possession was served and the November rent was not yet due, then the plaintiff would not be entitled to possession. If, however, the plaintiff was required, or was permitted, to apply it to the November rent, there would be rent due in the disputed amount for the three previous months, and the notice to quit possession would not be premature, entitling the plaintiff to obtain possession. The plaintiff asserts that the check did not constitute a tender of the past due additional fixed rent. In support of its claim, the plaintiff claims that all of the facts and circumstances surrounding the plaintiff's receipt of the check indicate that the defendant directed that it be applied to the November rent obligation and not to the disputed additional fixed rent that had gone unpaid for the months of August, September and October. The plaintiff argues that the subsequent facts confirm this interpretation of the circumstances surrounding its receipt of the check. Specifically, the plaintiff refers to the fact that the defendant's attorney, in a letter dated November 1, 2004, identified the check as "November's rent" and, later, a check was sent on November 4, 2004, specifically to pay the disputed additional fixed rent. The defendant claims that, despite its intention that the check be applied to the November rent obligation, there was nothing that the defendant did and nothing written on the check that would preclude the plaintiff from directing it toward the past due additional fixed rent. Because the parties have stipulated to the facts, we review their claims de novo. "[T]he legal inferences properly to be drawn from [a] definitive stipulation of facts raise questions of law rather than of fact. . . . When an issue on appeal concerns a question of law . . . this court reviews that claim de novo." (Citation omitted; internal quotation marks omitted.) Heise v. Rosow, 62 Conn. App. 275, 278-79, 771 A.2d 190, cert. denied, 256 Conn. 918, 774 A.2d 137 (2001). Where a debtor has two or more obligations to the same creditor, the debtor possesses the power to direct the manner in which his payment is to be applied. See Sagal v. Mann, 89 Conn. 576, 581, 95 A. 6 (1915); 2 Restatement (Second), Contracts § 258 (1) (1981). "The obligor must manifest his direction to the obligee, but he need not manifest it in words. A direction may be inferred from other circumstances, including the performance itself. It is often clear from the nature of the performance that it is to be applied to a particular duty. . In resolving doubts as to whether a direction has been made, the fact that one application is obviously more advantageous to the obligor than another is a factor to be given weight. In extreme situations a particular application may be so disadvantageous to the obligor that it is not permitted to the obligee even absent a contrary direction by the obligor." 2 Restatement (Second), supra, § 258, comment (b). The court found and the parties agree that "[w]hen the defendant sent the check dated October 28, 2004, to the plaintiff, it intended to pay the fixed rent due for November, 2004, but [the check] did not include the disputed " 'additional fixed rent.' " Under the circumstances in this case, the plaintiff could infer only that the defendant was directing the plaintiff to apply the check to the defendant's November rent obligation. Prior to August 1, 2004, the monthly fixed rent due under the lease was $5188. On August 1, 2004, the monthly fixed rent increased by an amount, which is disputed by the parties. Despite agreeing that it had an increased obligation as of August 1, 2004, the defendant sent checks in the amount of $5188 for the purpose of paying rent for the months of August, September and October. The defendant sent a check in the amount of $5188, less than its obligation, for August. The plaintiff notified the defendant of its failure to pay the full August obligation. The defendant, nevertheless, sent a check in the amount of $5188, less than its obligation, for September and October. In October, the plaintiff again notified the defendant of its failure to pay its full obligation for August, September and October. Having not received any of the additional fixed rent under the lease, the plaintiff caused a notice to quit possession to be served on the defendant on October 29, 2004. In an envelope, which was postage stamped October 28, 2004, and date stamped October 29, 2004, the defendant sent a check in the amount of $5188. It was clear from the nature of the defendant's performance that the check was to be applied to its November rent obligation. The facts of this case leave no doubt as to whether the defendant directed the plaintiff to apply the check to a particular obligation. In their course of dealing, the defendant sent checks to the plaintiff in the amount of $5188 in three prior months. The plaintiff applied each check to the defendant's monthly rent obligation. As the months passed, the defendant's debt for additional fixed rent accrued. In two letters, the plaintiff notified the defendant of his failure to pay the additional fixed rent. Despite having information that the plaintiff was applying the checks to the defendant's basic rent obligation for the next month, the defendant failed to give the plaintiff a contrary direction with regard to which obligation his checks should be applied. In fact, the defendant openly admits that it intended that the check be applied to the November rent obligation. Because there is no ambiguity as to whether the defendant directed the plaintiff to apply the October 28, 2004 check to the November rent obligation, we need not consider the fact that applying the check to the disputed additional fixed rent would have been more advantageous to the defendant. Furthermore, the defendant fails to make any argument as to why these circumstances should be considered so extreme that the particular application should not be permitted. The defendant, in fact, argues only that the plaintiff was free to apply the check to the past due additional rents. The law does not permit the creditor to override the direction of the debtor. See Sagal v. Mann, supra, 89 Conn. 581; 2 Restatement (Second), supra, § 258 (1). As such, the check, dated October 28, 2004, did not constitute a tender of the additional fixed rent. Furthermore, the letters of the plaintiff to the defendant made it clear that rent in the disputed amount was due and owing, at least since August 1, 2004, and the defendant acknowledged that an additional sum, albeit disputed, was due and owing as of October 20, 2004. The notice to quit possession was not premature. Because there are no other contested issues of fact, the plaintiff is entitled to judgment as a matter of law. The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff. In this opinion the other judges concurred. "Summary process is a special statutory procedure designed to provide an expeditious remedy. . It enables a landlord to obtain possession of leased premises without the delay associated with common-law actions." (Citation omitted; internal quotation marks omitted.) Western Boot & Clothing Co. v. L'Enfance Magique, Inc., 81 Conn. App. 486, 490, 840 A.2d 574, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004). The expediency aspect of the statute and the principle of judicial economy would be thwarted if we did not review the merits of the case. See Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 332, 880 A.2d 106 (2005); State v. Hamilton, 228 Conn. 234, 246, 636 A.2d 760 (1994); see also Allstate Ins. Co. v. Appell, 39 Conn. Sup. 85, 88, 468 A.2d 949 (1983). This was the last of several amendments to the original lease. Because the prior amendments have no relevance to the present appeal, we need not discuss them. In this opinion, we will refer to the difference between the rent prior to renewal and the rent after the renewal as "additional fixed rent." The check issued by the defendant in the amount of $3860 was in payment of the disputed additional fixed rent for the months of August, September, October and November, 2004. Comment (a) provides in relevant part: "As a general rule, an obligor has the power to direct the obligee's application of a payment or other performance. The direction is effective immediately on the obligee's acceptance of the performance, the performance is considered to be applied as directed, and the obligor's duty is discharged accordingly. . . . The obligor can effectively direct that a performance be applied to a duty that is not matured, to one that is unsecured, and even to one that is unenforceable on grounds of public policy." 2 Restatement (Second), supra, § 258, comment (a). We note that the rectitude of this inference was later supported by the letter from the defendant's attorney dated November 1, 2004, as well as the papers filed by the defendant in the trial court and in this court. In this letter, the defendant's attorney stated that the check received by the plaintiff was for November rent and that a check for the disputed additional rent for August, September, October and November would be forthcoming. In its court filings, the defendant admits that it intended that the check be applied to its November rent obligation. In a letter dated October 20, 2004, the defendant's attorney admitted that the defendant was responsible for arrearages, but disputed the amount of those arrearages. The defendant claimed that the option rent increase related back to 1999 rather than 1996, resulting in a monthly rent of $5856 instead of the $6152.05 monthly rent claimed by the plaintiff. Despite being aware that it had past due additional fixed rents, at no time did the defendant claim that the plaintiff applied the prior checks to the rental obligation for the next month inappropriately.

Opinion VERTEFEUILLE, J. The plaintiff, Vertex, Inc., appeals from the trial court's judgment in favor of the defendant, the city of Waterbury. The plaintiff claims that the trial court improperly dismissed, sua sponte, two counts of its complaint just before the trial was to begin, and incorrectly instructed the jury with regard to the third count, which alleged unjust enrichment. We agree with the plaintiff, and, accordingly, we reverse the judgment of the trial court. The record reveals the following factual and procedural history. In March, 1999, the plaintiff sent a proposal letter to the defendant offering to perform specific services to prepare the defendant's computer systems for the year 2000 problem. The defendant accepted the plaintiffs proposal and the parties entered into a written contract dated June 7, 1999, under which the plaintiff would install a certain software program on the defendant's computers and perform the tasks outlined in the plaintiffs March, 1999 proposal. Despite the fact that the written contract was not executed until June 7, 1999, the plaintiff commenced work in March, 1999. On July 1, 1999, the plaintiff submitted a proposal for additional work to remedy additional year 2000 problems that it had identified during its first three months of work for the defendant. The plaintiff alleges that the defendant accepted its July, 1999 proposal, that it performed this additional work, and that the defendant refused to pay for it. The defendant denies that it accepted the plaintiffs July, 1999 proposal, and contends that the additional work the plaintiff claims to have performed was within the scope of the earlier written contract. Thus, the defendant denies that it owes the plaintiff any additional money. The plaintiff brought the present action against the defendant to recover for the services, outlined in the July, 1999 proposal, that it allegedly performed for the defendant. Specifically, the plaintiff, in its complaint, alleged the following causes of action: (1) breach of contract; (2) estoppel; and (3) unjust enrichment. On approximately February 20, 2004, after a jury had been selected, the trial court, in a chambers conference with counsel, ordered the parties to submit pretrial briefs by February 24, 2004, on the legal theories of the three causes of action alleged in the complaint. Both parties complied with the trial court's order and submitted briefs on February 24, 2004. On the following day, the trial court issued a memorandum of decision in which it dismissed, sua sponte, the first two counts of the plaintiffs complaint and allowed the plaintiff to proceed to trial only on the unjust enrichment count. The case was tried to the jury and, at the close of the plaintiffs case, the defendant moved for a directed verdict. During oral argument on the defendant's motion, the trial court invited both parties to address the two counts that it previously had dismissed. The trial court thereafter granted the defendant's motion for a directed verdict on the first two counts, but denied the motion with respect to the plaintiffs unjust enrichment count. The unjust enrichment count was then submitted to the jury, but the trial court declared a mistrial when the jury was unable to reach a verdict. The case was retried before a jury in June, 2004, with the same judge presiding. Like the earlier trial, the case was limited to the plaintiffs unjust enrichment count because the trial court's earlier ruling dismissing the plaintiffs first two counts remained in effect. At the conclusion of the second trial, the jury returned a general verdict in favor of the defendant. Subsequently, the plaintiff made a motion to set aside the verdict and for a new trial, claiming that the trial court improperly had dismissed the first two counts of its complaint and incorrectly had instructed the jury with regard to the third count. The trial court denied the plaintiffs motion and rendered judgment for the defendant. This appeal followed. Additional facts will be set forth as necessary. On appeal, the plaintiff argues that the trial court improperly dismissed its breach of contract and estoppel counts because the defendant never filed any dispositive motion, such as a motion to strike or a motion for summary judgment, and neither party asked the court to determine the legal sufficiency of the plaintiffs claims. In addition, the plaintiff claims that the trial court improperly instructed the jury that, in order to prevail on its unjust enrichment claim, the plaintiff needed to prove the existence of an implied in fact contract. In response, the defendant claims that the trial court properly dismissed the plaintiffs breach of contract and estoppel counts under its inherent trial management authority. Additionally, the defendant argues that the trial court's instruction on the unjust enrichment count was proper because this count is really a claim for quantum meruit, and in order to prevail on such a claim, the plaintiff must establish that there was an implied in fact contract. Alternatively, the defendant contends that the trial court's instruction was correct because the plaintiff had to establish that there was an express or implied in fact contract in order to prevail on its claim against a municipality. We agree with the plaintiff. I The first issue on appeal requires us to determine whether the trial court had the authority to determine dispositive questions of law that did not implicate the trial court's subject matter jurisdiction when neither party filed a motion or otherwise requested the court to make such a determination. We begin with the applicable standard of review. "We review case management decisions for abuse of discretion, giving [trial] courts wide latitude. . A party adversely affected by a [trial] court's case management decision thus bears a formidable burden in seeking reversal." (Internal quotation marks omitted.) Krevis v. Bridgeport, 262 Conn. 813, 818, 817 A.2d 628 (2003). "The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases." Id., 819. A trial court abuses its discretion when it exercises its case management authority in a manner that is arbitrary, wilful, or without "regard to what is right and equitable under the circumstances and the law . . . ." (Internal quotation marks omitted.) Id. We initially set forth two additional facts relevant to this issue. First, the trial court, in its memorandum of decision, concluded on the basis of the parties' pretrial briefs that the first and second counts of the plaintiffs complaint were without legal merit. Second, in its memorandum of decision, the trial court recognized that "[n]o motion to strike or motion for summary judgment has been filed . . . ." Thus, it is clear from the record that no motion was pending when the trial court dismissed the two counts of the complaint for legal insufficiency. We note that due to the adversarial nature of our judicial system, "[t]he court's function is generally limited to adjudicating the issues raised by the parties on the proof they have presented and applying appropriate procedural sanctions on motion of a party." (Emphasis added.) F. James, G. Hazard & J. Leubsdorf, Civil Procedure (5th Ed. 2001) § 1.2, p. 4. The parties may, under our rules of practice, challenge the legal sufficiency of a claim at two points prior to the commencement of trial. First, a party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike. Practice Book § 10-39. Second, a party may move for summary judgment and request the trial court to render judgment in its favor if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Practice Book § 17-44, 17-49. In both instances, the rules of practice require a party to file a written motion to trigger the trial court's determination of a dispositive question of law. The rules of practice do not provide the trial court with authority to determine dispositive questions of law in the absence of such a motion. In two recent decisions, we considered the boundaries of a trial court's discretion to determine dispositive questions of law on the eve of trial and in a manner inconsistent with the procedures established in the rales of practice. First, in Krevis v. Bridgeport, supra, 262 Conn. 815, the trial court, on the day jury selection was to commence, heard oral arguments on the defendant's motion in limine to prohibit references to punitive damages and attorney's fees because of the defendant's governmental immunity as a municipality. During the course of the oral argument, the defendant argued that the plaintiffs claim was barred by the governmental immunity statute. Id., 820. The trial court granted the defendant's motion in limine because it determined that the governmental immunity statute applied. Id. The court emphasized that it was not ruling on the legal validity of the plaintiffs claim, but noted that it would be willing to expand its ruling to consider this issue. Id. After a recess, the plaintiff asked the court to rale on the legal sufficiency of its claim. Id., 821. The parties, at defense counsel's suggestion, agreed that the plaintiffs request should be treated as an oral motion for summary judgment. Id. Thereafter, the trial court rendered judgment in favor of the defendant. Id., 821-22. On appeal, we concluded that, by deciding "a dispositive question of law that the parties . . . [submitted] to the court orally, without a written motion or compliance with certain applicable provisions of the Practice Book"; id., 818; the trial court did not abuse its discretion. Id., 824. We determined that, although the plaintiffs oral motion for summary judgment violated the rales of practice, the plaintiffs counsel knowingly had waived the procedural requirements for a motion for summary judgment. Id.; cf. Mamudovski v. BIC Corp., 78 Conn. App. 715, 721-25, 829 A.2d 47 (2003) (trial court abused its discretion when it ruled on defendant's oral motion for summary judgment in violation of procedural requirements of rules of practice because plaintiff objected to this procedure), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004). We also considered the scope of atrial court's discretion to consider dispositive questions of law outside the boundaries of the rules of practice in McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179, 851 A.2d 1154 (2004). In that case, the trial court at first denied the defendant's request for permission to file a motion for summary judgment after the case had been assigned for trial, but it reconsidered its decision during jury selection. Id., 186-87. After a recess to give the parties time to review the briefs previously filed, the parties argued the defendant's motion for summary judgment and the trial court made a preliminary ruling granting the defendant's motion on all but one of the counts of the plaintiffs complaint. Id., 188-91. During argument on the motion, the trial court granted the plaintiffs' request to present to the court written opposition to the defendant's motion by the next morning. Id., 190. The court reconvened the hearing the next morning, and the plaintiffs offered additional argument on the lone count on which the trial court had not issued a preliminary ruling. Id., 191. Thereafter, the trial court rendered judgment for the defendant on all counts. Id. On appeal, we rejected the plaintiffs' claim that the trial court could not sua sponte raise and decide a motion for summary judgment in violation of the rules of practice. Id., 192-93. We concluded in McNamara that, under our decision in Krevis, the trial court has discretion to decide a dispositive question of law that previously had been presented to it, without complying with the procedural provisions in the rules of practice. Id., 193. We also concluded that the trial court did not abuse its discretion on the grounds that it did not give the plaintiffs a fair opportunity to respond to the defendant's motion. Id. First, we observed that the plaintiffs did not voice any objection to the trial court's procedure either during or after the proceedings on the motion for summary judgment. Id., 194. Second, we noted that the plaintiffs agreed to decide the legal questions in this manner. The plaintiffs' counsel stated that "if the case were destined to be subject to a directed verdict for the defendant, 'then we might as well save it and litigate the issue' on appeal." Id. Finally, we reasoned that the plaintiffs had a fair opportunity to respond to the motion because the plaintiffs' counsel stated that he was ready to argue the defendant's motion, the trial court gave the plaintiffs an opportunity to submit a written opposition to the defendant's motion, and the plaintiffs had an opportunity to challenge the trial court's preliminary rulings when the hearing reconvened the next morning. Id., 194-96. Our decisions in Krevis and McNamara affirming the exercise of the trial court's discretion under its case management authority to determine dispositive questions of law on the eve of trial outside the procedural provisions of the rules of practice readily are distinguishable from the facts of the present case in several critical respects. First, in both of these cases, the dispositive question of law was raised in a written motion filed by one of the parties. In McNamara, the defendant's motion for summary judgment had been filed previously. In Krevis, the issue of governmental immunity was raised by the defendant's motion in limine. Second, the parties in both cases agreed that the trial court could decide the question of law despite noncompliance with the rules of practice. Finally, the trial court provided the nonmoving party, the plaintiffs in both cases, with a reasonable opportunity to respond to the dispositive motion. In the present case, none of these important facts was present. First, as noted previously herein, the trial court in its memorandum of decision acknowledged that no motion to strike or motion for summary judgment had been filed. The pretrial briefs that led to the dismissal of two counts of the complaint were filed on the trial judge's order and not at the initiative of either party. Second, the record does not demonstrate that the plaintiff knowingly waived the applicable procedures under the rules of practice for dispositive motions. Rather, the record shows that the plaintiff expressed its objection to the trial court's procedure in dismissing its first two counts by filing a notice of intent to appeal the day after the trial court issued its memorandum of decision and by filing a motion to set aside the verdict and for a new trial asserting that the trial court should not have dismissed the first two counts in the manner that it did. Finally, the record does not reveal that the plaintiff had a fair opportunity to respond to the potential dismissal of claims because it lacked notice that the trial court intended to use the parties' pretrial briefs to rule on the legal sufficiency of its claims. See Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996) (even where court may render summary judgment sua sponte, it must "first [give] the targeted party appro priate notice and a chance to present its evidence on the essential elements of the claim or defense"). While neither party could recall definitively during oral argument in this court whether the trial court explained its objective in having the parties submit pretrial briefs, the trial court's memorandum of decision states that it "requested the parties to brief in advance of the imminent trial the legal theories on which this case has been brought." Accordingly, it does not appear that the plaintiff had notice that the trial court might dismiss its claims based on the pretrial briefs. We conclude that, on these facts, the trial court abused its discretion in dismissing the first two counts of the plaintiffs complaint. The trial court's broad case management authority simply does not extend so far as to permit the court to: (1) initiate the pretrial disposition of a claim based on the court's perception of its legal insufficiency; and (2) proceed to consider such disposition (a) in disregard of the procedural protections provided in our rules of practice without the agreement of counsel and (b) without notice to the parties and a reasonable opportunity for the plaintiff to oppose the disposition of its claims. The defendant argues that the trial court had ample authority to dismiss sua sponte the plaintiffs first two counts under Practice Book § 15-1 and 16-9, and under General Statutes § 52-216. We disagree. Both the cited rules of practice and § 52-216 stand solely for the general proposition that, at trial, issues of law should be tried before factual issues and that the trial court must decide all issues of law. None of these sections authorizes the trial court to act as it did in the present case, determining, sua sponte, dispositive legal questions without a motion pending, without the plaintiffs waiver of applicable procedural rules of practice, and without giving the plaintiff a fair opportunity to respond. II The plaintiff next claims that the trial court improperly instructed the jury that it had to prove that there was an implied in fact contract to prevail on its claim for unjust enrichment. We agree. The following additional procedural history is relevant to the resolution of this issue. The plaintiff submitted a request to charge that sought to have the jury instructed as follows: "To find for the plaintiff under a theory of unjust enrichment or quantum meruit, you must find that the plaintiff has provided services to the defendant, that the defendant benefited from these services, that the defendant unjustly did not pay for that benefit and that the defendant's failure to pay was to the plaintiffs detriment." The trial court did not adopt the plaintiffs requested juiy charge, but instead instructed the jury as follows: "This is a case alleging a breach of implied contract. The existence of an implied contract is a question of fact to be determined by you on the basis of all the evidence. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. "The contract terms may be expressed in words, or may be inferred or implied from the circumstances. When a contract is inferred or implied from the circumstances, it is called an implied contract. A true implied contract is one which can be inferred from the conduct of the parties although not expressed in words. "There may be an implied contract for services here, as I told you, between the parties; so I will explain to you as clearly as I can what the plaintiff must have proved in order to recover on that ground. In the first place, the plaintiff must prove that it rendered the services in the expectation that it would be paid by the [defendant]. The services must have been more than a mere gratuitous accommodation, more than things done with the hope that some time in the future the defendant would reciprocate. The services must have been rendered with the intention in the mind of the plaintiff they were to be paid for by the defendant in recognition of a legal obligation, thus creating a debt. "In order for the plaintiff to recover on an implied contract it must prove that it rendered the services on the expectation that the [defendant] would pay for them, and it must also prove to you by a fair preponderance of the evidence one of these situations: first, that the [defendant] intended to pay for them; or, second, that the [defendant] accepted them knowing that the plaintiff expected to be paid for them, or under circumstances that a reasonable person in the situation would have known of that expectation; or third, that the words or conduct of the [defendant] were such that a reasonable person in the situation of the plaintiff would have been led to believe that the [defendant] expected to pay for the services." "Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 142-43, 757 A.2d 516 (2000). We conclude that the trial court's instruction in the present case was improper because the trial court failed to instruct the jury on the correct elements of the plaintiffs claim for unjust enrichment, and, instead, the court instructed the juiy with regard to an implied in fact contract. "Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recoveiy for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994). The term "implied contract," which the trial court used in its instruction to the jury, often leads to confusion because it can refer to an implied in fact contract or to an implied in law contract. An implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties. See Janusauskas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003). On the other hand, an implied in law contract is "not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . It is based on equitable principles to operate whenever justice requires compensation to be made." (Internal quotation marks omitted.) Yale Diagnostic Radiology v. Estate of Fountain, 267 Conn. 351, 359, 838 A.2d 179 (2004). An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party. See id., 360. Accordingly, an implied in law contract is another name for a claim for unjust enrichment. See Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 511, 735 A.2d 813 (1999) (observing that claim for unjust enrichment is sometimes denominated implied in law claim or quasi-contract claim); see also 66 Am. Jur. 2d 604, Restitution and Implied Contracts § 8 (2001) ("[u]njust enrichment is also referred to as . a contract implied in law"). In the present case, the trial court's instruction set forth the legal test for an implied in fact contract because it instructed the jury that the plaintiff must prove that it rendered services with the reasonable expectation that the defendant would pay for the services and that the defendant accepted those services in a manner that reasonably would lead the plaintiff to believe that the defendant intended to pay for the services. See Janusauskas v. Fichman, supra, 264 Conn. 804-805 (implied in fact contract "arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services"). Despite the plaintiffs proper request to charge, the trial court in the present case failed to instruct the jury on any of the elements that the plaintiff was required to prove to prevail on its claim of unjust enrichment. Thus, the trial court's instruction was not correct legally. We further conclude that the trial court's improper instruction was harmful. "An instructional impropriety is harmful if it is likely that it affected the verdict." Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 448, 782 A.2d 87 (2001). The trial court's instruction on a legal theory that the plaintiff did not allege and that does not share any of the distinct elements of the plaintiffs alleged unjust enrichment claim likely affected the jury's verdict, which was adverse to the plaintiff. The plaintiff therefore is entitled to a new trial on this count. The defendant argues that the trial court's instructions were proper because, based on the evidence adduced at trial, the plaintiffs claim was more accurately a claim of quantum meruit and the trial court's instruction properly reflected the legal test for such a claim. We disagree. First, the defendant cites no legal authority, and we are aware of none, supporting the contention that the trial court properly could have instructed the jury on a legal theory that the plaintiff did not plead. Further, even if the plaintiff sought to recover under the theory of quantum meruit, the trial court's instruction would have been incorrect in law because quantum meruit is an equitable theory of recovery that "does not depend upon the existence of a contract, either express or implied in fact." Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001), on appeal after remand, 80 Conn. App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). The defendant also argues that the trial court's instructions are supported by this court's statement in Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 348 A.2d 651 (1974), that recovery against a municipality is limited to when a law authorizes such a recovery or under a claim of breach of contract. We disagree. In that case, this court stated that "[o]ne who demands payment of a claim against a municipality must show some law authorizing it, or that it arises from some contract, express or implied, which is sanctioned by law." Id., 122-23. The defendant misconstrues this statement as a prohibition on private parties recovering against a municipality under an unjust enrichment theory. Indeed, this court in Windham Community Memorial Hospital went on to state "that a municipal corporation may become hable on an implied contract within the scope of its corporate powers, where the contract is deduced by inference from corporate acts or is a contract implied in law" (Emphasis added.) Id., 123; see also Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564-69, 244 A.2d 404 (1968) (considering claim of unjust enrichment against municipality, but ultimately rejecting claim under circumstances of that case). The only limitation to recovery under this theory that is peculiar to a municipality is that this implied in law contract must be within the municipality's "corporate powers; it must appear that there is statutory authority in the city to contract for the particular services." Windham Community Memorial Hospital v. Willimantic, supra, 123. This rule is consistent with that of other jurisdictions, which allow private parties to recover under a theory of unjust enrichment against municipalities, except where such an implied in law contract would be ultra vires. See 10A E. McQuillin, Municipal Corporations (3d Ed. Rev. 1999) § 29.112, pp. 111-12 ("[t]here is considerable authority . to support the rule that a recovery may be allowed [where contract is otherwise invalid for failure to follow procedures set forth in statute or charter] . . . upon the theory that it is not justice, where a contract is entered into between a municipality and another, in good faith, and the corporation has received benefits, to permit the municipality to retain the benefits without paying their reasonable value"; but such recovery may be conditioned on whether contract was within corporate powers); 2 S. Stevenson, Antieau on Local Government Law (2d Ed. 2005) § 32.02 [1] and [2], 32.03 [1] (noting that some states recognize claims of unjust enrichment against municipality, but provider of goods or services under contract that is ultra vires cannot recover in quasi-contract). Accordingly, we conclude that the trial court's instruction on a breach of implied in fact contract was not warranted on the grounds that unjust enrichment cannot be established against a municipality. The judgment is reversed and the case is remanded to the trial court for a new trial. In this opinion the other justices concurred. The year 2000 problem, which commonly was referred to as the Y2K problem, was a defect that existed in many software programs developed during the twentieth century when programmers, in an attempt to save computer memory, stored four digit years using only the last two digits and instructed the program to assume that the first two digits were "19." See generally United States Senate Special Committee on the Year 2000 Technology Problem, Investigating the Impact of the Year 2000 Problem: Summary of the Committee's Work in the 105th Congress (February 24, 1999), pp. 8-11. The defect presented itself when the user attempted to input into these programs dates in the twenty-first century, which these software programs interpreted as the corresponding two digit year in the twentieth century. See id., p. 8. At the outset of oral argument on the defendant's motion for a directed verdict, the trial court stated: "Well, let's just start with the first two counts, which I technically — I'm going to ask you to comment on, even though I ruled on them. Let's just get that on the record, and disposed of, so at least from my position — my position would be that this is [a] legitimate time to consider these issues. I don't think there's anything on the evidence that would — even if they had been allowed to be part of the case that would be — that we need additional evidence on. So, let's just assume that evidence is there. What's your position on the first two counts? One, being an [express] contract, and two, being estoppel?" During the pendency of this appeal, the Appellate Court ordered the trial court to articulate the disposition of the first two counts and, if the counts had been disposed of, to articulate the legal basis for such disposition. The trial court's articulation stated that on February 27, 2004, it granted the defendant's motion for a directed verdict on counts one and two, but denied the motion on count three. "Under the general verdict rale, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall." (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 371, 727 A.2d 1245 (1999). The general verdict rule will apply where there has been a "denial of a complaint and pleading of a special defense . . . ." (Internal quotation marks omitted.) Id., 372. Although the defendant alleged at least one special defense in its answer that might have applied to the plaintiffs unjust enrichment count, the trial court did not instruct the jury with regard to any of the defendant's special defenses. Thus, the jury must have reached its verdict in favor of the defendant solely on the ground that the plaintiff did not prove its case on its unjust enrichment count as instructed by the trial court. We therefore conclude that the general verdict rule is not implicated in the present case. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we thereafter transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The plaintiff also argues that, even if the trial court employed a proper procedure by which to dismiss its first two counts, the trial court improperly determined that it could not maintain a cause of action sounding in estoppel against a municipality. Because we conclude that the trial court employed an improper procedure in dismissing this count and that the plaintiff is entitled to a new trial on this count, we do not reach the merits of the plaintiffs alternate claim. The defendant makes a number of other arguments, interspersed throughout its brief in this court, that could be interpreted as alternate grounds to affirm the trial court's judgment. The defendant failed to file, however, a timely preliminary statement of issues as required by Practice Book § 63-4 (a) (1), indicating that it intended to present alternate grounds upon which the judgment might be affirmed. In addition, the defendant failed to provide in its brief a statement of alternate grounds to affirm the judgment as required by Practice Book § 67-5 (a). Further, the defendant failed to place these arguments under appropriate headings and into separate parts of its brief as required by Practice Book § 67-5 (d) and 67-4 (d). Accordingly, we decline to review these claims. If the defendant had moved for summary judgment, the plaintiff would have had the opportunity to file an opposing memorandum of law to the motion. See Practice Book § 17-45 (summary judgment motion must be placed on short calendar no less than fifteen days after it was filed and adverse party may, within ten days of filing motion, request that motion be placed on short calendar no less than thirty days after filing of request for extension); Practice Book § 11-10 (adverse party may file memorandum of law "on or before the time the matter appears on short calendar"). In addition, if the defendant had moved for summary judgment, the plaintiff would have had a right to argue the motion orally. Practice Book § 11-18. In the present case, the trial court required the plaintiff to submit its brief simultaneously with the defendant's, the plaintiff was given approximately four days to submit its brief to the trial court, and the plaintiff was not provided an opportunity to argue orally before the trial court dismissed the counts. Practice Book § 15-1 provides in relevant part: "Where the pleadings in an action present issues both oí law and of fact, the issues of law must be tried first, unless the judicial authority otherwise directs. . . ." Practice Book § 16-9 provides in relevant part: "The judicial authority shall decide all issues of law and all questions of law arising in the trial of any issue of fact . . . ." General Statutes § 52-216 provides in relevant part: "The court shall decide all issues of law and all questions of law arising in the trial of any issue of faci....." The defendant also argues that, even if the trial court improperly dismissed the first two counts, it was harmless because the factual underpinnings of the plaintiffs three counts were the same and the trial court renewed its inquiry into the legal sufficiency of the first two counts during oral argument on the defendant's motion for a directed verdict. We disagree. Although the core of the factual allegations underlying the dismissed counts and the remaining unjust enrichment count were essentially the same, there are obvious differences in what the plaintiff needed to prove to prevail on each count. Specifically, to prevail on its estoppel claim, the plaintiff had to prove that the defendant did or said "something which [was] intended or calculated to induce [the plaintiff] to believe in the existence of certain facts and to act on that belief; and the [plaintiff], influenced thereby, must [have changed] his position or [did] some act to [its] iqjury which [it] otherwise would not have done." (Internal quotation marks omitted.) John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 711, 448 A.2d 180 (1982). In addition, the plaintiff had to "show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotation marks omitted.) Id. By contrast, to prevail on a claim of unjust enrichment the plaintiff had to prove: "(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). Further, the facts that the plaintiff would have needed to prove to prevail on its dismissed breach of contract count stand in even starker contrast to the facts necessary to prove unjust enrichment because proof of an operative contract would have been incompatible with recovery on an unjust enrichment theory. Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517, 735 A.2d 813 (1999) ("express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter" [internal quotation marks omitted]). Although the trial court gave the plaintiff an opportunity to present oral argument on the dismissed counts during the defendant's directed verdict motion, nothing in the record shows that the plaintiff had notice prior to trial that the trial court would renew its inquiry on the legal sufficiency of these counts during the trial. Moreover, once the trial court dismissed the plaintiff's first two counts prior to the trial, the plaintiff had no reason to put on its case on these counts. We reject 1he defendant's claim that the plaintiff was not harmed by the trial court's dismissal of the first two counts of its complaint. While a trial court "has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding"; (internal quotation marks omitted) Lin v. National Railroad Passenger Corp., 277 Conn. 1, 6, 889 A.2d 798 (2006); the trial court should "submit to the jury the issues as outlined by the pleadings and as reasonably supported by the evidence." (Emphasis added; internal quotation marks omitted.) DiStefano v. Milardo, 276 Conn. 416, 421, 886 A.2d 415 (2005); see also Faulkner v. Reid, 176 Conn. 280, 281, 407 A.2d 958 (1978) (trial court improperly instructed jury on contributory negligence where pleadings failed to allege special defense of contributory negligence); Drummond v. Hussey, 24 Conn. App. 247, 248, 588 A.2d 223 (1991) (trial court properly did not instruct on contract and quantum meruit theories because they were not raised in pleadings). In the present case, the plaintiffs lone remaining count that was alleged in the complaint was unjust enrichment. Accordingly, the plaintiff was entitled, as long as its claim was reasonably supported by the evidence, to have the trial court properly submit its unjust enrichment claim to the jury. The plaintiffs ability to prevail o577n its unjust enrichment claim nevertheless may be limited, even if it was within the municipality's powers to contract for the services that the plaintiff conferred upon it. As we have stated repeatedly, the trier of fact must examine the particular circumstances and the conduct of the parties to determine if the defendant was unjustly enriched to the plaintiffs detriment. See, e.g., Cecio Bros., Inc. v. Greenwich, supra, 156 Conn. 564-65. Where the defendant is a municipality, its unique nature must be taken into account when examining the circumstances of the case. See id., 568-69 (considering, in concluding that defendant municipality was not unjustly enriched, fact that plaintiffs failure to give timely notice of additional incurred costs deprived municipality of opportunity to keep project within limits of appropriated public funds); see also A.F.A.B., Inc. v. Old Orchard Beach, 639 A.2d 103, 106 (Me. 1994) (rejecting per se bar on recovering from defendant municipality on unjust enrichment theory, but recognizing that "fact that the defendant is a municipality, and therefore the taxpayers will bear the burden of compensating the plaintiff should recovery be allowed, is one of the circumstances appropriately to be considered in determining whether the municipality should be accountable for a claim of unjust enrichment").

Opinion SULLIVAN, C. J. The plaintiffs, Manuel Moutinho and J.R.R.C. Associates (J.R.R.C.), appeal from the judgment of the trial court dismissing for lack of subject matter jurisdiction their zoning appeal from the decision of the named defendant, the planning and zoning commission of the city of Bridgeport (commission), denying certain applications filed by the plaintiffs. The plaintiffs claim that the trial court improperly concluded that Moutinho was not aggrieved by the commission's decision and that J.R.R.C. had no right to bring an appeal, despite the fact that it was statutorily aggrieved. We reverse the judgment of the trial court. The record reveals the following undisputed factual and procedural background. In 1998, Moutinho applied to the commission for a special permit, site plan review, and coastal site plan review to construct a batch asphalt plant at 53-85 Seaview Avenue in Bridgeport. The applications identified Moutinho as a lessee of the property. When the applications were filed, the record owner of the property was a trust established for the benefit of four brothers; Anthony D. Julian, Raymond Julian, Dominick Julian, and Donald Julian; with Anthony Julian serving as trustee. Although the Julian brothers were not listed as applicants on the form Moutinho submitted to the commission, Raymond Julian had consented to the application by signing it on behalf of the trust. At the public hearing pertaining to the application, Moutinho's attorney also disclosed the brothers' names pursuant to General Statutes § 8-7c to ensure that the commission did not have a conflict of interest with the beneficial owners of the property. The commission ultimately denied all three of Moutinho's applications, and Moutinho and Anthony Julian, as trustee, appealed from the commission's decision to the Superior Court. After the appeal was filed, the property was conveyed by the trust to J.R.R.C., a general partnership whose sole partners were Dominick Julian, Raymond Julian, and Anthony Julian. Thereafter, the trial court granted a motion to substitute J.R.R.C. as a plaintiff in place of Anthony Julian as trustee. On appeal, Dominick Julian and Moutinho testified that there existed an oral agreement to enter into a long-term lease of the property if the asphalt plant were approved. Moutinho testified that this agreement had existed since 1990. Dominick Julian testified that the property had remained vacant and that J.R.R.C. had not sold or leased it to any other party during the pendency of this appeal. After the first day of testimony, the trial court determined that J.R.R.C. was aggrieved by the commission's decision, but declined to decide at that time whether Moutinho was aggrieved and asked the parties to submit supplemental briefs on the issue. Although the court found that Moutinho was not a lessee of the property, it also found that he had an oral agreement with the owner of the property to enter into a long-term lease agreement if the applications were approved. It concluded, however, that Moutinho was not aggrieved by the denial of the applications because his oral agreement with J.R.R.C. did not comply with the statute of frauds and, therefore, was unenforceable. The court further concluded that, although J.R.R.C., as the property owner, was aggrieved, it could not appeal from the commission's decision because it could not seek relief from rulings on applications that it did not make. The plaintiffs filed a motion to reargue, which the trial court denied. This appeal followed. On appeal, the plaintiffs claim that because Moutinho was either a lessee or a licensee of the property, he was classically aggrieved by the commission's decision. They also claim that because J.R.R.C. was both statutorily aggrieved and classically aggrieved, it was entitled to appeal from the commission's decision. The commission claims that this court should affirm the trial court's judgment of dismissal with respect to J.R.R.C. on the alternate ground that J.R.R.C. was not aggrieved by the commission's decision. With respect to Moutinho, the commission claims that the trial court properly found that he was not aggrieved because his interest in the property is too attenuated to establish aggrievement. We agree with the plaintiffs. Before we address the merits of the parties' claims, we briefly set forth the law governing aggrievement and the standard of review. "[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiffs appeal." (Internal quotation marks omitted.) Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003). "Standing . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Id. "Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest. Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. . . . "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Lewis v. Planning & Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005). "Aggrievement presents a question of fact for the trial court. . . . The scope of review of a trial court's factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn. App. 340, 344-45, 812 A.2d 156 (2002). I Turning to the merits of the plaintiffs' claims, we first consider whether Moutinho was classically aggrieved by the commission's decision. In zoning appeals, "[t]his court has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party . Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989). In Primerica, we addressed the question of whether a lessee could demonstrate a specific, personal and legal interest in the leased property and, therefore, be classically aggrieved by a zoning decision affecting the property. Id., 92-95. In that case, the plaintiff had constructed several buildings on a specially zoned parcel of land that it owned in the town of Greenwich. Id., 89. The regulations governing the parcel required occupancy by a single executive office and limited the number of employees per lot to twenty-five employees per acre. Id. After a change in the plaintiffs business model resulted in underutilization of the facility, the plaintiff attempted to increase the property's value in order to put it up for sale by petitioning the commission to amend the regulations to eliminate the single occupancy requirement. Id., 90. The commission denied the plaintiffs petition, but, thereafter, pursuant to its staffs proposal, it amended the regulation to increase the number of occupants and reduce the permitted employee density. Id., 91-92. Underthe amended regulation, the plaintiff s property could accommodate three occupants, but each occupant was permitted to have fewer employees. Id. The plaintiff appealed to the trial court both from the commission's decision to deny its petition and from the commission's subsequent amendment of the regulations. Id., 92. During the pendency of the appeal, the plaintiff sold the property, but leased 55 percent of the property for a ten year term and agreed to guarantee rent for five years with respect to the remainder of the building complex. Id., 93-94. The plaintiff also held a right of first refusal should the new owner sell the property and was the purchase money mortgagee of the property. Id., 94. The trial court concluded that the plaintiff was aggrieved and reversed the commission's amendment of the zoning regulations. Id., 87. The defendant then appealed to this court. Id., 87-88. Although the plaintiff no longer owned the property, we concluded that it had a sufficient interest in the property as lessee to be considered an aggrieved party. Id., 94-95. It is clear, therefore, that a lessee may have a sufficient interest in leased property to be aggrieved by a zoning decision affecting that property. The question we must now address is whether a party who has an oral agreement to lease property after the fulfillment of a contingency may be aggrieved by a land use decision affecting the property. Although this court previously has not considered this question, the Appellate Court's opinion in DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 370-71, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991), is instructive. In that case, one of the plaintiffs applied for zoning approval of a used car dealership on property owned by his parents. Although the parents were not listed as applicants, they signed the son's zoning application to indicate their consent to his use of the property. Id. At the public hearing, the father and son both testified that they intended to continue the long-standing, prior use of the property as a used car dealership, with the father supplying the land and the son managing the business. Id., 371-72. The board denied the son's application, and the father and son appealed to the Superior Court. Id., 372. The trial court concluded that neither the father nor the son was aggrieved and, specifically, that the son was not aggrieved because he did not have a legally enforceable interest in the property. Id., 373. The father and son appealed, and the Appellate Court reversed the judgment of the trial court, holding, inter alia, that the informal agreement between the parents and their son had created a sufficient interest in the property to establish the son's aggrievement. Id., 376-77. We acknowledge that DiBonaventura presents a factually different situation than the present case, which does not involve an agreement among family members. Nevertheless, DiBonaventura is instructive inasmuch as it stands for the proposition that a landowner and a nonowner developer need not have a written, legally enforceable agreement when other facts, such as the existence of a credible, oral agreement, establish that the developer has a specific, personal stake in the property. The court's decision in Marinelli v. Board of Appeal, 275 Mass. 169, 175 N.E. 479 (1931), also provides some guidance. In Marinelli, a fuel company applied for a permit to construct certain structures on land owned by a railroad corporation. Id., 171. The parties orally had agreed that the fuel company would relocate to the subject property, which it would either buy or lease from the railroad. Id., 171-72. After the building commissioner denied the permit, both parties petitioned the board of appeal, which granted a variance allowing the proposed construction. Id. Opponents of the project appealed from the board's decision, claiming, inter alia, that the fuel company did not have sufficient interest in the matter to appear before the board. Id., 173. The court concluded: "Even though the agreement between the railroad corporation and the fuel company was oral and hence not enforceable at law, there is no reason why their purpose to execute an obligation of honor and fair dealing should not be respected. . . . The fuel company, having no title to the land, nevertheless had such interest therein in view of the attitude of the railroad corporation as entitled it . to consideration by the respondent board." Id., 172-73. The court further concluded that, although the oral agreement was not enforceable between the parties, it established a sufficient link between the fuel company and the property to confer subject matter jurisdiction for purposes of the zoning appeal. Id. We are persuaded by the reasoning of these opinions that an agreement between a landowner and a non-owner developer need not be in writing to establish the developer's aggrievement in a zoning appeal. When the evidence establishes the existence of an oral agreement and the intent of the parties to abide by that agreement, "a substantial and legitimate interest" in the property exists. Primerica v. Planning & Zoning Commission, supra, 211 Conn. 93. The evidence in the present case established the existence of such an agreement. Therefore, we conclude that Moutinho was aggrieved by the commission's denial of his applications. We farther conclude that the statute of frauds does not apply in this case. The statute of frauds governs disputes that arise between the parties to a contract; see General Statutes § 52-550; and the present case does not involve a contract dispute between Moutinho and J.R.R.C. Accordingly, we conclude that the trial court improperly determined that Moutinho was not aggrieved by the commission's ruling. II Next, we turn to the plaintiffs' claim that J.R.R.C. has standing to appeal from the commission's decision because it owns the property at issue. Although the trial court found that J.R.R.C. was statutorily aggrieved pursuant to General Statutes § 8-8 (a), it determined that J.R.R.C. could not participate in this appeal because it was not an applicant before the commission. Under the plain language of § 8-8, however, a person who is statutorily aggrieved may take an appeal. General Statutes § 8-8 (b) ("any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located"). Accordingly, the trial court, having found that J.R.R.C. was statutorily aggrieved, had no authority to refuse to consider the merits of its appeal. In support of its alternate ground for affirmance that J.R.R.C. was not aggrieved, the commission reiterates its contentions pertaining to Moutinho's aggrievement. We reject the commission's claim for the reasons previously discussed in this opinion. The commission also claims that a property owner must have been either an applicant before the commission or a partner in the proposed project in order to establish aggrievement, but the authority it cites does not support this proposition. See RYA Corp. v. Planning & Zoning Commission, 87 Conn. App. 658, 667, 867 A.2d 97 (2005) (owner of affected property aggrieved by denial of subdivision application even though owner, who consented to application, was not listed as applicant on form filed with commission). Indeed, the case law suggests that any such argument would be without merit. See Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968) (owner of property at issue in zoning appeal always is aggrieved). Accordingly, we conclude that the trial court properly found that J.R.R.C. was aggrieved under § 8-8, but improperly concluded that the finding of aggrievement was not sufficient to allow J.R.R.C. to participate in this appeal. We therefore reverse the trial court's judgment of dismissal. The judgment is reversed and the case is remanded for further proceedings according to law. In this opinion the other justices concurred. The Appellate Court granted the plaintiffs' petition for certification to appeal from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Brian Hariskevich, Annette Mathews and John Percell, who intervened in the underlying zoning matter pursuant to General Statutes § 22a-19, are also named as defendants in this action. General Statutes § 8-7c provides: "Any person who makes an application to a planning commission, zoning commission or zoning board of appeals pertaining to real property, the record title to which is held by a trustee of an undisclosed trust, shall file with said application a sworn statement disclosing the name of the equitable owner of such real property or the beneficiary of the trust." It is difficult to discern from the record whether Moutinho's oral agreement was with the trust itself or with Dominick Julian. We conclude, however, that we need not resolve this ambiguity. The commission does not claim that Moutinho was not aggrieved because he contracted with someone who lacked authority to bind the trust. In addition, the trial court found that Moutinho had an oral agreement with the owner of the property. It did not find that his agreement was with only one of the Julian brothers, and we can discern no reason to disturb this finding of fact. See State v. Skakel, 276 Conn. 633, 721, 888 A.2d 985 (2006) (findings of fact overturned on appeal only if clearly erroneous). In support of this conclusion, we cited a number of cases in which we had allowed lessees to maintain appellate proceedings and therefore had concluded, implicitly, that lessees have sufficient interest in the leased property to be aggrieved by decisions affecting the property. See Primerica v. Planning & Zoning Commission, supra, 211 Conn. 94. Our sister states also have recognized that a lessee may have a significant enough interest in leased property to bring a zoning appeal. See, e.g., Rodriguez v. Henderson, 217 Ill. App. 3d 1024, 1036-37, 578 N.E.2d 57 (1991); Ralston Purina Co. v. Zoning Board, 64 R.I. 197, 199, 12 A.2d 219 (1940). General Statutes § 52-550 provides in relevant part: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof . . . ." General Statutes § 8-8 (a) provides in relevant part: "As used in this section: "(1) 'Aggrieved person' means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, 'aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board. . . ."

Opinion ZARELLA, J. The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant, Trendel Tutson, of attempt to commit murder in violation of General Statutes § 53a-54a and 53a-49, and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). The state claims that the Appellate Court improperly reversed the defendant's conviction on the ground that the trial court's exclusion of certain alibi testimony deprived him of his right to present a defense under the United States constitution. The state specifically challenges the Appellate Court's conclusion that the trial court (1) improperly determined that the testimony of a key defense witness constituted an alibi, and (2) abused its discretion in excluding the proffered testimony as a reasonable sanction for the defendant's failure to satisfy the alibi notice provisions of the rules of practice. The state also claims that the trial court improperly merged the defendant's sentences and requests that the case be remanded to the Appellate Court to resolve that claim if the Appellate Court's decision is reversed. We agree with the state and, accordingly, reverse the judgment of the Appellate Court and remand the case to that court with direction to consider the sentencing claim. The opinion of the Appellate Court sets forth the following relevant facts that the jury reasonably could have found. "[0]n March 26, 2001, between 1 and 1:30 p.m. . . . Ernesto Molina was driving a 1992 red Volkswagen Jetta on Bond Street in Hartford, looking to buy marijuana. Molina was joined by two passengers, Jorge Pagan, Molina's best friend, who sat in the front passenger seat, and Michael Alvarado, who sat in a backseat. As the vehicle traveled on Bond Street, Molina and Pagan noticed a small white car traveling toward them in the opposing lane. They also noticed that there was a passenger in the front seat. As the cars passed, Molina and Pagan saw the face of the driver of the white car. "After the vehicles passed, the white car turned around and, with increasing speed, began following the red Jetta on Bond Street. Molina and Pagan noticed this and became concerned. In an attempt to elude the car, Molina increased his speed to eighty-five to ninety-five miles per hour and drove through stop signs and traffic lights. Molina ultimately turned onto Brownell Avenue and the white car did the same. As the cars were traveling at fifty-five miles per hour, Molina looked in his rearview mirror and saw a long black pole, which he thought was a rifle, come out of the driver's side window of the white car and turn in the direction of the Jetta. Molina then heard a noise and felt something strike the back of his head. A large caliber bullet had pierced the back of the Jetta and traveled through the vehicle's trunk and passenger compartment. A fragment of that bullet lodged in the back of Molina's head. Although injured, Molina kept driving, turning right onto Broad Street and continuing to Hartford Hospital. The white car did not follow the Jetta, turning left onto Broad Street instead. "At the hospital, the police immediately were notified of the incident. They arrived at the hospital shortly thereafter and briefly spoke with Molina, Pagan and Alvarado regarding the shooting. The police also conducted a formal interview of Pagan at the police station during which Pagan described the driver and passenger of the white car. "Approximately one hour after arriving at the hospital, the police were contacted by the security department from the Learning Corridor (Corridor). The police were told that a member of the Corridor's security personnel was walking to lunch between 1 and 1:30 p.m., when he heard what sounded like a gunshot resonating from Brownell Avenue. The police also were notified that this security officer searched Brownell Avenue after he learned about the shooting and recovered a twelve gauge shotgun shell from the north side of the street. The police ultimately took the shell into their possession. At that time, it was neither dirty nor rusty and did not appear to have been on the street for a long time. The shell, however, was never tested for fingerprints. The police also took a videotape from the Corridor's exterior surveillance camera. That tape revealed that two vehicles, one red, one white, were on Brownell Avenue and that the red vehicle turned right onto Broad Street while the white vehicle turned left. Neither gunfire nor the make of the vehicles could be discerned from the videotape]. In addition, the videotape] was [time-stamped] in a manner that made it unclear that the events depicted actually occurred on March 26, 2001. "Approximately twelve hours after the shooting, at roughly 2 a.m. on March 27, 2001, Pagan, while driving to a gas station to buy a beverage, observed that he was being followed by the defendant in a white Dodge Neon (Neon). Pagan immediately notified police officers that the vehicle that had been involved in the earlier shooting was following him. The police located the Neon and pursued it, but it fled, turning its headlights off in the process. Shortly thereafter, the police located the vehicle in the rear yard of 51 Whitmore Street. The vehicle appeared abandoned; the engine was not running, although it was still warm, and the doors were wide open. A short distance away, the police found the defendant and Philip Washington hiding beneath some cars. Thereafter, the police brought Pagan to the scene where he positively identified the defendant as the driver of the Neon in the earlier shooting and Washington as its passenger. "The police subsequently discovered that Rooty Thomas [Rooty], who lived in Meriden, was the lessee of the Neon. Once contacted, Rooty . . . gave the police permission to search the vehicle. "The police performed gunshot residue tests on the hands of the defendant and Washington as well as on the exterior and interior surfaces of the driver's and passenger's doors of the Neon. These tests disclosed lead particles on the palm of the defendant's left hand as well as on the back of his right hand. They further revealed the presence of lead, barium and antimony on the palm of Washington's left hand and lead particles on the exterior of the vehicle's passenger door. "On April 5, 2001, Molina identified the defendant from a photographic array shown to him by the Hartford police and, on March 8, 2002, Pagan did the same. No weapon was ever recovered." State v. Tutson, 84 Conn. App. 610, 612-15, 854 A.2d 794 (2004). On April 13, 2001, nearly one year prior to the start of the defendant's trial, the state sent the defendant a demand for written notice of his intention to offer an alibi defense pursuant to Practice Book § 40-21. The state specifically requested notice of "the place claimed to have been and the names and addresses of the witnesses upon whom [the defendant] intends to rely to establish such alibi. The crime [s] charged against the defendant are alleged to have occurred on the following date, time, and place: [March 26, 2001]; 1:35 [p.m.]; BROAD STREET AND BROWNELL AVENUE, HARTFORD On August 6, 2001, the defense sent a letter to the state via facsimile identifying Julia Thomas (Julia) as the only alibi witness. The letter contained no information, however, regarding the defendant's whereabouts at the time the crime was committed. The defense also provided the state with a three page investigative report dated April 19,2001. The report was based on a personal interview with Julia and a telephone interview with her son, Terrell Thomas (Terrell). Although the report referred to the defendant's "girlfriend" and listed the name of Rooty as a subject to be interviewed, it did not name Rooty as a prospective witness and did not identify her as the defendant's girlfriend. The trial commenced on March 11, 2002. The state alleged that the defendant was guilty as a principal or an accessory of criminal attempt to commit murder and assault in the first degree. In the bill of particulars dated March 11, 2002, the state specifically alleged that, "[o]n [March 26, 2001], at approximately 1:30 p.m., the defendant was the operator of a 1997 white Dodge Neon proceeding east on Bond Street" and that "Washington was his front seat passenger in the . . . Neon." The state further alleged that the defendant had engaged in a car chase with Molina, who was driving a red Volkswagen Jetta carrying two other passengers, and had fired a shot at the Jetta, or had assisted Washington in shooting at the Jetta, thereby causing physical injury to Molina. The defendant, relying on theories of misidentification and alibi, attempted to convince the jury that the two eyewitnesses to the shooting incorrectly had identified him as the perpetrator because, at the relevant time, he was in another location and thus could not have committed the alleged offenses. As the state was nearing the end of its case-in-chief, defense counsel represented to the court, outside the presence of the jury, that she had given the state the names of Julia and her sons, Terrell and Tyrone Thomas (Tyrone), as alibi witnesses. An extended discussion followed as to whether the defendant had provided the state with adequate notice to admit the proposed alibi testimony, in particular that of Tyrone. The state argued against admission of Tyrone's testimony because Julia was the only alibi witness named in the defendant's August 6, 2001 response to the state's demand for written notice of an alibi defense. The state additionally argued that the investigative report, which defense counsel also had characterized as written notice of the defendant's intention to offer an alibi defense, did not identify Terrell and Tyrone as alibi witnesses and did not provide information regarding the defendant's whereabouts at 1:30 p.m., when the crime allegedly was committed. The court also expressed skepticism as to whether Tyrone's proposed testimony constituted an alibi because it would have referred to a time prior to the shooting and because of the proximity of the crime scene to Julia's residence. During this discussion, defense counsel declared that the defendant's "strongest" alibi witness was Rooty. When the state protested that it had not been given notice that Rooty would testify as an alibi witness, defense counsel replied that she had included Rooty on the defense witness list, although counsel was having difficulty locating her. Upon further inquiry by the court, defense counsel stated that if Rooty could be located and was allowed to appear as an alibi witness, she would testify that she and the defendant went to New Haven following his visit with Terrell to pick up her child or drop off her nephew. The court noted that the defense had not given the state proper notice that Rooty would testify as an alibi witness and characterized the lack of timely notice as bordering on "egregious." The court declared: "[A]libis that come into play close to the time of trial are always really suspect. I mean, if there's a legitimate alibi, it's usually put into play early on, next to the time of the alleged offense. . I want to give you latitude. . . . [I]t almost appears as a conscious effort not to give them alibi [notice] and to spring a surprise on them." The court reserved ruling on the matter, however, until after the defense had made an offer of proof. That same day, prior to the testimony of the state's final witness, the defense filed the following notice of alibi with the court: "[0]n the date of [March 26, 2001] at approximately [1] and 1:20 [p.m.], the defendant . . . was at the home of . . . Julia . . . and Tyrone . . . located at 827 Wethersfield Avenue, Hartford . "[0]n [March 26, 2001] at approximately 1:20 until [3 or 4 p.m.], the defendant . . . was in the company of Terrell . . . and Rooty . . . (who are not related to each other) [en] route to and from Meriden and New Haven . . . where Rooty . . . had to pick up her . . . child from school." After the state concluded its case-in-chief, defense counsel reiterated to the court, outside the presence of the jury, that if Rooty was located and permitted to appear as an alibi witness, she would testify that the defendant left Julia's residence at approximately 1:20 p.m. on the day of the shooting and accompanied her to Meriden and New Haven to pick up her child. The court responded: "In all likelihood . . . I'm not going to allow that because I don't think it's — not only [is it] not in compliance but it avoids the whole spirit of having alibi witnesses. The only way I got the door open a crack for you — otherwise I'd dismiss it completely — is that, in this investigative report in the last paragraph, buried in there, it mentions that Meriden-New Haven trip. That's the only reason I'm keeping the door open [slightly]." Additional discussion ensued as to whether Julia should be allowed to testify as an alibi witness regarding events that transpired after 12:30 to 1 p.m. but that were not described in the investigative report. The court ultimately concluded: "The best thing is to have adequate notice. . I want to keep the door open because of Rooty [who is] in this report. What's more troubling is your subsequent report dated August [6, 2001, that] says just Julia. . So you're saying, here's our alibi witness, Julia. No time given. No place where the person is. You've got her address. That's not saying the defendant was there. So it seems to me that this subsequent letter obviates the investigative report and says, this is our alibi, Julia." The following day, defense counsel informed the court that she finally had located Rooty, who would be available to testify later that day. The court replied that, because defense counsel had failed to comply with the applicable rules of practice, it would allow Rooty to testify as an alibi witness only if the state was given an opportunity to interview her first. Defense counsel initially agreed to this proposal but then informed the court that she no longer wanted to offer Rooty as an alibi witness because she had learned that Rooty was not with the defendant at the time of the shooting. The court responded that, in those circumstances, the defense had "an absolute right" to call Rooty as a regular witness. Thereafter, Julia testified in a manner generally consistent with the investigative report, stating that the defendant was visiting her sons, Terrell and Tyrone, when she returned home from grocery shopping between 12:30 and 1 p.m. on the day of the shooting and that he left at approximately 1:10 to 1:15 p.m. She further testified that the defendant had stated upon leaving that his girlfriend was waiting outside in her car. Julia described the vehicle, which she had seen when returning to her residence a short time earlier, as a small white car with a child inside. Rooty subsequently testified that she drove the defendant to Julia's residence to visit his friend Terrell between 12:30 and 1 p.m. on the day of the shooting. Before she could testify further, however, the state objected, outside the presence of the jury, to further questioning of Rooty because it appeared that she was about to give alibi testimony. Defense counsel responded that Rooty was going to testify that, after she dropped the defendant off at Julia's residence, she left the area and returned to pick him up around 2 p.m. When the court noted the conflict between the proffered testimony and Julia's testimony that the defendant had left her residence shortly after 1 p.m., the defense responded that Rooty was not an alibi witness because she would not be testifying as to what the defendant did between the time she dropped him off and the time she picked him up. The court disagreed, stating that "[t]he only way [such testimony] could be relevant is that it's relevant to an alibi that from [1 to 2 p.m. the defendant] was at . . . [Julia's] house." The state moved to strike Rooty's testimony on the ground that it constituted an alibi. The court noted that it had tried to be fair to both sides by allowing Rooty to testify as an alibi witness, despite the lack of adequate notice, as long as the state was given an opportunity to interview her before she took the stand, but that defense counsel had rejected this proposal and informed the court that Rooty was not going to testify as an alibi witness. Defense counsel then revealed that she was trying to "get around the alibi issue problem" by establishing that the Neon was in another location when the shooting occurred and that the jury was free to make whatever inferences it wished with respect to the defendant's whereabouts during that time. The court responded that, regardless of the vehicle's location, the most significant inference to be drawn from Rooty's testimony was that the defendant was at Julia's residence at the time of the shooting. Concluding that defense counsel was "playing a game," the court observed that it had given the defendant the benefit of the doubt by interpreting tangential references in the investigative report to the defendant and his girlfriend going to Meriden and New Haven after 1 p.m. as partially satisfying the notice requirement for Rooty's alibi testimony. It also observed, however, that Rooty's testimony was, in effect, a different alibi about which the state had not been notified properly. Defense counsel ultimately agreed that the most recent version of Rooty's testimony would support an inference that the defendant was at Julia's residence between 1 and 2 p.m. but persisted in arguing that the testimony should be admitted. The court responded that defense counsel was missing the point because it was exactly this inference that constituted the alibi. When defense counsel replied that she was trying to "get around" the notice issue, the court reminded counsel that the point was not to "get around the law" but to "support the law . . . ." Defense counsel then asked the court if it would consider renewing its invitation to permit Rooty to testify as an alibi witness if the state were allowed to interview her first. In the discussion that followed, defense counsel again conceded that the effect of the proffered testimony was to suggest that the defendant was at Julia's residence between 1 and 2 p.m. The court ultimately precluded Rooty from giving any further testimony concerning events after 1 p.m. but declined to strike the testimony that she had given up to that point. The state then noted that Rooty's testimony that the car was in another location constituted an alibi defense because the state's theory of the case was that the defendant was operating Rooty's Neon when the crime was committed. According to the state, testimony that the car was elsewhere supported an inference that the defendant was elsewhere. The state also contended that, because its case was built on the premise that the defendant was driving the Neon when he committed the crime, testimony regarding the location of the Neon apart from the defendant's whereabouts would have no relevance. The court agreed, concluding that the relevance of the vehicle's location was intrinsically linked to its connection with the defendant: "To say the car is elsewhere is to say the defendant is elsewhere. That's an alibi. . I don't see how the vehicle or its whereabouts [have] any relevance to this case whatsoever except as to the defendant." After Rooty returned to the stand, defense counsel did not inquire further regarding her activities after she dropped the defendant off at Julia's residence. In the proceedings that followed, the state elicited rebuttal testimony from Detective Andrew Weaver of the Hartford police department that Rooty had stated in an interview that was conducted shortly after the crime was committed that the defendant had asked her if he could use her Neon on the morning of March 26, 2001, that she had assented to his request and that she was unaware of the location of the vehicle until Weaver had contacted her after the shooting. State v. Tutson, supra, 84 Conn. App. 619-20. In accordance with defense counsel's request, the court thereafter gave an alibi instruction that the defendant claimed he was elsewhere at the time of the alleged offenses. At the conclusion of the trial, the jury found the defendant guilty of attempt to commit murder and assault in the first degree. The court rendered judgment in accordance with the jury verdict and sentenced the defendant to twenty years incarceration. In sentencing the defendant, the court merged the sentences for each offense in accordance with State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The defendant appealed from the judgment of conviction on the ground that the trial court's exclusion of Rooty's testimony that the Neon was at a different location at the time of the shooting violated his right to present a defense under the sixth and fourteenth amendments to the United States constitution. See State v. Tutson, supra, 84 Conn. App. 622. The Appellate Court agreed, explaining that the excluded testimony "[did] not place the defendant at the relevant time in a location different from the scene of the crime and so removed therefrom as to render it impossible for him to be the guilty party. In fact, it [did] not facially concern the location of the defendant at the time of the crime." Id., 625. The Appellate Court thus concluded that the testimony could not be characterized as alibi testimony and that the trial court had no authority to exclude it as a sanction for defense counsel's failure to disclose Rooty as an alibi witness. See id. The Appellate Court also concluded that the improper ruling rose to the level of a constitutional violation that was harmful to the defendant, thus warranting reversal of the trial court's judgment and a new trial. Id., 626-27. This certified appeal followed. I The state first challenges the Appellate Court's conclusion that Rooty's proposed testimony that she was driving her Neon in the north end of Hartford at the time of the alleged offense did not constitute an alibi. The state argues that the defendant was inextricably linked with the Neon because two eyewitnesses identified the Neon as the car involved in the shooting and the defendant as its driver. Consequently, because Rooty's testimony would have suggested that it was physically impossible for the defendant to have been present when the crime was committed, it constituted an alibi. The defendant responds that the testimony in question did not constitute an alibi because it pertained to the location of the Neon rather than the location of the defendant. He maintains that, as long as he was not the one to have claimed that he was in the Neon, the location of the vehicle bears no logical relationship to whether he committed the shooting. The defendant also notes that Practice Book § 40-21 does not require the disclosure of evidence regarding instrumentalities of a crime or the disclosure of all available evidence indicating that he was not the perpetrator. He finally asserts that the purpose of Rooty's testimony was not to establish an alibi but, rather, to discredit the testimony of the two eyewitnesses who implicated him in the crime by showing that, if they were wrong about the identity of the car, they also could have been wrong about the identity of the shooter. We agree with the state. The issue of whether the proffered testimony constituted an alibi requires this court to interpret the applicable rules of practice and is governed by the same principles that govern statutory interpretation. E.g., Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 61, 818 A.2d 14 (2003); see also State v. Pare, 253 Conn. 611, 622, 755 A.2d 180 (2000) ("principles of statutory construction apply with equal force to Practice Book rules" [internal quotation marks omitted]). Our review is therefore plenary. See, e.g., State v. McCahill, 265 Conn. 437, 446, 828 A.2d 1235 (2003). "[0]ur fundamental objective [in statutory interpretation] is to ascer tain and give effect to the apparent intent of the legislature . . . ." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 604-605, 887 A.2d 872 (2006). We begin our analysis by examining the relevant rules of practice concerning alibi testimony. Practice Book § 40-21 provides: "Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within twenty days, or at such other time as the judicial authority may direct, a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi." Practice Book § 40-5 further provides that if a party fails to comply with disclosure under § 40-21, the opposing party may seek from the judicial authority an appropriate sanction, such as prohibiting the noncomplying party from introducing the evidence subject to disclosure. Section 40-5 thus places the responsibility for determining whether the evidence to be disclosed constitutes an alibi squarely with the judicial authority rather than the jury. The rules of practice do not define the term "alibi." See generally Practice Book § 40-21 through 40-25. When a term is not statutorily defined, we look to the commonly approved meaning of the word as defined in the dictionary. E.g., State v. Romero, 269 Conn. 481, 491, 849 A.2d 760 (2004). The word "alibi" is defined in Webster's Third New International Dictionary as "the plea of having been at the time of the commission of an act elsewhere than at the place of commission . . . .''The American Heritage Dictionary of the English Language defines "alibi" as "[a] form of defense whereby a defendant attempts to prove that he or she was elsewhere when the crime in question was committed." We therefore conclude that an "alibi," as used in Practice Book § 40-21, is a claim by the defendant that he or she was in a place different from the scene of the crime at the time of the alleged offense. Insofar as inferential testimony may be admitted in support of an alibi, we have noted in at least two prior cases that the location of a vehicle directly involved in a crime may be an integral part of an alibi defense. See Johnson v. Commissioner of Correction, 222 Conn. 87, 93, 608 A.2d 667 (1992) (concluding that defense counsel not ineffective for presenting alibi defense at defendant's insistence even though habeas court found "untenable" defendant's alibi that he was not in car in which victim was assaulted "because of the strength of the evidence relating to the identification of the car involved in the crime, including the victim's fingerprint found on its exterior"); Lombardo v. State, 172 Conn. 385, 386-87, 374 A.2d 1065 (1977) (referring to defendant's alibi that he was "preparing to attend a funeral . . . without an operable car available" at time of illegal drug transaction in which third party removed twenty-four kilograms of marijuana from trunk of car driven by defendant and sold it to undercover officers). This court never has been asked to determine, however, and the rules of practice do not address, whether inferential testimony regarding the defendant's location at the time of the alleged offense properly falls within the definition of an alibi and is subject to disclosure under Practice Book § 40-21. We thus turn for guidance to other jurisdictions that have considered similar provisions. The Supreme Court of Georgia recently interpreted § 17-16-5 of the Official Code of Georgia, a statutory provision regarding alibi testimony that is identical in all material respects to Practice Book § 40-21. See Tubbs v. State, 276 Ga. 751, 752-53, 583 S.E.2d 853 (2003). The court interpreted the statute to require not only the disclosure of witnesses who will testify as to the defendant's exact whereabouts at the time that the crime was committed but also the disclosure of witnesses who will give inferential testimony regarding the defendant's location. Id. The court concluded: "[A] defendant does not comply with the statute by listing only those witnesses who will testify as to the defendant's location at the specific time of the alleged offense. Instead, the statute prescribes notice in two parts: first, a statement of the alibi defense and, second, a list of witnesses in support thereof. Only the former refers to the particular time of the alleged offense. The latter portion is concerned with witnesses who will testify regarding the alibi defense. . . . Even if the witnesses do not testify that the defendant was at a certain location at the exact time of the offense, their testimony may still support such a finding. In that instance, they do come within the parameters of the statute because they are witnesses upon whom the defendant intends to rely to establish such alibi . . . ." (Citation omitted; internal quotation marks omitted.) Id. New Jersey has construed a similar statutory provision as applying to "witnesses circumstantially corroborative of alibi. . . . Whether the testimony of the proposed witness shows directly that a defendant was not physically present at the precise time and place of the alleged offense, or does so only inferentially, its purposes and objectives are the same. The difference is the weight and degree of persuasiveness attributed to that testimony by the jury. There is no less reliance by [the] defendant on such testimony nor less need for notice by the [s]tate that it will be offered." State v. Nunn, 113 N.J. Super. 161, 167-68, 273 A.2d 366 (App. Div. 1971); see also State v. Looper, 118 S.W.3d 386, 418 (Tenn. Crim. App.) (citing Nunn), appeal denied, Docket No. E2001-01550-SC-R11-CD, 2003 Tenn. LEXIS 675 (Tenn. July 7, 2003), cert. denied, 540 U.S. 1060, 124 S. Ct. 836, 157 L. Ed. 2d 717 (2003); State v. Coury, 697 S.W.2d 373, 379-80 (Tenn. Crim. App. 1985). We agree with those jurisdictions to have considered the matter that, depending on the circumstances, testimony supporting an inference that the defendant is at a location other than the scene of the crime at the time of the alleged offense may be admitted to establish an alibi, thus requiring disclosure in accordance with the notice provisions set forth in our rules of practice. Applying this principle in the present case, we conclude that the trial court properly characterized as an alibi Rooty's proposed testimony that she drove her Neon to the north end of Hartford after she dropped the defendant off at Julia's residence between 12:30 and 1 p.m., and that she picked him up at 2 p.m. The state's theory of the case, as set forth in the bill of particulars, was that the defendant was driving a white Dodge Neon at the time of the shooting. Two eyewitnesses later identified Rooty's Neon as the car involved in the shooting and the defendant as its driver. Other evidence likewise established that Rooty's Neon was the vehicle involved in the shooting. This evidence consisted of recent gunshot residue found on the exterior of the vehicle's passenger side door, information that Rooty was the lessee of the vehicle and the fact that Pagan and the police discovered the abandoned Neon approximately twelve horns following the crime in the aftermath of a chase, with its engine still warm and its doors wide open, and the defendant and Washington hiding nearby. The defendant's lack of access to the Neon implies that neither the Neon nor the defendant was present when the crime was committed. In other words, the defendant's location was coextensive with that of the car, and it is immaterial that the defendant could have reached the crime scene by some other means. Accordingly, the Neon and the defendant are not analytically distinct but inextricably linked, and Rooty's testimony that the Neon was in another location when the shooting occurred necessarily implied that the defendant was in another location as well. We therefore con- elude that the trial court properly determined that Rooty's testimony constituted an alibi for purposes of the notice provisions of Practice Book § 40-21. In light of the foregoing, the defendant's contention that he was not required to disclose evidence regarding the instrumentalities of a crime on which he intended to rely or to disclose all of the available evidence in his possession contradicting the state's case against him has no bearing on the issue before this court because the evidence in question, namely, Rooty's testimony regarding the Neon, constituted an alibi. The defendant's assertion that the location of the Neon is irrelevant unless he is the one to claim that he was driving the vehicle at the time of the shooting is unpersuasive for a similar reason. See State v. Dunne, 234 Iowa 1185, 1192, 15 N.W.2d 296 (1944) ("[t]he question whether an alibi is claimed is not settled by what a defendant contends his defense is"). To the extent that the defense sought admission of Rooty's testimony for the purpose of discrediting the testimony of the two eyewitnesses and advancing a theory of misidentification, the trial court properly excluded it because any theory of misidentification had to be based on the premise that the defendant was at another location at the time of the alleged offense, which is the classic definition of an alibi. Conversely, when the parties do not dispute that the crime was committed, as in this case, the defense of alibi, if successful, necessarily leads to the conclusion that the defendant was misidentified as the perpetrator. Consequently, because the defendant's theory of misidentification was inseparable from his alibi defense, the admission of Rooty's testimony under a theory of misidentification necessarily would have been in violation of Practice Book § 40-21. The defendant finally argues that construing the notice of alibi provision to require the defendant, but not the state, to disclose the whereabouts of an instrumentality of a crime, in this case, Rooty's Neon, violates the principle of reciprocity espoused in Wardius v. Oregon, 412 U.S. 470, 472, 475, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973), and would render Practice Book § 40-21 unconstitutional. The defendant recognizes that Connecticut's notice of alibi rule has been upheld as constitutional because its language places the same duty of disclosure on the defense as on the state. See State v. Villafane, 171 Conn. 644, 667-68, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds by State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). He contends, however, that, under the state's expansive reading of Practice Book § 40-21, the rule did not require the state to disclose its claim that the defendant was in Rooty's Neon at the time that the crime was committed but required the defendant to disclose his claim that he was not in her car at that time. The defendant suggests, therefore, that he was compelled to make a greater disclosure than the state and the reciprocal disclosure requirement of Wardius was violated. The defendant also contends that, even if § 40-21 can be read to require the defense to disclose the location of the Neon, the state never gave notice that it claimed that the defendant was driving the vehicle when the shooting occurred. This claim has no merit. In Wardius, the United States Supreme Court held that "the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants." Wardius v. Oregon, supra, 412 U.S. 472. In Connecticut, the rules of practice provide for reciprocal discovery rights with respect to a defendant's alibi testimony and have been upheld as constitutional. See State v. Villafane, supra, 171 Conn. 667-68. This principle is not violated in the present case, as the defendant contends, because the only disclosure required under Practice Book § 40-21 is a statement as to the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish the alibi. In other words, the defendant was required to provide nothing more than the name and address of Rooty as an alibi witness and the place that he claimed to have been when the crime was committed; he had no obligation to reveal the location of the Neon in the written notice of alibi. Proper notice, however, would have given the state an opportunity to interview Rooty and to determine more precisely what her testimony would have revealed insofar as it established the location of the defendant and the location of the Neon in the north end of Hartford after she dropped the defendant off at Julia's residence. Accordingly, the defendant's claim must fail because it is based on the faulty premise that the trial court's ruling would have required the defendant to disclose the location of Rooty's vehicle in the written notice of his intention to offer an alibi defense. We finally note that, contrary to the defendant's claim, the state specifically alleged in the bill of particulars that the defendant was driving a 1997 white Dodge Neon when the crime was committed. The defendant therefore cannot argue that the state did not disclose its claim that he was driving a white Neon when the alleged offense took place. II The state next claims that, because the Appellate Court improperly concluded that Rooty's testimony did not constitute an alibi, its corresponding conclusion that the trial court abused its discretion in excluding the proffered testimony also was improper. The defendant responds that the trial court's exclusion of Rooty's testimony was a mechanistic application of the disclosure rules that denied him his constitutional right to present a defense. We agree with the state. As a preliminary matter, we set forth the applicable standard of review and the legal principles governing our resolution of this claim. "The sixth amendment does not confer the right to present testimony free from the legitimate demands of the adversary system. . . . The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. [There is] ample room in that system [for a notice of alibi rule] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the [s]tate ample opportunity to investigate certain facts crucial to the determination of guilt or innocence. . . . The notice of alibi rules place reasonable conditions on the presentation of alibi evidence and do not impermissibly restrict a criminal defendant's right to compel attendance of witnesses. . . . "We recognize, however, as have most courts addressing the issue, that exclusion of alibi witnesses may not be justified in all cases where the defendant has failed to comply with the discovery rules. The trial court must weigh the need for exclusion against the defendant's right to present a defense. . . . The decision is within the sound discretion of the trial court and will turn on the facts of the particular case. Factors which the trial court must consider include: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance." (Citations omitted; internal quotation marks omitted.) State v. Boucino, 199 Conn. 207, 213-14, 506 A.2d 125 (1986). Practice Book § 40-5 provides in relevant part: "If a party fails to comply with disclosure as required under these rules, the opposing party may move the judicial authority for an appropriate order. The judicial authority hearing such a motion may enter such orders and time limitations as it deems appropriate, including, without limitation . (4) [prohibiting the noncomplying party from introducing specified evidence . . . ." Furthermore, Practice Book § 40-24 provides: "For good cause shown, the judicial authority may grant an exception to any of the requirements of Sections 40-21 through 40-23," which concern the disclosure of the defense of alibi. We conclude that the trial court did not abuse its discretion in excluding Rooty's testimony as a sanction for noncompliance with the applicable rules of practice. The defendant's notice of alibi named only one person, Julia, as an alibi witness. The investigative report, which the defense also characterized as notice of its intent to present an alibi defense, listed Rooty as a subject to be interviewed but not as the defendant's girlfriend or as a witness on whom the defendant intended to rely to establish an alibi defense. As a result, the investigative report made no reference to the testimony that Rooty would have given as an alibi witness. It was not until approximately eleven months later, after the trial had commenced and the state had presented the testimony of all but one of its witnesses, that the defense suddenly disclosed that its "strongest" alibi witness was Rooty. The defense thus failed to inform the state that Rooty would testify as an alibi witness until midway through the trial. In addition, the defense gave conflicting and misleading information as to the substance of the proffered testimony. The original notice disclosing Rooty as an alibi witness, which was untimely filed, disclosed that Rooty would testify that she and the defendant were together between 1:20 and 3 or 4 p.m. on the day of the shooting and that, during that time, they were en route to and from Meriden and New Haven to pick up or drop off her child. Thereafter, when the court, after much deliberation, agreed to admit Rooty's alibi testimony on the condition that the state would have an opportunity to interview her first, defense counsel declared that Rooty would not testify as an alibi witness. She thus appeared as a regular witness. Only after Rooty testified that she had dropped the defendant off at Julia's residence between 12:30 and 1 p.m. on the day of the shooting did the state express concern that she was about to give alibi testimony. Although defense counsel explained that she had learned only recently, after locating Rooty, that Rooty was not with the defendant at the time of the shooting, which accounted for the change in her testimony from that which was described in the written notice of alibi, she also conceded that she was trying to "get around the alibi issue problem" by offering testimony pertaining to the vehicle instead of to the defendant. Considering the untimeliness of the defendant's original disclosure that Rooty would testify as an alibi witness and the radical change in the substance of her testimony after defense counsel assured the court that Rooty would not testify as an alibi witness, we conclude that the trial court's exclusion of Rooty's testimony regarding events that transpired after she dropped the defendant off at Julia's residence was an appropriate sanction under Practice Book § 40-21. See State v. Sanchez, 200 Conn. 721, 729-32, 513 A.2d 794 (1986) (court properly excluded alibi testimony when defendant sought to add witness after state and defendant had rested their cases, defendant previously had stated that witness would not be called and witness was known to defendant throughout proceedings); State v. Bouchino, 199 Conn. 207, 210-11, 216, 506 A.2d 125 (1986) (court properly excluded alibi testimony when notice of alibi was filed more than two years after state filed its demand for notice and after commencement of trial); State v. Horne, 19 Conn. App. 111, 132, 562 A.2d 43 (1989) (court properly excluded alibi testimony when witness was disclosed almost three months after demand for notice, trial had commenced and state was concluding its case), rev'd on other grounds, 215 Conn. 538, 577 A.2d 694 (1990). The defendant maintains that, even if he violated the disclosure rule, the violation was not wilful and the alibi was not recently fabricated, both of which are commonly cited reasons for excluding such testimony. See Taylor v. Illinois, 484 U.S. 400, 411-12, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (alibi notice provisions minimize "risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony"). The defendant explains that the inability to locate Rooty earlier in the proceedings explains why the proffered testimony did not conform to the written notice of alibi, which was prepared and submitted to the court before she was located. He further explains that, despite good faith efforts, defense counsel was unable to locate Rooty until the middle of the trial, and defense counsel's first opportunity to interview her was the night before she testified. The defendant finally contends that he had a good faith belief that testimony regarding the location of Rooty's car was not alibi evidence and that the court itself recognized that whether it constituted alibi evidence was an issue about which "reasonable people could differ." (Internal quotation marks omitted.) He accordingly asserts that the trial court's sanction was excessive and bore no reasonable relationship to the legitimate purpose of the notice pro visions contained in the rules of practice. We are not persuaded. Even if we assume, without deciding, that the violation was not wilful and that the testimony was not fabricated; see Taylor v. Illinois, supra, 411-12; the defendant's failure to disclose the testimony in a more timely manner was unduly prejudicial to the state. "[T]he ends of justice will best be served by a system . . . [that] gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial." (Internal quotation marks omitted.) State v. Bronson, 258 Conn. 42, 54, 779 A.2d 95 (2001). "The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial." (Internal quotation marks omitted.) State v. Wilson F., 77 Conn. App. 405, 419, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). Rooty's belated alibi testimony was exactly the type of surprise that the rules of discovery were designed to prevent. The surprise was especially dramatic in the present case because the defense had assured the state only a short time ear lier that Rooty would not be giving alibi testimony. In addition, disclosure of the alibi testimony so late in the proceedings prevented the state from interviewing and investigating the witness, her testimony and other potential witnesses who might have had knowledge corroborating whether Rooty picked up or dropped off her child in Meriden or New Haven at the time in question. This in turn potentially affected the state's presentation of the evidence and its overall trial strategy. Although the untimely disclosure of alibi testimony in certain cases may be cured by a postponement or continuance; see Practice Book § 40-5; this was not an option in the present case because the trial had commenced and the state already had concluded its case-in-chief. Thus, any potential damage to the state's case caused by admission of the proffered testimony would have been, for all intents and purposes, irreversible and unduly prejudicial. Moreover, we have stated that the inability to locate a potential witness does not diminish a party's obligation to identify that person under the applicable rules of practice. State v. Sanchez, supra, 200 Conn. 731 n.5; see Practice Book § 40-23. If the defendant diligently had been tiying to locate Rooty and considered her to be one of his key witnesses, as he claims on appeal, defense counsel could have, and should have, requested a postponement or continuance for the purpose of determining her whereabouts and obtaining her testimony. We therefore conclude that the trial court did not abuse its discretion in excluding the proffered testimony as a sanction for the defendant's noncompliance with the applicable rules of practice. Ill The defendant claims, as an alternative ground for affirming the Appellate Court's judgment, that he was denied his constitutional right to present a defense when the trial court excluded his statement to Julia, made shortly before the shooting, that he had intended to go to Meriden. The defense offered this statement under § 8-3 (4) of the Connecticut Code of Evidence to prove that the defendant was en route to Meriden and could not have been at the crime scene when the alleged offense occurred. The state responds that the trial court properly excluded the statement because it was elicited for the purpose of establishing the defendant's alibi and not exclusively to establish his state of mind. We agree with the state that the trial court properly excluded the defendant's statement to Julia that he intended to go to Meriden. Julia, who appeared as a witness for the defense, testified that the defendant had left her residence at approximately 1:10 or 1:15 p.m. on the day of the shooting. She also was about to testify as to what the defendant said to her as he was preparing to leave when the state objected on hearsay grounds. Outside the jury's presence, defense counsel asserted that the testimony was admissible under the state of mind exception to the hearsay rule. The witness then informed the court that the defendant had told her that he had to go to Meriden with his girlfriend to drop off or to pick up her children and that he planned on coming back later after he did some "running around . . . ." The court responded that, despite defense counsel's assertion to the contrary, it appeared that the disputed testimony was being offered for its truth: "It's intent to do a future act. . . . It's offered for the truth contained therein, that . . . he's going to Meriden." The court also observed that, even if the testimony was being offered solely for the purpose of indicating the defendant's state of mind, it would have no relevance in the absence of evidence that the defendant went to New Haven or Meriden after he left Julia's residence. The court thus sustained the state's objection because no evidence to that effect had been admitted, and because defense counsel had told the court earlier that day that Rooty would not be giving alibi testimony that she was with the defendant after she dropped him off at Julia's residence. Thereafter, Julia testified that, upon leaving her residence, the defendant told her that his girlfriend was waiting outside in a small white car. She also testified that she had seen a woman and a child in a small white car parked outside her residence when she had returned from grocery shopping a few minutes earlier. We begin with the applicable principles of law. "The federal constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies. . . . "A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant's right is not violated." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 850-51, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). "Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter." (Internal quotation marks omitted.) State v. Saunders, 267 Conn. 363, 383, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004); see also Conn. Code Evid. § 4-1. "Finally, [i]t is well established that a trial court has broad discretion in ruling on evidentiary matters, including matters related to relevancy. . . . Accordingly, the trial court's ruling is entitled to every reasonable presumption in its favor . . . and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court's discretion." (Internal quotation marks omitted.) State v. Carpenter, supra, 275 Conn. 851. With respect to the principles that govern application of the hearsay rule, "[a]n out-of-court statement offered to establish the truth of the matter asserted is hearsay. . As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule." (Citation omitted; internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 812, 865 A.2d 1135 (2005); see also Conn. Code Evid. § 8-2. Section 8-3 (4) of the Connecticut Code of Evidence, however, recognizes an exception for "[a] statement of the declarant's then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future . . . ." Thus, a declaration indicating an "intention to do a particular act in the immediate future, made in apparent good faith and not for self-serving purposes, [is] admissible as an exception to the hearsay rule, to prove that the act was in fact performed." (Emphasis added.) State v. Santangelo, 205 Conn. 578, 591, 534 A.2d 1175 (1987); accord State v. Journey, 115 Conn. 344, 351, 161 A. 515 (1932). Conversely, a statement by the accused that he told another person shortly before the crime that he intended to go to a place distant from the scene of the crime was held inadmissible as a self-serving alibi. See State v. Goldberger, 118 Conn. 444, 455, 177 A. 216 (1934). In the present case, the defendant claims that his statement to Julia was admissible because it was evidence of his intention to go to Meriden and, therefore, admissible as proof that he, in fact, went to Meriden during the time of the commission of the crime. As such, the only relevance of this testimony would have been as an alibi that he was traveling to Meriden with Rooty when the crime was committed in Hartford. Applying the foregoing principles, we conclude that the court properly excluded the defendant's statement on hearsay grounds because it was a self-serving alibi that was not made in good faith. See id. Defense counsel originally informed the court that Rooty would give alibi testimony that, after the defendant left Julia's residence, she and the defendant drove in her Neon to Meriden for the prnpose of picking up her children. Immediately prior to Julia's testimony, however, defense counsel informed the court, outside the presence of the jury, that Rooty would not be giving the anticipated alibi testimony because she had told defense counsel in an interview the previous evening that she was not with the defendant at the time of the shooting, after she dropped him off at Julia's residence. Furthermore, the defendant had unsuccessfully sought to have Rooty testify that she was driving her Neon in the north end of Hartford at the time of the crime. In light of these developments, subsequent testimony that the defendant told Julia that he intended to go to Meriden, implicitly with Rooty in her Neon, could not have been offered in good faith or for a purpose that was not self-serving. Thus, the defendant's statement to Julia did not properly come within the hearsay exception for statements of then-existing state of mind. Accordingly, the trial court properly excluded Julia's testimony regarding the defendant's statement. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the state's sentencing claim and the defendant's claim regarding instructional impropriety. In this opinion the other justices concurred. We granted the state's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the defendant was entitled to a new trial because the trial court's ruling improperly precluded his proffered alibi evidence under Practice Book § 40-21?" State v. Tutson, 271 Conn. 935, 936, 861 A.2d 511 (2004). There is no indication in the record as to the date that the state received the report. In her interview, Julia stated that, upon returning home from grocery shopping between 12:30 and 1 p.m. on the day of the shooting, she saw the defendant's girlfriend sitting in a white Dodge Neon parked outside her residence. Thereafter, when Julia entered her residence, she found the defendant visiting with her sons, Terrell Thomas and Tyrone Thomas. The defendant greeted her warmly but told her that his girlfriend was waiting outside in the car and that he could not stay long because they had to pick up his girlfriend's children. He departed a short time later. The investigator's report indicated that the interview was with Tyrone Thomas, Julia's other son. The defense stated at trial, however, that the report was incorrect and that the interview was with Terrell. Terrell was a close friend of the defendant's who lived in Alabama and was visiting Julia during the last week of March, 2001, at the time the crime was committed. In his telephone interview, Terrell confirmed that the defendant was visiting Julia's home at approximately 1 p.m. on the day of the shooting while the defendant's girlfriend waited outside in the car. Terrell also confirmed that the defendant did not stay long because he and his girlfriend had to pick up her children in another town and that he had accompanied the defendant and his girlfriend during the trip. The defendant argued that the two eyewitnesses, Molina and Pagan, improperly identified him as the driver of the vehicle involved in the shooting because he was at another location at the time of the shooting. State v. Tutson, supra, 84 Conn. App. 615. In support of this argument, defense counsel's cross-examination of Pagan revealed certain inconsistencies in his testimony and the fact that Pagan had discussed with Molina the identity of the person driving the Neon after the shooting occurred. Id., 616. The defense thus suggested that "Molina's memory had been influenced by Pagan's version of the events . . . ." Id., 618. Molina also testified that he had smoked marijuana two weeks prior to the shooting and that, since his hospitalization for wounds caused by the shooting, he sometimes had bad migraine headaches and could not "think straight." Id. Finally, the testimony of Alan Wu, director of Hartford Hospital's chemistry and toxicology laboratories, and Rocco Orlando III, Molina's attending physician, called into question Molina's credibility as well as his ability to recall accurately the identity of the Neon's driver. Id., 619. The court further explained: "We're right back to where we were. To me, the most clear-cut defense is an alibi defense. And the law requires that you assert it with specificity. It's a very simple defense. But in its simplicity, it's also a very damaging defense against the state because it says the defendant . is elsewhere. . . . [TJhere's an issue of whether you gave proper notice. The state says you didn't. I agree with the state. You didn't. . . . Now, you're trying to put it in — I don't mean this in a negative way, but through the back door, that he's at [Julia's residence] from 1 to 2 [p.m.]. . . . [W]e have what we call inferences that I've explained to the jury. . . . [T]he only inference [the jury] can draw [is that] you're asserting an alibi. . . . You're not labeling it that but you're asserting an alibi that [Rooty] dropped [the defendant] off at 1 [p.m.]. She went to do whatever business she had and she comes back to [Julia's residence] at 2 [p.m.]. . . . And he's there. . . . [T]he reasonable inference to draw is that he was there between 1 and 2 [p.m.]." Defense counsel noted that Rooty would testify that she was driving her Neon in the north end of Hartford around the time of the shooting. The court concluded: Tm not going to, under these circumstances, the totality of the circumstances, where this morning I was ready to invite, to hear the so-called alibi witness and, over the state's strong objection that [it] had no notice, I was going to invite the [state], if [it] . . . wanted, to interview the witness, see if [it] wanted a continuance. And under that scenario, we were under the impression that, based on the investigative report of April 19, 2001, that the witness was going to say that [she and the defendant] were in transit between Meriden and New Haven until about 4 [p.m.]. I invited that The defense said, 'Nope, we're not going to use her for an alibi.' The testimony of leaving him off at [Julia's residence] at 1 [p.m.] and picking him up . at 2 [p.m.] is in the nature of [an] alibi. The only inference the jury can reasonably make is [that], between 1 and 2 p.m., he's at [Julia's residence]. That's [an] alibi. "As far as . . . Rooty . . . having the vehicle between the hours in question, that's part of the alibi because, if the car's elsewhere, he's elsewhere. And that wasn't claimed by the defense. I gave [the defense] every opportunity to give notice, including pressing the defense [two days ago] [until] 3 [p.m.] when defense counsel said: 'Well, they were en route to Meriden to New Haven [until] 4 p.m.' And I still was going to entertain that type of testimony. But now I think the court can no [longer] accommodate the defense under the totality of the circumstances. "Also I gave . . . some lenience to allow [the defense] to put in [its] alibi if it was consistent with the investigative report that was given to the state. This is inconsistent . . . You can't get around, and I'm using your words 'getting around the alibi,' in this way. It's inappropriate; it's improper. If there's a legitimate alibi, you have a duty to put it forward. And I have a duty to put it before the jury." On appeal to the Appellate Court, the defendant did not raise any issue with respect to the trial court's ruling to exclude Rooty's testimony that she picked the defendant up from Julia's residence at 2 p.m. Other authorities and jurisdictions have defined an alibi even more precisely to include the physical impossibility of the defendant's presence at the crime scene. See, e.g., 21 Am. Jur. 2d 286, Criminal Law § 221 (1998) ("[w]hile the accused must show that he or she was at another specified location when the crime was committed, there is no minimum or threshold quantum of physical separation necessary for a defense to constitute an alibi, so long as the separation makes it impossible for the defendant to have committed the crime"); 23 C.J.S. 402, Criminal Law § 1113 (1989) (alibi evidence "tends to show the impossibility, or the improbability, of the presence of [the] accused at the time of the commission of the crime"); Black's Law Dictionary (8th Ed. 2004) (defining "alibi" as "[a] defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time"); see also Wycoff v. State, 382 N.W.2d 462, 472 (Iowa 1986) (alibi asserted to prove not only that defendant was not present, but that "he was at another place so remote or under such circumstances that he could not have been present" [internal quotation marks omitted]); Locke v. State, 943 P.2d 1090, 1093 (Okla. Crim. App. 1997) (successful assertion of alibi requires that evidence show that, "at the very time of the commission of the crime . . . the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed" [internal quotation marks omitted]); Commonwealth v. Mikell, 556 Pa. 509, 517, 729 A.2d 566 (1999) (alibi defense "places the defendant at the relevant time at a different place than the scene [of the crime] and so removed therefrom as to render it impossible for him to be the guilty party" [internal quotation marks omitted]). Section 17-16-5 (a) of the Official Code of Georgia provides: "Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied." (Emphasis added.) The emphasized language is identical in all material respects to the language in Practice Book § 40-21. We note that this assumption requires a rather significant leap of faith in light of the fact that the final "version" of Rooty's proffered testimony, namely, that she dropped the defendant off at Julia's residence between 12:30 and 1 p.m. and did not pick him up until 2 p.m., represented a complete reversal from the alibi testimony initially proffered by the defense that she waited for the defendant outside Julia's residence in her Neon while he visited with Terrell and Tyrone, that he left Julia's residence around 1:15 p.m., and that he accompanied her when she drove to Meriden and New Haven to pick up her child. Moreover, the original version of Rooty's testimony was consistent with the investigative report, which the defendant had described as written notice of his alibi defense. When defense counsel later indicated that Rooty would not be giving testimony consistent with the report, the court observed that the defense seemed to be "playing a game . . . ." Defense counsel ultimately conceded that she was trying to "get around the alibi issue problem" by offering Rooty's changed testimony regarding the location of the Neon in the north end of Hartford at the time the crime was committed. It is also notable that neither version of Rooty's proffered testimony was consistent with her statement to Detective Weaver shortly after the shooting that she had given the defendant permission to use the Neon on the morning of the shooting and had no knowledge regarding its whereabouts until Weaver contacted her in the aftermath of the crime. Moreover, Rooty's proffered testimony would have been inconsistent with the actual testimony of Julia, one of the defendant's key witnesses, that the defendant left her residence minutes before the shooting to go with Rooty to pick up her child in Meriden and New Haven. The serial submission of various alibis before and during the trial strongly suggests fabrication. The defendant, who was arrested within hours of the alleged crime, in all likelihood knew where he was in the preceding hours and knew who, if anyone, would be able to verify his alibi. Thus, the submission to the court of conflicting alibis indicates that Rooty's testimony would not have been truthful. Practice Book § 84-11 provides in relevant part: "(a) Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. . . ." The defendant sought permission, on December 13, 2004, to file an untimely statement of an alternative ground for affirming the Appellate Court's judgment, which this court granted on January 3,2005. The defendant claimed, as an alternative ground for affirmance, that "[t]he trial court denied [him] his constitutional right to present a defense when it excluded his statement made shortly before the shooting that he intended to drive to Meriden [which] was admissible as state of mind evidence to show his [then-existing] intention to do a future act and [which] would have supported his alibi that he was not in the south end of Hartford at the time of the shooting." Although this issue was addressed by the parties in their Appellate Court briefs, that court declined to address the issue in light of its reversal of the trial court's judgment on another ground. See State v. Tutson, supra, 84 Conn. App. 611 n.1. Section 8-3 of the Connecticut Code of Evidence provides in relevant part: "The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness: "(4) Statement of then-existing mental or emotional condition. A statement of the declarant's then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed. . . ." The defendant claimed in the Appellate Court that the trial court's instructions impermissibly had allowed the jury to find him guilty of attempt to commit murder under the doctrine of transferred intent. See State v. Tutson, supra, 84 Conn. App. 611 n.2. The Appellate Court did not address that issue in light of its conclusion that a new trial was warranted on other grounds. Id.

The plaintiffs petition for certification for appeal from the Appellate Court, 94 Conn. App. 789 (AC 26204), is denied.

The plaintiffs petition for certification for appeal from the Appellate Court, 94 Conn. App. 97 (AC 26044), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 93 Conn. App. 527 (AC 24295), is granted, limited to the following issue: "Did the Appellate Court properly dismiss the defendant's appeal from the judgment revoking his probation as moot?"

The plaintiffs petition for certification for appeal from the Appellate Court, 94 Conn. App. 79 (AC 25913), is granted, limited to the following issue: The Supreme Court docket number is SC 17651. John W. Lemega and Aubrey E. Ruta, in support of the petition. William J. Melley III, in opposition. Decided April 12, 2006 "Did the Appellate Court properly conclude that Florida law governed the interpretation of the automobile liability policy issued by the defendant?"

The petitioner Edward Vines' petition for certification for appeal from the Appellate Court, 94 Conn. App. 288 (AC 24789), is denied. VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.

Opinion BISHOP, J. This case demonstrates the tension between the traditional and time-honored power of the people to legislate through referendum and the mandate requiring elected representatives to discharge their duties in accordance with the law. In this matter, the plaintiff, Linda Palermo, appeals from the judgment of the trial court rendered in favor of the defendants. On appeal, the plaintiff claims that the court improperly rejected her claim seeking to enjoin the town of Strat-ford from implementing the town budget for the fiscal year 2004-2005. We affirm the judgment of the trial court. The following facts and procedural history, as set forth by the court in its memorandum of decision, are relevant to the plaintiffs appeal. On March 26, 1991, a referendum was held in the town of Stratford. As a result of that referendum, Stratford Town Ordinance § 14-29 was adopted, effective March 27, 1991. The operative effect of § 14-29 was to establish a 2 percent budget cap over the preceding year's budget. The plaintiff commenced this action to compel the town, acting thr ough its town council, to adhere to the budget cap established by the ordinance. In her verified complaint, the plaintiff alleged that despite the adoption of § 14-29, the fiscal budget for the year 2004-2005, which had been passed on May 17, 2004, was a 6.053 percent increase over the previous year's budget. The plaintiff sought an order from the court enjoining the town from implementing the budget for the fiscal year 2004-2005. Specifically, the plaintiff sought to have the budget immediately held in abeyance in violation of § 14-29 of the town charter. The plaintiff also sought reimbursement of all out-of-pocket expenses she incurred by bringing this action. The defendants filed an answer and a special defense alleging that § 14-29 is invalid and unenforceable. Subsequently, after the issues were briefed, the court issued its opinion agreeing with the defendants. In its memorandum of decision filed December 13, 2005, the court found, inter alia, that (1) the provisions of § 14-29, as they relate to the 2 percent budget cap, are invalid in that they exceed the legislative power of the electorate, and (2) § 14-29 is void for vagueness as written because it is both factually and legally impossible to follow the direction of its provisions. Accordingly, the court denied the plaintiffs petition for injunctive relief. This appeal followed. The plaintiffs sole claim on appeal is that the court improperly determined that § 14-29 was invalid and consequently denied her request to enjoin the defendants from implementing the budget for the fiscal year 2004-2005. In support of her claim, the plaintiff argues that § 14-29 is a valid ordinance and accordingly should be adhered to by town officials when formulating and implementing the budget for the upcoming year. We are not persuaded. One of "[t]he governing principles for our standard of review as it pertains to a trial court's discretion to grant or deny a request for an injunction [is that] [a] prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court's decision must stand." (Citations omitted; internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) O'Connor v. Board of Education, 90 Conn. App. 59, 63-64, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005). "[A] town charter, whether adopted by special act of the General Assembly or . . . under the Home Rule Act; General Statutes § 7-188; constitutes the organic law of the municipality. . It is well established that a [town's] charter is the fountainhead of municipal powers. . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised." (Citations omitted; internal quotation marks omitted.) West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983). "[A] charter bears the same general relation to the ordinances of the city that the constitution of the state bears to the statutes." 5 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2004) § 15.17. "An ordinance is a legislative enactment of a municipality. . It designates a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct relating to the corporate affairs of the municipality." (Citation omitted; internal quotation marks omitted.) Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19 n.7, 523 A.2d 467 (1987); see also 5 E. McQuillin, supra, § 15.1. Accordingly, when considering the validity of ordinances, one must also consider the principles that "[n] either the municipal legislative body nor the mayor may disregard charter mandates or procedures at any time, nor do past variations and looseness, be they occasional or frequent, lend an aura of respectability or legality to any other mode of practice. The proposition is self-evident, therefore, that an ordinance must conform to, be subordinate to, not conflict with, and not exceed the charter . Ordinances must not only conform with the express terms of the charter, but they must not conflict in any degree with its object or with the purpose for which the local corporation is organized. . . . Consequently, an ordinance violative of or not in compliance with the city charter is void." 5 E. McQuillin, supra, § 15.17; see West Hartford Taxpayers Assn., Inc. v. Streeter, supra, 190 Conn. 736. Therefore, an examination of the relevant provisions of the town charter is critical to the resolution of this matter. Section 8.3.1 of the Stratford town charter provides: "The electors shall have the power at their option to approve or reject at the polls, any measure, resolution, order or vote passed by the council or submitted by the council to a vote of the electors, excepting measures levying a tax for or appropriating money to defray the general expenses of the town government or any existing department thereof . Such powers shall be known as the referendum, which power shall be invoked and exercised as herein provided. . All measures, save those hereinabove specifically excepted . . . shall be subject to the referendum in the same manner as other measures." (Emphasis added.) In the present case, both the plaintiff and the defendants refer to and rely on the provisions of the town charter to support their arguments concerning the validity of § 14-29. The plaintiff refers to the initial and general language of § 8.3.1 to bolster her argument that § 14-29 constitutes a valid exercise of the electorate's power of referendum. On the other hand, although the defendants concede that the electors have been granted express powers of referendum by special act of the legislature, they claim, that such power is subject to explicit limitation. The defendants refer to the specific language of § 8.3.1 and argue that §14-29 is invalid in that it purports to control the budgetmaking process, which directly conflicts with the town charter provisions of § 8.3.1. On the basis of our review of the court's memorandum of decision and § 8.3.1 of the town charter, we conclude that the court did not abuse its discretion in denying the plaintiffs request for an injunction. The provisions of § 8.3.1 expressly state the roles of town officials and the electorate as they relate to the town's legislative processes. The powers given to the electorate pursuant to § 8.3.1 explicitly exclude the power of referendum concerning budgetary matters. Therefore, the court correctly ruled that § 14-29 is invalid, as a matter of law, because when the electorate adopted § 14-29 by way of referendum, it exceeded the powers expressly granted to it in the town charter. Moreover, the town charter contains other specific budgetary provisions that require the town council to pass an annual appropriation ordinance, which must be based on the budget submitted by the town manager. As properly noted by the court, if the electorate could use the initiative and referendum process to initiate its own budget related ordinances, it would render the other methods and procedures concerning the budget and mandated by the charter completely ineffective. Accordingly, the court did not abuse its discretion in declaring the ordinance invalid and denying the plaintiffs request for an injunction. The judgment is affirmed. In this opinion the other judges concurred. The defendants are Patricia Ulatowski in her official capacity as town clerk for the town of Stratford and eleven others, each of whom is a member of the Stratford town council, including its chairman, Joseph Crudo. Section 14-29 of the town of Stratford charter provides in relevant part that "[t]he rate of tax increase for the Town of Stratford shall be limited as follows: A. During any fiscal year, the increase in the amount of taxes levied shall not exceed the following: atwo-percent spending increase based on the amount of the budgeted expenditures for the last fiscal year." Section 6.2.1 of the town of Stratford charter provides in relevant part: "Not later than three months before the end of each fiscal year, the town manager shall prepare and submit to the council an annual budget for the ensuing fiscal year . . . ." Section 6.2.2 of the town of Stratford charter provides in relevant part: "The council shall annually pass an appropriation ordinance . . . based upon a budget submitted by the town manager. The appropriations made in such ordinance and the budget submitted by the town manager shall provide for the full fiscal year of the town."

Opinion BISHOP, J. The defendant, Michael E. Brown, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), unlawful restraint in the first degree in violation of General Statutes § 53a-95, threatening in the second degree in violation of General Statutes § 53a-62, assault in the third degree in violation of General Statutes § 53a-61 and breach of the peace in the second degree in violation of General Statutes § 53a-181. On appeal, the defendant claims that he was denied his right to due process because the court failed to voir dire the jury adequately after an allegation of juror bias. We affirm the judgment of the trial court. The following facts are relevant to our resolution of the issue on appeal. The defendant was arrested and charged in connection with an incident that occurred on the evening of September 20, 2002. The defendant entered pleas of not guilty and elected a jury trial. The evidentiary portion of the trial commenced on September 20, 2004, and the court delivered its final instructions to the jury on September 23, 2004. On September 24, 2004, the day the jury was due to begin its deliberations, a judicial marshal informed the court that he had overheard two jurors, C and S, discussing an encounter juror C had had with the defendant the day before, in which juror C alleged that the defendant had followed her home. The court informed counsel that it would address the issue of potential jury bias by questioning each of the jurors individually about the incident, asking them "how it has affected them, whether or not it will affect their ability to be impartial . . . whether or not they feel they can still be impartial in their deliberations and whether or not any of whatever has affected either individual jurors or the group will influence them in any way." Upon the request of defense counsel, the court also agreed to allow counsel to suggest additional questions for the court to ask each individual juror. The court, however, did not accede to defense counsel's suggestion that the marshal should also be questioned and that the jurors should be questioned as to how the information had been conveyed to them. The court began its canvass with juror C, who testified that on the previous day, after the court had adjourned, the defendant, his counsel and the jurors departed the courthouse in their vehicles at the same time, in the manner of a vehicular caravan. She stated that while the order of the cars changed as they drove and changed lanes, the defendant remained behind her car, and that juror S was behind the defendant and was "watching what happened." Juror C testified that the defendant's car remained behind hers while she exited the parking lot and drove on the highway. She also stated that when she changed lanes, the defendant changed lanes with her. She stated that she was very aware of the defendant's presence and that she felt very uncomfortable. Juror C testified that when she arrived at the courthouse on the next day, the day of the canvass, juror S asked her if she was "freaked out about what happened . . . ." She testified that she and juror S then discussed the incident. When asked by the court whether the incident would affect her ability to be fair and impartial, juror C replied: "I don't think it would affect me to be impartial. It's based on the facts. . . . I can't say that at 100 percent." The court then temporarily excused the juror and asked counsel if they had any additional questions. Both counsel responded that they had no further questions. When the court canvassed juror S, she acknowledged that she had discussed the incident with juror C and testified that she thought "it was kind of bizarre that . . . the jury would be let out at the same time as . . . the defendant." She stated that she did not think that it "was a very good process . . . ." When asked if, despite the incident, she would be able to be fair and impartial, she responded in the affirmative. The court temporarily excused the juror and inquired as to whether either counsel had additional questions. Both replied that they did not. The court then canvassed the remaining members of the jury panel and the alternate jurors. Although all members of the jury and the alternates appeared to be aware of the incident, when asked by the judge if the incident would affect their ability to be fair and impartial, each replied that it would not. After its preliminary questions to each individual juror and alternate, the court asked counsel if there were any additional questions counsel would like the court to ask. As requested by counsel, any additional questions were then posed to some of the jurors individually by the court before each was excused. After all the jurors and alternates were canvassed, the court asked counsel if "anyone wish[ed] to be heard." Defense counsel requested a ten minute recess to consider what to "ask for if anything," and the court granted the recess. After the recess, the court stated: "The court . . . has conducted an in chambers conference with counsel and, based on the testimony that was received in the polling of each of the jurors, it is the court's decision to excuse [juror C]. . . . And then of course, the court would further instruct the jurors as to the fact that nothing outside of the courtroom can be considered in their deliberations." Defense counsel then moved for a mistrial on the ground that that the entire jury panel had been tainted by the incident. Specifically, defense counsel took issue with juror S, stating that the juror "must have thought that [the incident] was more than mere coincidence . . . ." Counsel continued: "[Although I stated [that] I didn't have any more questions that I wanted the court to ask her, maybe that is something the court should ask, whether or not she thought it was more than mere coincidence. Because if you thought it was more than mere — less than coincidence, why would you bring it up with someone?" The court denied the motion for a mistrial, stating that it had "no indication from [juror S] that [the incident] was affecting her." Indeed, the court found that juror S's comments suggested that she took issue only with the timing and manner in which the court dismissed the jurors. The court then selected an alternate juror through a lottery process and instructed the jury that "nothing that happens outside of this courtroom may be permitted, may be used in your deliberations or your consideration of this case." The jury deliberated and found the defendant guilty on all charges. This appeal followed. The sole issue for our review is whether the court failed to voir dire the jury adequately to determine the existence of juror bias. We first set forth the principles that guide our review of the defendant's claim. "To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment . a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. . . . "Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations [or the possibility] of jury [bias or] misconduct will necessarily be fact specific. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court's review of alleged [or possible] jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate [the possibility] of juror misconduct or bias . . . we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. . . . "[A] trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations [or the possibility] of jury misconduct [or bias]: (1) the criminal defendant's substantial interest in his constitutional right to atrialbefore an impartial jury; (2) the risk of deprivation of the defendant's constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state's interests of, inter alia, jury impartiality, protecting jurors' privacy and maintaining public confidence in the jury system. . . . "Consequently, the trial court has wide latitude in fashioning the proper response to allegations [or the possibility] of juror bias. . . . [W]hen . . . the trial court is in no way responsible for the [possible] juror misconduct [or bias], the defendant bears the burden of proving that the misconduct [or bias] actually occurred and resulted in actual prejudice. . . . "[Wjhere the defendant claims that the court failed to conduct an adequate inquiry into possible juror bias or prejudice, the defendant bears the burden of proving that such bias or prejudice existed, and he also bears the burden of establishing the prejudicial impact thereof." (Citations omitted; internal quotation marks omitted.) State v. Sinvil, 90 Conn. App. 226, 240-41, 876 A.2d 1237, cert. denied, 275 Conn. 924, 883 A.2d 1251 (2005). In this instance, our review of the record leads us to the conclusion that the court's voir dire was adequate. Additionally, the record does not support the defendant's claim that the jury had become tainted by knowledge of the incident involving the defendant and some of the jurors. Consequently, the defendant has not shown that he was harmed by juror bias. The record reflects that defense counsel was given, and availed himself of, the opportunity to interject additional questions to the jury during the court's voir dire, and that the answers given to these questions by the jurors and alternates who were not excused from the case do not demonstrate bias against the defendant. Indeed, the answers elicited from the jury during the court's inquiry provided the court with ample basis for its decision regarding the continuing fitness of the remaining jurors and alternates. Our review of the record convinces us that the court properly determined that juror C was the only juror who should be excused from the panel. In sum, in dismissing juror C while retaining the other jurors and alternates, the court did not abuse its discretion. The judgment is affirmed. In this opinion the other judges concurred. To protect the identity of the jurors, we refer to them by the initials C and S. See State v. Newsome, 238 Conn. 588, 624 n.12, 682 A.2d 972 (1996). The defendant also claims that because the jury was tainted by the incident, the court improperly denied his motion for a mistrial. Because the record does not support the defendant's claim that the jury was tainted, we do not reach his subordinate claim that the court should have declared a mistrial.

Opinion FLYNN, C. J. The defendant, William P. Slade, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), possession of a weapon in a motor vehicle in violation of General Statutes § 29-38 (a), criminal possession of a revolver in violation of General Statutes § 53a-217c, possession of drug paraphernalia with intent to use in violation of General Statutes § 21a-267 and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that the trial court improperly denied his motion in limine to preclude testimony regarding the loaded and cocked status of the revolver and the capability of the revolver to operate in a double action mode. We affirm the judgment of the trial court. The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. On May 1, 2004, from a second floor window, an off-duty police officer, Detective Luis Ramos, observed the defendant approach a Chevrolet Tahoe parked on the side of a road in Danbury. The defendant then removed a silver colored revolver from either his waistband or pocket, placed the revolver on the passenger side floor of the vehicle through the open passenger side window and walked away. Joseph Sta-ton, the driver of the motor vehicle, covered the revolver with a towel. Ramos notified the police department about his observations and initiated communications with Officer Michael Georgoulis, one of the responding officers. After approximately fifteen to thirty minutes had elapsed, the defendant returned to the parked vehicle and sat in the passenger seat. Staton testified that the defendant, upon entering the vehicle, retrieved the gun from the floor, and then Staton drove the vehicle away. Staton stated that while he was in the vehicle with the defendant and as the police were pursuing the vehicle, the defendant held the revolver in his hand and was "kissing it" with his lips. After following the departing vehicle for a short distance, the responding officers initiated a stop and ordered the defendant and Staton to exit the vehicle. Upon exiting the vehicle, the defendant, who remained in the open passenger side doorway, repeatedly glanced at the floor of the vehicle and then at the officers. Eventually, the defendant approached the officers. The officers conducted a patdown search and found a glass pipe, which typically is used to smoke crack cocaine, and an empty plastic bag. After the defendant and Staton were detained in police cars, the officers recovered a silver colored, loaded .38 caliber Ruger double action revolver with a barrel of less than twelve inches in length from underneath the front passenger seat of the vehicle. When the officers retrieved the revolver from the vehicle, the hammer on the revolver was pulled back and cocked. The state charged the defendant with carrying a pistol or revolver without a permit, possession of a weapon in a motor vehicle, criminal possession of a revolver, possession of drug paraphernalia with intent to use and possession of narcotics. On November 8, 2004, the defendant filed a motion in limine to preclude testimony regarding the type of ammunition found in the seized revolver, the capability of the revolver to operate in a double action mode and the possibility that the revolver was cocked inside the vehicle prior to the motor vehicle stop. The prosecutor, in arguing against the defendant's motion in limine, incorrectly asserted that the operability of the revolver was an essential element of one of the charges against the defendant, and therefore stated that the evidence about the cocked and loaded status of the revolver was relevant to show that the revolver was operable. The court granted the defendant's motion in limine, in part, after concluding that testimony as to the type of ammunition found in the revolver was irrelevant. However, the court denied the defendant's motion in limine with respect to the evidence of the loaded, cocked and double action status of the revolver. Subsequently, the jury returned a verdict of guilty on all five counts, and the court sentenced the defendant to a total effective term of eleven years imprisonment. This appeal followed. Additional facts will be set forth as necessary. The defendant's issue on appeal is twofold. First, the defendant argues that the court improperly denied his motion in limine to preclude testimony that the revolver was loaded, the hammer was cocked and the revolver was a double action revolver because this evidence pertains to the operability of the revolver, which was not relevant to establishing the elements of § § 29-35 (a), 29-38 (a) and 53a-217c. Further, the defendant contends that the prejudicial effect of the evidence outweighed any potential probative value. We conclude that the court's partial denial of the defendant's motion in limine was proper and reflected a sound exercise of discretion. We first set forth the applicable standard of review. "It is well established that this court affords great deference to a trial court's evidentiary rulings." State v. Efrain M., 95 Conn. App. 590, 596, 899 A.2d 50, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). "The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Schmidt, 92 Conn. App. 665, 675, 886 A.2d 854 (2005), cert. denied, 277 Conn. 908, 894 A.2d 989 (2006). "A party is entitled to offer any relevant evidence to aid the trier of fact in its determination, as long as the evidence is not unfairly prejudicial." (Internal quotation marks omitted.) State v. Marshall, 87 Conn. App. 592, 601, 867 A.2d 57, cert. denied, 273 Conn. 925, 871 A.2d 1032 (2005). " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." Conn. Code Evid. § 4-1. "[E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible." (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 645, 737 A.2d 104 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). However, relevant evidence may be excluded if the court determines that "its probative value is outweighed by the danger of unfair prejudice . . . ." Conn. Code Evid. § 4-3. "Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Internal quotation marks omitted.) State v. Eastwood, 83 Conn. App. 452, 465, 850 A.2d 234 (2004). Having set forth our standard of review and the applicable legal principles, we now turn to the evidence in question. The defendant argues that because the state need not prove the operability of a revolver in a prosecution for a violation of § 29-35 (a), § 29-38 (a) or § 53a-217c, the testimony concerning the cocked and loaded status of the revolver was irrelevant. As a preliminary matter, we note that the defendant correctly states that the three weapons charges for which he was convicted do not require that the revolver be operable. However, notwithstanding the defendant's arguments to the contrary, we conclude that the evidence was relevant in that it assisted the trier of fact in determining whether the defendant violated § 29-35 (a), 29-38 (a) and 53a-217c. The following additional facts inform our review. In addition to testifying about the cocked and loaded status of the revolver upon its retrieval from the motor vehicle, Georgoulis testified that the Ruger was a double action revolver, capable of operating in either a single action or double action mode. Furthermore, there was expert testimony that when a revolver is in a single action mode, as it was in the present case, with a cocked hammer, fewer pounds of pressure are required to pull the trigger, and as a result of the decreased stability, people typically would not carry a revolver in this position. This testimony was relevant to establishing that the defendant knowingly had the revolver in the motor vehicle in violation of § 29-38 (a). In a prosecution for a violation of § 29-38 (a), the state has to prove that the defendant had knowledge of the revolver's presence in the vehicle. State v. Watson, 165 Conn. 577, 596, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). As a result, the evidence of the cocked hammer permitted the trier of fact to make a series of inferences that would assist it in determining whether the essential element of knowledge was satisfied. "It is within the province of the trier of fact to draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture. . . . The jury may base an inference on facts it finds as the result of other inferences." (Citations omitted; internal quotation marks omitted.) State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). Specifically, after listening to Ramos' testimony about how he observed the defendant remove the revolver from his waistband or pocket and to the expert testimony about the decreased stability of a revolver with a cocked hammer, the jury reasonably could have inferred that the defendant, when he was carrying the revolver on his person, did not have its hammer cocked in a single action mode. Moreover, because the police found the revolver in the vehicle with the hammer cocked, the jury then reasonably could have inferred that the defendant cocked the hammer of the revolver after placing the revolver in the vehicle. Consequently, these reasonable inferences, in conjunction with Sta-ton's testimony about the defendant holding the revolver in the vehicle, are relevant and could have assisted the fact finder in determining that the defendant had knowledge of the revolver's presence in the motor vehicle in violation of § 29-38 (a). Furthermore, the foregoing inferences also could tend to establish that the defendant violated § 29-35 (a), which prohibits a person from carrying a revolver on his person without a permit. Because § 29-35 (a) does not require proof that the defendant physically moved or transported the revolver; State v. Hopes, 26 Conn. App. 367, 374, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992); the inferences tending to demonstrate that the defendant cocked the revolver in the vehicle would show that the defendant carried the revolver in contravention of § 29-35 (a). Moreover, a prosecution for a violation of § 53a-217c requires that the state demonstrate, in part, that the defendant possessed a revolver. Again, the previously stated chain of inferences, stemming from the cocked status of the recovered revolver, could assist the trier of fact in determining that the defendant possessed the revolver by virtue of his exercise of dominion and control over the revolver in violation of § 53a-217c. We conclude, therefore, that the court reasonably could have concluded that the evidence concerning the cocked, loaded and double action status of the revolver was relevant and likely to assist the trier of fact. Having evaluated the relevance of the disputed evidence, we next turn to the defendant's claim that the court should have excluded the evidence as being unduly prejudicial to him. Specifically, the defendant argues that the testimony concerning the cocked hammer and the loaded revolver improperly aroused the emotions of the jury by raising the inference that the defendant was a violent person prepared to engage in a "shoot-out" with the police. When the court denied a portion of the defendant's motion in limine, thus permitting testimony relating to the cocked and loaded status of the revolver, the court implicitly found that the probative value of this evidence outweighed any potentially prejudicial effect. See State v. DeJesus, 194 Conn. 376, 383, 481 A.2d 1277 (1984) ("[i]mplicit in the court's admission of [the evidence] was a finding that their value as evidence outweighed any prejudicial effect they might have had on the jury"). As we have noted previously, the revolver evidence was relevant in that it could assist the trier of fact in determining whether the defendant violated § 29-35 (a), 29-38 (a) or 53a-217c, and, thus, the court reasonably could have concluded that the evidence had probative value to establish the required elements of carrying, knowledge or possession of a revolver, respectively. Balanced against the probative value of the evidence, we conclude that any prejudice resulting from the evidence of the loaded and cocked status of the revolver was minimal. Further, we are guided by the principle that on appeal a court's evidentiary ruling is entitled to every reasonable presumption in its favor and will be overturned only if the defendant can demonstrate a clear abuse of the court's discretion. Consequently, we conclude that the court, in denying a portion of the defendant's motion in limine, did not abuse its discretion because the admission of testimony concerning the revolver was not unduly prejudicial as it did not improperly arouse the emotions of the jury. We conclude that the court's evi-dentiary ruling reflected a sound exercise of discretion. The judgment is affirmed. In this opinion the other judges concurred. General Statules § 29-35 (a) provides in relevant part: "No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. ." General Statutes § 29-38 (a) provides in relevant part: "Any person who knowingly has, in any vehicle owned, operated or occupied by such person, any weapon, any pistol or revolver for which a proper permit has not been issued as provided in section 29-38 . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon, pistol or revolver, or machine gun in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . ." General Statutes § 53a-217c (a) provides in relevant part: "A person is guilty of criminal possession of a pistol or revolver, when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony or of a violation of subsection (c) of section 21a-279 or section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d Because the issue on appeal involves the admission of evidence describing the recovered revolver and its relevance to establishing the elements of the weapons offenses, the charges relating to possession of drug paraphernalia with intent to use and possession of narcotics are not affected. Although the prosecutor incorrectly believed that operability of the revolver was an element of at least one of the charged offenses, we conclude that the court did not abuse its discretion in denying in part the defendant's motion in limine. Despite the prosecutor's remarks in his closing argument that operability was a required element, the court, in its charge to the jury, did not state that the jury had to make a finding as to whether the revolver was operable. The evidence was capable of supporting an inference that the defendant knowingly possessed the revolver in the motor vehicle. See State v. Banks, 59 Conn. App. 112, 130, 755 A.2d 951 ("[t]here is nothing in . § 53a-217c . . . that suggests that the operability of the pistol or revolver is an element of the offense"), cert. denied, 254 Conn. 950, 762 A.2d 904 (2000); State v. Bradley, 39 Conn. App. 82, 90, 663 A.2d 1100 (1995) ("we note that the defendant incorrectly assumes that operability of a weapon is an element of the crime of carrying apistol without apermit"), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996); State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164 ("[njothing in § 29-38 remotely suggests that operability of the weapon is an element of the offense"), cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Georgoulis explained that a revolver in a single action mode is fired after the user manually cocks the hammer and then pulls the trigger. In contrast, a user can fire a double action revolver without manually cocking the hammer because the pulling of the trigger cocks the hammer and releases the hammer. The state must prove the following elements in a prosecution for a violation of General Statutes § 29-38: "(1) that the defendant owned, operated or occupied the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon." State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). "A defendant may be found guilty of carrying a pistol or revolver without a permit, in violation of § 29-35, if the state establishes that, at the time in question, the defendant had been carrying a pistol or revolver upon his or her person, without the proper permit, and that the defendant was not within his or her dwelling house or place of business." State v. Knight, 266 Conn. 658, 667, 835 A.2d 47 (2003). See footnote 3. General Statutes § 53a-3 (2) provides: " 'Possess' means to have physical possession or otherwise 1 o exercise dominion or coni rol over tangible property .''

Opinion SCHALLER, J. The plaintiff, Mark S. Urich, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Richard Fish, on the defendant's counterclaim. The plaintiff claims that the court improperly awarded the defendant (1) punitive damages and attorney's fees under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (2) prejudgment interest pursuant to General Statutes § 37-3a. We affirm the judgment of the trial court. The following facts and procedural history are relevant to the plaintiffs appeal. In 1993, the plaintiff sold a yachtto the defendant for the contractprice of $474,000. The defendant withheld payment of $20,000, claiming that certain items had been removed from the yacht prior to delivery and that required remedial work had not been completed. In 1994, the plaintiff commenced the present action seeking recovery of the balance of the contract price, damages under CUTPA and prejudgment interest. The defendant filed a counterclaim, alleging, inter alia, that the plaintiffs removal of items that had been included in the contract price constituted an unfair and deceptive practice under CUTPA. The case was tried before the court, Hon. Anthony V. DeMayo, judge trial referee, and a memorandum of decision was issued on March 30, 1998. The court rendered judgment in favor of the plaintiff on the complaint in the amount of $20,000 and for the defendant on the counterclaim in the amount of $10,605.72, together with punitive damages and attorney's fees. Both parties appealed to this court, which affirmed the judgment on the plaintiffs complaint and reversed the judgment on the defendant's counterclaim. The case was remanded for a new trial on certain counts of the counterclaim. Urich v. Fish, 58 Conn. App. 176, 753 A.2d 372 (2000). At the conclusion of the retrial, the court, Blue, J., issued a memorandum of decision on November 27, 2000, concluding that the value of items removed from the yacht by the plaintiff totaled $17,025.04. After a supplemental hearing, the court additionally awarded the defendant punitive damages and attorney's fees under CUTPA, and prejudgment interest pursuant to § 37-3a. The court rendered judgment in favor of the defendant on his counterclaim, and the plaintiff appealed from that judgment. Our Supreme Court concluded that the trial court had improperly admitted certain evidence, reversed the judgment and remanded the case for a new trial. Urich v. Fish, 261 Conn. 575, 804 A.2d 795 (2002). A new trial on the defendant's counterclaim was held before the court, Hon. Frank S. Meadow, judge trial referee, over the course of ten days in May and June, 2004. In its memorandum of decision issued on November 9, 2004, the court rendered judgment in favor of the defendant and awarded damages for the missing items in the amount of $12,427.41, prejudgment interest pursuant to § 37-3a in the amount of $14,395, punitive damages pursuant to CUTPA in the amount of $20,000 and attorney's fees pursuant to CUTPA in the amount of $25,000. This appeal followed. I The plaintiff claims that the court improperly awarded punitive damages and attorney's fees under CUTPA. The plaintiff argues that General Statutes § 42-llOg (d) restricts an award of attorney's fees to the plaintiff. The plaintiff further argues that the defendant is not the prevailing party and did not suffer any ascertainable loss, which are statutory prerequisites to the recovery of such damages. Specifically, the plaintiff claims that because its judgment of $20,000, affirmed in Urich v. Fish, supra, 58 Conn. App. 176, is greater than the defendant's award of $12,427.41, the plaintiff alone was the prevailing party because of its "net" judgment of $7572.59. Those claims were not raised in the trial court. In the plaintiff's posttrial brief, he claimed that CUTPA damages should not be awarded because the defendant failed to submit any evidence that the plaintiff engaged in "wanton, willful, malicious, intentional or reckless" misconduct. The court addressed that issue in its decision. It did not address the issues raised by the plaintiff on appeal because they were never presented at trial. "We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim." (Internal quotation marks omitted.) Swerdloff v. Rubenstein, 81 Conn. App. 552, 554, 841 A.2d 222 (2004). The plaintiff had ample opportunity to raise his claim in the trial court but failed to do so, and for this court to now consider such claim would amount to trial by ambuscade, unfair both to the trial court and to the opposing party. See id., 554-55. We therefore decline to review those claims. II The plaintiff next claims that the court improperly awarded the defendant prejudgment interest pursuant to § 37-3a. Specifically, the plaintiff argues that because his judgment on the complaint was greater than the defendant's judgment on the counterclaim, the court could not properly conclude that the plaintiff wrongfully detained money owed to the defendant after it became due and payable. See Northrop v. Allstate Ins. Co., 247 Conn. 242, 255, 720 A.2d 879 (1998). The court rendered judgment in favor of the plaintiff on his complaint in the amount of $20,000 in the first trial of this matter, and that judgment was affirmed in Urich v. Fish, supra, 58 Conn. App. 176. At the time of oral argument, it was undisputed that the defendant had not yet paid the $20,000 to the plaintiff. The plaintiff argues that the defendant's judgment of $12,427.41 must be set off against the plaintiffs judgment of $20,000, thereby leaving the defendant without a recovery on which prejudgment interest could be awarded. The following additional procedural history is relevant to the resolution of this issue. In the first trial of this matter, the court did not award either party prejudgment interest. With respect to the plaintiff, after rendering judgment in his favor on the complaint in the amount of $20,000, the court stated: "In view of the fact that this sum has been the subject of attack via the counterclaim, the $20,000 or any part of it does not become 'payable' until the court acts on the defendant's claims. Consequently, no interest will be allowed on any net award in favor of the plaintiff on the complaint." In his appeal from the judgment in favor of the defendant on the counterclaim, the plaintiff did not raise the issue of the court's denial of his request for prejudgment interest. That part of the court's judgment remained undisturbed, and there has been a conclusive determination that the plaintiff is not entitled to prejudgment interest on the amount awarded on his complaint. Only the second and third counts of the defendant's counterclaim were retried in the second trial of this matter. The court awarded the defendant damages for the missing items from the yacht, punitive damages and attorney's fees. In addition, in its discretion, the court awarded the defendant prejudgment interest pursuant to § 37-3a. The plaintiff appealed, and that judgment also was reversed. Urich v. Fish, supra, 261 Conn. 575. When the case was tried for the third time, resulting in the judgment that is the subject of this appeal, the court awarded the defendant damages for the missing items, punitive damages, attorney's fees and prejudgment interest pursuant to § 37-3a. The plaintiff has not claimed that the court abused its discretion in awarding prejudgment interest, nor has he challenged the actual amount of the award. Rather, he claims that no such interest can be awarded because the amount of his judgment on the complaint exceeds the amount of the defendant's judgment on the counterclaim. The plaintiff cites no case law, statute or rule of practice that supports his position. Here, prejudgment interest was awarded on the defendant's counterclaim. A counterclaim is an independent action. Practice Book § 10-10, 10-54, 10-55; Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn. App. 419, 428, 840 A.2d 578, cert. denied, 268 Conn. 922, 846 A.2d 881 (2004). In its discretion, the court declined to award the plaintiff prejudgment interest on his claims but granted the defendant's request to award prejudgment interest on his claims. The court properly refused to set off the defendant's award against the plaintiffs award. To set off one claim against the other before calculating interest would, in effect, award § 37-3a interest to the plaintiff when the plaintiff had not been awarded such interest and was not entitled to such interest. See id., 429. Accordingly, the plaintiffs claim must fail. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 42-110b (a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 37-3a provides in relevant part that "interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . as damages for the detention of money after it becomes payable. . . Moreover, even if the plaintiff claimed that he was entitled to prejudgment interest on his award, he would not prevail on this issue. "If opposing parties both seek interest under [General Statutes] § 37-3a on related contractual claims, those claims and interest cannot be set off against each other before interest is calculated unless the court finds that interest should be awarded at the same rate and commencing from the same date for both claims." Ceci Bros., Inc. v. Five Twenty-One Corp., supra, 81 Conn. App. 429 n.8. No such determination was ever made by the court or requested by the plaintiff.

Opinion MIHALAKOS, J. The plaintiff, Jane Saccu, appeals from the judgment rendered by the trial court dismissing her appeal from an order of the Probate Court for the district of Orange. The plaintiff claims that the trial court improperly upheld the Probate Court's order (1) granting the motion filed by the defendant Richard Bar-retta for her removal as executrix of the estate of Giacomo Barretta, and (2) requiring her to reimburse the estate for the costs expended in connection with repairs to the roof, porch and stairs of the residential property at 454 Howellton Road in Orange (property). We affirm in part and reverse in part the judgment of the trial court. The following facts and procedural history are relevant to the plaintiffs appeal. The decedent, Giacomo Barretta, died on April 22,2001, and was survived by five children, the plaintiff, the defendant, Charles Barretta, Louis A. Barretta and Marie Ryder. The decedent left a will that appointed the plaintiff as executrix of his estate. The will devised a life estate in the property to the plaintiff and Charles Baretta on the condition that they pay the real estate taxes and costs associated with ordinary maintenance and repairs of the property. A remainder interest in the property was devised to the defendant and Ryder. The will further provided that the residuary estate was to pass to the defendant, the plaintiff and Ryder. Charles Barretta, who was living at the property at the time of his father's death, died in October, 2001. Shortly thereafter, the plaintiff occupied the property and undertook the task of substantially repairing the roof and rebuilding the porch and stairs. As executrix, she filed an accounting with the Probate Court in January, 2004, and a revised accounting in March, 2005, both of which indicated that she had used estate funds to pay for the repairs, as well as for the property taxes for the years 2001 through 2003. The defendant objected to the accounting and also filed motions to surcharge and to remove the plaintiff as fiduciary. On June 15, 2004, following a hearing on the defendant's objection and subsequent motions, the Probate Court found that the plaintiff had breached her fiduciary obligation as executrix when she used estate funds to pay for the repairs to the property and for the property taxes. The Probate Court ordered that the plaintiff (1) be removed as executrix and (2) reimburse the estate for the funds expended for the repairs and tax obligations. It also ordered the plaintiff to file a revised accounting within one month. The plaintiffs motion to appeal from the Probate Court's order was granted on July 15, 2004. After reviewing the merits of the plaintiffs claim, the trial court issued its judgment in a memorandum of decision dated July 5, 2005, dismissing the plaintiffs appeal and adopting the order of the Probate Court. This appeal followed. I The plaintiffs first claim on appeal is that the trial court abused its discretion when it removed her as executrix. Specifically, the plaintiff argues that no factual basis exists to support such removal because no finding was made by the court that the plaintiff, in her fiduciary capacity, presented a continuing risk to the estate. We agree. We begin by setting forth the applicable standard of review. General Statutes § 45a-242 (a) governs the removal of fiduciaries and the grounds for such removal. Section 45a-242 (a) provides in relevant part: "The court of probate having jurisdiction may, upon its own motion or upon the application and complaint of any person interested or of the surety upon the fiduciary's probate bond, after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge, or fails to furnish any additional or substitute probate bond ordered by the court . . . ." "Whether grounds exist for an executor's removal is a question addressed to the sound discretion of the Probate Court. . . . On appeal from probate, the trial court may exercise the same discretion de novo, reviewing the facts relating to the propriety of removal without regard to the Probate Court's decision. . . . Our task, then, is to determine whether the trial court abused its discretion . . . ." (Citations omitted.) Ram-sdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987). Our law makes clear that the removal of the fiduciary of an estate is an extraordinary remedy to be applied only when necessary to protect against harm caused by the continuing depletion or mismanagement of an estate. Cadle Co. v. D'Addario, 268 Conn. 441, 459, 460, 844 A.2d 836 (2004); Ramsdell v. Union Trust Co., supra, 202 Conn. 66. '[Underlying the rule . is the recognition that the decedent has specifically chosen the fiduciary for the specific purpose of administering his estate and managing the claims of persons with conflicting interests in the estate." Cadle Co. v. D'Addario, supra, 460. The party seeking removal of a fiduciary has the burden of showing that the estate's interests will suffer continuing harm if the fiduciary is not removed. Id., 461. The defendant proffers three arguments as to why the plaintiff has a continuing conflict of interest rendering her unfit to perform her duties to the estate. He maintains, first, that an inherent conflict exists in the plaintiffs dual role as executrix and life tenant. He also claims that the ongoing conflict between himself and the plaintiff stemming from the present litigation constitutes sufficient grounds for the plaintiffs removal as executrix. The defendant further contends that the plaintiffs status as a debtor of the estate, resulting from the Probate Court's order requiring her to reimburse the estate for funds expended, created a continuing conflict of interest justifying her removal. Despite the defendant's arguments as to why the plaintiff has a conflict of interest placing the estate's funds at ongoing risk, the court made absolutely no finding indicating that a continuing conflict of interest existed rendering the plaintiff unfit to perform her duties to the estate. Although the court found that the plaintiff improperly had utilized estate funds to pay for repairs and taxes associated with the property, "[i]n the absence of continuing harm to the interests of the estate and its beneficiaries, removal is not justified merely as a punishment for a fiduciary's past misconduct." Ramsdell v. Union Trust Co., supra, 202 Conn. 67. The existence of a potential conflict of interest does not, of itself, mandate removal of the plaintiff as executrix. See id., 66. We conclude, therefore, that the trial court abused its discretion in removing the plaintiff as executrix without the finding that continuing harm to the estate would result if she was not removed as fiduciary. II The plaintiff next claims that the trial court improperly concluded that the work performed to the roof, porch and stairs constituted ordinary maintenance and repairs to the property and that she, rather than the estate, was responsible for the cost. We disagree. The decedent's will devised to the plaintiff a life estate, on the condition that she pay for "ordinary maintenance and repairs" to the property. The plaintiff contends that the repairs performed on the property do not fall under the category of ordinary maintenance and repairs as described by the will because the property was in poor repair when it passed to her as a life tenant, and the work performed was designed "to provide or construct improvements to the home necessary to preserve it and to permit it to be used for the life tenancy contemplated in the will . . . ." The court concluded the following with respect to the plaintiffs obligation to pay for the repairs: "Apart from the specific provision in the will as to the life tenant's obligations for certain expenses, it is accepted law that the life tenant bear the expenses of maintaining the property by performing ordinary repairs to maintain the property in as good repair as when the tenant assumed possession. The replacement of the roof is an item of maintenance, for without a watertight roof, the property could be ruined, and other repairs of a more permanent nature done without the acquiescence of the remaindermen are at the tenant's expense."' Our law generally obligates a life tenant "to make the ordinary repairs required to remedy a presently existing condition of substantial disrepair that may have injured the property substantially or permanently . . . ." Zauner v. Brewer, 220 Conn. 176, 185, 596 A.2d 388 (1991); see also State v. Goggin, 208 Conn. 606, 608, 546 A.2d 250 (1988) (owner of life estate responsible for extensive repairs required at property). "A specific will provision can override or supersede, however, [this] general rule." Hechtman v. Savitsky, 62 Conn. App. 654, 661, 772 A.2d 673 (2001). At issue is the interpretation of the language of the decedent's will requiring the plaintiff, as an express condition of her life estate in the property, to pay for "ordinary maintenance and repairs." "The construction of a will presents a question of law, a question that we determine in light of the facts found by the trial court or from those facts that are undisputed or indisputable." Hechtman v. Savitsky, supra, 62 Conn. App. 660. We therefore invoke a plenary review of whether the language of the will supports the court's conclusion that the plaintiff be responsible for the repairs to the roof, steps and porch of the property. See id., 661. "The primary function and duty of the courts is to ascertain the intent of the testatrix and to carry it into effect. . . . The words used by the testatrix are to be interpreted according to their ordinary meaning unless the context or circumstances indicate a different meaning." (Citations omitted.) Carr v. Huber, 18 Conn. App. 150, 155, 557 A.2d 548 (1989). Webster's Third New International Dictionary defines "ordinary" as "occurring or encountered in the usual course of events," "not uncommon or exceptional," "not remarkable," "routine, normal . . . ." The word "maintenance" is described as "the labor of keeping something (as buildings or equipment) in a state of repair or efficiency." Webster's Third International Dictionary. The word "repair" is defined as "the act or process of repairing; restoration to a state of soundness, efficiency, or health." Id. The common understanding of "ordinary maintenance and repairs" to a property, therefore, indicates both (1) the upholding of the property in its present condition and (2) the basic restoration of the property to its normal state. On the basis of this common understanding of "ordinary maintenance and repairs," we conclude that the testator did not intend through the use of the phrase to supersede the common-law obligations of a life tenant. The phrase, essentially, mirrors the duties of a life tenant under our common law. Under common law, a life tenant is obligated both to make any ordinary repairs necessary to prevent the property from progressively declining to the point of deterioration and "to make the ordinary repairs required to remedy a presently existing condition of substantial disrepair . . . ." Zauner v. Brewer, supra, 220 Conn. 185. "In discharging the latter duty to make preventive ordinary repairs, [our courts have held that] if a new roof is needed, [the life tenant] is bound to put it on; if paint wears off, he is bound to repaint." (Internal quotation marks omitted.) Id. There is no merit to the plaintiffs argument that the phrase "ordinary maintenance and repairs" should be interpreted in any way other than this commonly understood meaning. Although the plaintiff argues that the work performed on the property constituted capital improvements and not ordinary repairs, the court impliedly rejected that argument when it concluded that the life tenant was responsible for the work performed on the property. The court's factual finding was that the work performed on the property was "ordinary" and, thus, the obligation of the life tenant was not clearly erroneous in light of the evidence presented at trial. See Yale-New Haven Hospital, Inc. v. Jacobs, 64 Conn. App. 15, 23, 779 A.2d 222, cert. denied, 258 Conn. 916, 782 A.2d 1254 (2001); see also Ferguson v. Rochford, 84 Conn. 202, 204-205, 79 A. 177 (1911). Accordingly, we conclude that the court's order requiring the plaintiff to reimburse the estate for the costs of the repairs was not improper. The judgment is reversed only as to the removal of the plaintiff as executrix of the decedent's estate and the case is remanded with direction to render judgment ordering that the plaintiff be reinstated as executrix. The judgment is affirmed in all other respects. In this opinion the other judges concurred. Although additional defendants were named in the trial court proceeding, Barretta is the only defendant on appeal, and we therefore refer to him as the defendant throughout this opinion. The plaintiff does not challenge that portion of the Probate Court's order requiring her to reimburse the estate for payment of taxes for the years 2001 through 2003. The plaintiff conceded that the estate should be reimbursed for these funds. Our Supreme Court has compared this burden to that governing the removal of testamentary trustees: "In no case ought the trustee to be removed where there is no danger of a breach of trust, and some of the beneficiaries are satisfied with the management. Nor will a trustee be removed for every violation of duty, or even breach of trust, if the fund is in no danger of being lost. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the courts. There must be a clear necessity for interference to save the trust property. Mere error, or even breach of trust, may not be sufficient; there must be such misconduct as to show want of capacity or of fidelity, putting the trust in jeopardy." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, supra, 268 Conn. 458. The cases cited by the defendant in support of his position that a continuing conflict of interest exists, Ramsdell v. Union Trust Co., supra, 202 Conn. 66-67, and In re Andrews' Appeal from Probate, 78 Conn. App. 429, 437, 826 A.2d 1260 (2003), are distinguishable because in those cases, the court made express findings that a continuing conflict of interest existed. Because the phrase "ordinary maintenance and repairs" is not susceptible of different meanings, it was not necessary for the trial court to inquire into extrinsic facts to clarify the testator's intent. Compare Zauner v. Brewer, supra, 220 Conn. 180-82 (because word "surrender" has drastically different meanings comparing ordinary usage and technical legal meaning, court improperly failed to examine intent of testator in greater context). Evidence was presented that the roof was leaking, concrete was missing from the porch and stairs, the porch was "sunk in the ground" and the stairs were "very deteriorated."

Opinion PER CURIAM. The plaintiff, Suzanne Mersereau Searles, appeals from the judgment of the trial court, dismissing her administrative appeal from the decisions of the defendant, the department of social services, for lack of subject matter jurisdiction. The only issue on appeal is whether the court lacked subject matter jurisdiction to hear the plaintiffs appeal. We conclude that the court lacked subject matter jurisdiction and affirm the judgment of the trial court. The following undisputed facts are relevant to the resolution of the issue on appeal. The plaintiff has participated in programs administered by the defendant, which include the state supplement program and the food stamp program. The defendant determined that the plaintiff failed to report all of her income, as required by both programs, and notified the plaintiff of its intention to recover certain overpayment of state supplement benefits through a reduction in future benefits and to disqualify the plaintiff from participating in the food stamp program for a one year period. On May 10, 2004, the plaintiff requested administrative hearings for both of the proposed actions. Although the hearings were held in succession on the same day, there were two separate administrative hearings. The decision upholding the reduction of the plaintiffs state supplement benefits was mailed to the plaintiff on August 31, 2004. The decision upholding the plaintiffs one year suspension from the food stamp program was mailed to the plaintiff on September 8, 2004. On October 19, 2004, the plaintiff filed an application for a waiver of fees, costs and expenses. On October 27, 2004, the court granted the plaintiffs fee waiver application. On November 4, 2004, the plaintiff filed an appeal in the Superior Court, pursuant to General Statutes § 4-183. On June 13, 2005, the defendant filed a motion to dismiss the plaintiffs administrative appeal, claiming that the plaintiff failed to file the appeal within the forty-five day period prescribed by § 4-183, thereby depriving the court of subject matter jurisdiction. After a hearing on July 5, 2005, the court granted the motion to dismiss and rendered judgment thereon. "In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court's review is plenary. A determination regarding a trial court's subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Chayoon v. Sherlock, 89 Conn. App. 821, 825-26, 877 A.2d 4, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 547 U.S. 1138, 126 S. Ct. 2042, 164 L.Ed. 2d 797 (2006). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Internal quotation marks omitted.) Melendez v. Valley Metallurgical Processing Co., 86 Conn. App. 880, 884, 863 A.2d 744 (2004). General Statutes § 4-183 (a) provides an avenue for any person, aggrieved by a final administrative decision, to appeal to the Superior Court. Under the statute, an aggrieved person must file the appeal and serve a copy of the appeal on the agency within forty-five days after the administrative agency mailed the final decision. General Statutes § 4-183 (c). When the person appealing claims that he or she cannot pay the costs of an appeal, he or she may file an application for a waiver of the payment of fees, costs and expenses within the time permitted for filing an appeal. General Statutes § 4-183 (m). The filing of a waiver application tolls the time limit for the filing of an appeal until a judgment on the application is rendered. General Statutes § 4-183 (m). We first address the plaintiffs appeal from the defendant's decision mailed onAugust31,2004, upholding the reduction of the plaintiffs state supplement benefits. In order to comply with the forty-five day requirement of the statute, the plaintiff was required to file her appeal on or before October 15, 2004. The plaintiff filed her appeal on November 4, 2004. Because she filed her application for waiver of fees, costs and expenses outside the time permitted for filing an appeal, it did not toll the time limit. The court, therefore, was without jurisdiction to consider the plaintiffs appeal from the August 31, 2004 decision. The court was similarly without jurisdiction to consider the plaintiffs appeal from the defendant's decision mailed on September 8, 2004, upholding the decision to suspend the plaintiff from the food stamp program for one year. In order to comply with the forty-five day requirement of the statute, the plaintiff was required to file her appeal on or before November 1, 2004. Although the plaintiff served a copy of the appeal on the defendant on November 1, 2004, the appeal was not filed with the court until November 4, 2004. Section 4-183 (c) requires that both service on the agency and the filing of the appeal with the Superior Court occur within the forty-five day period. The plaintiff did not comply with the statute. The court, therefore, was without jurisdiction to consider the plaintiffs appeal from the September 8, 2004 decision. The judgment is affirmed. Pursuant to General Statutes § 17b-600, the state supplement program provides supplemental financial assistance to elderly and disabled persons. Pursuant to § 2011 of title 7 of the United States Code and General Statutes § 17b-2, the food stamp program provides assistance toward the cost of necessary food stuffs. The defendant provided separate notices of the proposed adverse action, the plaintiff submitted separate requests for administrative hearings, the defendant issued separate notices of the hearings and the defendant issued separate decisions. General Statutes § 4-183 (a) provides: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal." "Toll" is a legal term of art, meaning "to stop the running of' a statutory time period. Black's Law Dictionary (7th Ed. 1999).

Opinion PER CURIAM. The petitioner, Alonzo Jackson, appeals following the habeas court's denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. We dismiss the appeal. The petitioner was convicted, following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). The petitioner received a total effective sentence of eighteen years incarceration. He then filed a direct appeal, and this court affirmed the judgment of conviction. See State v. Jackson, 68 Conn. App. 901, 792 A.2d 914 (2002). The petitioner subsequently filed an amended petition for a writ of habeas corpus in which he claimed that his trial counsel and appellate counsel had provided ineffective assistance. The habeas court rejected the petitioner's claims and then denied his petition for certification to appeal. On appeal, the petitioner claims that the court improperly denied his petition for certification to appeal because his trial counsel was ineffective in reacting to the state's filing of a substitute information on the day that jury selection commenced. The petitioner contends that his trial counsel inadequately explained the charges in the substitute information and should have requested a continuance in order to ensure that the petitioner understood them. The petitioner must demonstrate that the court abused its discretion in denying his petition for certification to appeal. Our review of the record and briefs reveals that the state filed the substitute information on May 2, 2000. Jury selection proceeded from that date until May 4, 2000, but the taking of evidence did not begin until May 24, 2000. The petitioner therefore had twenty-two days to consider the charges and discuss them with his trial counsel before the taking of evidence began. We conclude that the petitioner has not demonstrated that the issues he has raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). Accordingly, the court did not abuse its discretion in denying the petition for certification to appeal. The appeal is dismissed. The petitioner does not claim that the court improperly denied his petition for certification to appeal on the basis of the court's finding that his appellate counsel had provided effective assistance.

Opinion PER CURIAM. Vincent Juliano (Vincent) appeals from the judgments rendered in two actions that were consolidated and tried to the court. He appeals from the judgments as a plaintiff in one action and as a defendant in the other. In the first action, instituted in October, 2003, Vincent brought a convoluted pro se civil claim against his sister, Bernadette Juliano (Bernadette), originally sounding in negligence and ultimately morphing into what appears to be a claim for conversion, fraud and breach of fiduciary duty. In the second action, instituted in June, 2004, Bernadette sought to recover, by way of summary process, possession of a premises occupied by Vincent. The primary issue in both actions is whether Vincent voluntarily conveyed his ownership interest in various assets and real estate, including 14 Thill Street in West Haven (Thill Street), to Bernadette. In his action, Vincent alleged that Bernadette had forged his signature to a set of quitclaim deeds and other legal documents resulting in the unknowing and involuntary conveyance of his ownership interest in various assets and real estate the parties had inherited from their father. In her action, Bernadette sought to recover possession of Thill Street from Vincent. The court ultimately found that Vincent voluntarily conveyed his ownership interest in the assets and real estate to Bernadette, including Thill Street, and, thus, found in favor of Bernadette in both actions. On appeal, Vincent claims that the court improperly (1) found that he voluntarily conveyed his ownership interest in the assets and real estate to Bernadette, and (2) denied his motion to open the judgments. We disagree and, accordingly, affirm the judgments of the trial court. Examination of the record discloses the following factual basis and procedural history relevant to our resolution of this appeal. After the death of their father in 1975 and the subsequent death of their mother in 1978, Vincent and Bernadette, along with their sister, Veniece Juliano, inherited the family business and a few parcels of real estate. Bernadette was appointed the administratrix of the estate, and she also became the legal guardian of Vincent, who was a minor until August 20,1980. Around 1980, with financial assistance from Bernadette, Vincent moved to Thill Street, one of the parcels of real estate he and his sisters had inherited. Thill Street has been Vincent's primary residence ever since. In October, 2003, Vincent, acting pro se, brought an action against Bernadette originally sounding in negli gence. The original compliant, which alleged that Vincent and Bernadette were joint owners of Thill Street, sought monetary damages for personal injuries resulting from Bernadette's alleged failure to maintain Thill Street properly. After a series of amendments to the original complaint, Vincent drastically modified his cause of action. His modified claim alleged that he recently discovered that his ownership interest in Thill Street was unknowingly and involuntarily conveyed to Bernadette. The modified claim further alleged that Bernadette forged his signature to a set of quitclaim deeds in 1983 and that he only discovered the existence of those deeds while conducting title searches in preparation for his original claim. In response, to Vincent's action, Bernadette filed a summary process action in an attempt to recover possession of Thill Street. Both actions were consolidated and tried to the court. At the trial, Vincent, Bernadette and their family attorney, Robert Levine, testified. Vincent testified that he never signed the set of quitclaim deeds conveying Thill Street to Bernadette. He further testified that Bernadette forged his signature to the quitclaim deeds and other legal documents and that she underpaid him for the other assets in which he no longer has an ownership interest. Levine testified that he prepared the quitclaim deeds and other legal documents and that he witnessed Vincent sign them. Bernadette testified that she never forged Vincent's name to any legal documents. She further testified that Vincent was compensated for his ownership interest in Thill Street and the other assets. Finally, she testified that even after Vincent sold her his ownership in Thill Street, she allowed him to reside there free of all financial responsibility. The court found that Vincent voluntarily conveyed his ownership interest in Thill Street and the other assets to Bernadette. The court further found that the signatures on the set of quitclaims deeds and other legal documents matched Vincent's signature. As a result, the court rendered judgment in favor of Bernadette in each action. This appeal followed. Additional facts will be set forth as necessary. I We first address Vincent's claim that the court improperly found that he voluntarily conveyed his ownership interest in the assets and real estate to Bernadette. "If the factual basis of the court's decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). "The court's findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole." Breiner v. State Dental Commission, 57 Conn. App. 700, 704, 750 A.2d 1111 (2000). The court was presented with conflicting testimony. Vincent testified that he never signed the quitclaim deeds and the other legal documents. He further testified that he was never compensated for his ownership interest in the various assets and real estate. Levine's and Bernadette's testimony disputed his testimony. The court credited the testimony of Levine and Bernadette. As a result, the court found that Vincent voluntarily conveyed his ownership interest in the assets and real estate to Bernadette. We need go no further. It is not our function to examine the record and see if the trial court could have reached a contrary conclusion. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995). Instead, "we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999). After reviewing the record, we conclude that the court's factual findings were not clearly erroneous. II Lastly, Vincent claims that the court improperly denied his motion to open the judgments. Because it is not properly before us, we decline to review this claim. Vincent filed this appeal on January 6,2005. He subsequently filed a motion to open the judgments on April 18, 2005. The court denied his motion to open the judgments on May 9, 2005. If Vincent desired appellate review of the court's denial of his motion to open, he should have filed an appeal form indicating such intention or amended the existing form. See Practice Book § 61-1 through 61-9. Moreover "[t]he right to appeal is not a constitutional one. It is but a statutory privilege available to one who strictly complies with the statutes and rules on which the privilege is granted." (Internal quotation marks omitted.) Brown v. Brown, 190 Conn. 345, 350, 460 A.2d 1287 (1983). "In accordance with our policy not to exalt form over substance, we have been reluctant to dismiss appeals for technical deficiencies in an appellant's appeal form." Rocque v. DeMilo & Co., 85 Conn. App. 512, 527, 857 A.2d 976 (2004). We are confronted in the present case, however, with a substantive defect that implicates this court's jurisdiction to entertain the claim. We therefore decline to review this claim. The judgment is affirmed. Because the parties share the same last name, and because the parties were each a plaintiff and a defendant in the two actions, the parties will be identified by their first names. His exact cause of action was never specified, and there is not one controlling complaint. Instead, there are multiple complaints, alleging various "misconduct" by Bernadette. The totality of the various complaints essentially alleges that numerous assets were transferred out of his name without his consent or were fraudulently purchased from him for below market value.

Opinion PETERS, J. Concern about the trustworthiness of confessions of criminal misconduct has led to the enunciation of the corpus delicti rule, pursuant to which a criminal conviction cannot be based only on an uncorroborated extrajudicial confession of guilt. State v. Far-num, 275 Conn. 26, 33, 878 A.2d 1095 (2005). In this case, the defendant confessed to conduct implicating himself in the abduction and death of a victim to whose skeletal remains he led the police. The principal issue on appeal is the sufficiency of the corroborative evidence to sustain the defendant's conviction of manslaughter in the first degree, felony murder, kidnapping in the first degree and larceny in the third degree. We affirm the judgment of the trial court. In a five count information, the state charged the defendant with capital felony in violation of General Statutes § 53a-54b (5), murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c, kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1). The jury found the defendant guilty of felony murder and kidnapping in the first degree as charged. The jury found the defendant not guilty of the capital felony, murder and robbery charges, but found him guilty of the lesser included offenses of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). The trial court accepted the verdict and sentenced the defendant to a total effective term of sixty years, to be served consecutive to the sentence he was serving in Massachusetts. Considering the record as a whole, including the defendant's confessions, the jury reasonably could have found the following facts. At about 10:30 p.m. on Friday, January 2, 1998, the defendant called an escort service owned by Gabriel Gladstone. He asked for an escort and gave Gladstone his telephone number and his address, 550 Prospect Avenue, apartment nine, in Hartford. Gladstone gave this information to Ann Marie Cusano, a part-time employee of the service, but discouraged her from setting up an appointment. Cusano disregarded Gladstone's admonition and called the defendant shortly before 11 p.m. Cusano and the defendant arranged an appointment for that evening, and she called Gladstone and informed him that she was going to Hartford to meet with the defendant. Before Cusano arrived, the defendant went into the north end of Hartford in search of narcotics. He was stabbed multiple times by a drug dealer from whom he attempted to steal drugs. At some time around midnight, the defendant, still bleeding from his injuries, appeared on the porch of the Magnolia Street home of Victor Alvarado and his wife in Hartford. Declining the suggestion that an ambulance be called to take him to a hospital, the defendant was cared for by the Alvarados and then driven to Prospect Avenue as he requested. Cusano drove herself to the defendant's apartment, arriving shortly before 1 a.m., on January 3. After arriving, she telephoned Gladstone from inside the defendant's apartment to notify him that she was not keeping the appointment and that she was going home. That was the last time Gladstone heard from Cusano. When Cusano informed the defendant that she wanted to leave his apartment, he was standing between her and the door. The defendant, however, wanted Cusano to stay. A physical struggle ensued, which lasted for about five to ten minutes. The defendant eventually succeeded in preventing her from leaving, by grabbing her leg and then placing her in a headlock. He held her there until she stopped breathing. The defendant carried Cusano's body downstairs and placed it in her car. He drove to Suffield and disposed of her body. Driving Cusano's car into the north end of Hartford later on January 3, the defendant approached a drug dealer named Darryl Wilson. In exchange for $50 worth of cocaine, the defendant "rented" Cusano's car to Wilson and another drug dealer named Corey Brown. Wilson and Brown dropped the defendant off at a "crack house," with the understanding that they would pick him up the following morning. When they returned for him the next morning, however, the defendant was not there. Brown initially kept the car but subsequently gave it to Wilson, who abandoned it on Pliny Street in Hartford after learning from a news program that it was linked to a missing person. Some time after having traded Cusano's car for cocaine, the defendant appeared at the home of his cousin Barbara Shannon and her husband Craig Shannon on Mansfield Avenue in Hartford. The defendant told Craig Shannon that he had been in a fight in a nearby housing project. His clothes were disheveled. The Shannons helped the defendant clean his injuries and offered to call him an ambulance, which he refused. After a few days, they asked him to leave, and he went to the West Hartford house of his aunt, Margaret Cappella. While there, the defendant asked his aunt and her daughter to clean out his Prospect Avenue apartment. He then fled to Massachusetts. In the meantime, Cusano's daughters had become concerned about their mother's absence. On January 2,1998, they had been staying with friends in Waterbury. When Cusano failed to pick them up, as planned, on the following day, they called their uncle and went with him to the Shelton police station to file a missing person's report. Telephone records for Cusano's home led the police to Gladstone, who informed the police of her appointment with the defendant. The Shelton police then went to the defendant's apartment, where they found the apartment door ajar and observed a chair, a bed and a bag of clothes with brownish red stains. Concluding that the apartment was a possible crime scene, they summoned the Hartford police. A subsequent search of the apartment, pursuant to a warrant, revealed blood stains on the walls, mattress and chair. Also found was a bag of bloody and punctured clothing. Although there was no evidence of Cusano's blood or DNA in the defendant's apartment, under the bed the police found a gold hoop earring that was similar to one owned by Cusano. The Hartford police traced the defendant to Massachusetts, where he had been arrested and was incarcerated for other crimes. Hartford police Detective James Rovella spoke to the defendant there on August 24,1998, but the defendant was not brought back to Hartford pursuant to a detainer until September 1, 2000. Upon his return to Hartford, the defendant was given Miranda warnings and was interviewed by Rovella, Inspector Gary Mazzone and Detective Ben Trabka. He gave them four different accounts of what happened on the evening of January 2 and early morning of January 3, 1998. In the first account, the defendant explained that, after Cusano arrived at his apartment, they went into the city to buy narcotics. One of the two drug dealers they approached, however, attacked the defendant, and the defendant blacked out. The last time that he saw Cusano, he said, she was in her car with the two dealers. In the second, third, and fourth accounts, the defendant confessed to having strangled Cusano to death in his apartment. To prevent her from leaving, he placed his arm around her in a headlock in which he held her until she stopped breathing. He disposed of her body by putting it in her car and driving to Suffield. Thereafter, he traded the use of her car for cocaine. The defendant twice accompanied the police to Suf-field to show them where the victim's body was located. Although the first search in an area off 666 Boston Neck Road was unsuccessful, a second search brought Detective Michael Sheldon to a vegetated area where he found a skull. The skull and other skeletal remains found on the scene were subsequently identified as belonging to Cusano. The report issued by the office of the chief medical examiner identified the cause of death as "homicidal violence, type undetermined." At trial, the medical examiner testified that the remains recovered were consistent with someone who had been killed by strangulation. The defendant has raised three major issues on appeal. He challenges (1) the sufficiency of the evidence to support each of the crimes of which he was convicted, (2) the court's restriction of his closing argument to the jury with respect to one of the drug dealers and (3) the court's instructions to the jury on kidnapping and on avoiding juror deadlock. We are not persuaded by any of these claims of impropriety. I SUFFICIENCY OF THE EVIDENCE We first address the defendant's claim that the there was insufficient evidence to support his conviction. The defendant's argument is twofold. First, the defendant argues that the state failed to prove the corpus delicti of these crimes because the only evidence of their occurrence came from the defendant's allegedly uncorroborated confessions. Second, the defendant claims that the state failed to prove the essential elements of each crime beyond a reasonable doubt. We are not persuaded. Our review of claims challenging the sufficiency of the evidence is governed by a two part test. "First, we construe the evidence in the light most favorable to sustaining the [decision]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [fact finder] if there is sufficient evidence to support the [decision]." (Internal quotation marks omitted.) State v. Elsey, 81 Conn. App. 738, 744, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). A The defendant's principal claim is that his conviction must be set aside because, in his view, for each crime, the state's case was based solely on his uncorroborated confessions and thus failed to comply with the rule of corpus delicti. This is his only attack on the probative value of these confessions. He does not deny that the police gave him the constitutional warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and he does not argue that his confessions were involuntary. He maintains instead that the state failed to present substantial, independent evidence that indicated that his confessions were true. We disagree. Historically, the corpus delicti rule prohibited a defendant from being convicted of a crime on the basis of his extrajudicial confession unless the confession was corroborated by some evidence of the corpus delicti, or "the body of the crime . . . ." See 1 W. LaFave, Substantive Criminal Law (2d 2003) § 1.4 (b), p. 29. In its original form, the corpus delicti doctrine required proof from another source that a crime had in fact occurred. See State v. Tillman, 152 Conn. 15, 18, 202 A.2d 494 (1964). Over the last fifty years, however, the nature and extent of the corroboration requirement has evolved. Following the decision of the United States Supreme Court in Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954), a number of jurisdictions have abandoned the traditional rule in favor of the trustworthiness doctrine, which emphasizes the reliability of the defendant's confession rather than the availability of independent evidence of the corpus delicti. Under the trustworthiness doctrine, direct proof of the corpus delicti independent of the defendant's statements is not required as long as there is "substantial independent evidence which would tend to establish the trustworthiness of the [defendant's] statement." Id., 93. "If . . . there is substantial extrinsic evidence tending to demonstrate that the statements of the accused are 'true,' i.e., trustworty, the statements are admissible. . . . The corpus delicti of the crime may then be established by the statements of the accused and extrinsic evidence considered together." (Citation omitted.) State v. Harris, 215 Conn. 189, 195, 575 A.2d 223 (1990). Our Supreme Court adopted the trustworthiness doctrine in State v. Hafford, 252 Conn. 274, 317, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). See also State v. Harris, supra, 195. Before we can address the merits of the corpus delicti claim raised by the defendant in this case, we must determine whether the claim is properly before us. Con-cededly, the defendant did not preserve it in the trial court. We nonetheless can address his claim if it qualifies for appellate review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, the Supreme Court set forth the conditions under which a defendant can prevail on an unpre-served claim of constitutional violation. Id., 239-40. "[A] defendant can prevail . . . only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. "The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail." State v. George B., 258 Conn. 779, 784, 785 A.2d 573 (2001). The state argues that the defendant's claim is not eligible for Golding review because of State v. Uretek, Inc., 207 Conn. 706, 713, 543 A.2d 709 (1988). In Ureteck, our Supreme Court "summarily rejected a claim that the lack of extrinsic corroboration of an admission that was vital to proving an element of the offense implicated a fundamental constitutional right and, therefore, concluded that such a claim did not qualify for review under [the pr e-Golding standard for review of unpreserved constitutional claims]. 'State v. Oliveras, 210 Conn. 751, 756, 557 A.2d 534 (1989). In State v. Oliveras, supra, 757, however, the court retreated from this holding by stating: "We need not now decide whether a claim that there was no proof of the corpus delicti, as we have defined it, from evidence independent of the confession or admission of an accused would warrant review under [the pr e-Golding standard] as implicating a constitutional right." For present purposes, we will assume, therefore, that the defendant's claim is constitutional in nature and reviewable. Turning to the merits of the defendant's claim, we are persuaded that the defendant cannot prevail. Undoubtedly, the state used the defendant's confessions to prove his guilt of the crimes of which he was convicted. The state's case, however, was buttressed by other evidence as well. The principal corroborating evidence on which the state properly relied was that the defendant led the police to the place in Suffield where Cusano's skeletal remains were found. In addition, it is significant that the medical examiner testified that the cause of Cusano's death was homicidal violence and that her remains were consistent with those of someone who had been killed by strangulation. Furthermore, Victor Alvarado's testimony and the blood found in the defendant's apartment corroborate the defendant's account of his having been stabbed. The recovery of Cusano's earring on the floor of the apartment is consistent with the occurrence of a struggle in the apartment. Gladstone's testimony and his telephone records provide additional independent evidence of the events leading to Cusano's death. Likewise, the testimony of Wilson and Craig Shannon supports the defendant's statements regarding the events following the disposal of Cusano's body. Finally, the defendant's flight to Massachusetts shortly after his appointment with Cusano and his efforts to conceal his identity demonstrate consciousness of guilt. We conclude, therefore, that the defendant cannot prevail in his claim that the state failed to establish the corpus delicti in this case. The independent evidence adduced by the state was more than sufficient to corroborate the defendant's confessions. B The defendant maintained that even if his confessions were sufficiently corroborated so that the jury could find them trustworthy, the state did not present sufficient evidence to sustain his conviction of first degree kidnapping. We disagree. The fourth count of the information charged the defendant with having committed kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) and (B) in that he "abducted Ann Marie Cusano and restrained her with intent to inflict physical injury upon her and to accomplish or advance the commission of a felony . . . ." The jury so found. According to the defendant, the state did not introduce sufficient evidence to prove abduction, restraint or the requisite intent. The jury reasonably could have found credible the testimony of Rovello describing the statements that the defendant made in his third and fourth confessions. Through Rovello, the juiy heard that, although Cusano had come to the defendant's apartment voluntarily, she thereafter decided that she wanted to leave. The defendant, who was standing between her and the door, wanted her to stay. They fought for about five to ten minutes. To prevent her from leaving, he took her by the leg and placed his arm around her neck in a headlock. He released her only when he noticed that she had stopped breathing. The defendant first argues that this evidence was insufficient to establish that he had so substantially interfered with Cusano's liberty that he reasonably could have been found to have abducted and restrained her. We disagree. Even though Cusano's death by strangulation could have occurred almost instantaneously, the defendant's prior conduct in preventing Cusano from leaving was sufficiently protracted so that the jury could find as it did. Our Supreme Court recently observed that "common notions regarding the crime of kidnapping envisage the carrying away of a person under coercion and restraint. Although this type of movement undoubtedly can serve as the basis for kidnapping, our kidnapping statute does not require such movement. Rather, all that is required under the statute is that the defendant have abducted the victim . [T]he abduction requirement is satisfied when the defendant restrains the victim with the intent to prevent her liberation through the use of physical force. Further, the victim is restrained when the defendant . . . moves her from one place to another or restricts her movement by confining her in the place where the restriction commenced. . . . [W]e read the language of the statute as allowing the restriction of movement alone to serve as the basis for kidnapping. Therefore, the relevant inquiry under our kidnapping statute is whether any movement, or restriction of movement, was accomplished with the intent to prevent the victim's liberation. . . . [A]ny argument imputing a temporal requirement . . . for abduction under the kidnapping statute must fail." (Citations omitted; emphasis in original.) State v. Luurtsema, 262 Conn. 179, 201-202, 811 A.2d 223 (2002). Alternatively, the defendant argues that the state failed to introduce evidence that he restrained Cusano with the intent to inflict physical injury on her. We agree, however, with the state that the jury had the right to infer from the manner in which the defendant stopped Cusano from leaving that he intended a physical assault on her body even if he did not anticipate that his headlock would result in her asphyxiation. We know of no authorities requiring more of a showing than this. C In the second count of the information, the state charged the defendant with having committed murder in violation of § 53a-54a. Although the jury found him not guilty of that crime, it found him guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant maintains that the evidence at trial was insufficient to sustain this conviction because the state failed to prove (1) that he intended to cause serious physical injury to Cusano and (2) causation. Concededly, the first of these claims mirrors the claim about lack of intent that the defendant has raised with respect to his conviction of kidnapping. We need not repeat here why that claim is unpersuasive. The defendant next argues that the state did not prove that he caused Cusano's death because the medical examiner testified that he "found no evidence of the injuries that caused her death from the examination of the portions of the skeleton that we found." He also testified that, although he had listed homicidal violence as the cause of death in his autopsy report, he could not rule out causes of death other than strangulation. The five cervical vertebrae that were recovered did not provide evidence of a neck fracture. The defendant recites the medical examiner's testimony as if it should be read without regard to his confession about the manner in which he restrained Cusano to prevent her from leaving his apartment. We agree with the state that, in its entirety, the evidence established that, in holding her in a headlock, he not only intended to cause Cusano to suffer serious physical injury but did in fact cause her to die. D In the fifth count of the information, the state charged the defendant with having committed robbery in violation of § 53a-134 (a) (1). Although the jury found him not guilty of that charge, it found him guilty of the lesser included offense of larceny in the third degree in violation of § 53a-124 (a) (1) for having taken a motor vehicle, "the value of which is five thousand dollars or less . . . ." The state's claim was that the defendant committed this crime by "renting" Cusano's car to a drug dealer in exchange for cocaine. The defendant maintains that the evidence on this charge was insufficient because the state introduced no evidence about the value of the car. Indeed, the trial court told the jury: "[Y]ou've had no evidence of value that I can recall. So, $5000 or less. If it was worth a penny, it's an amount less than $5000. And so that element of the crime is before you." According to the defendant, because it is impossible to know whether the car was worth $100 or $10,000, the defendant's larceny conviction must be vacated. The defendant cannot prevail on this argument. Even if the car was worth only $100, the valuation requirement of the statute would have been satisfied. Moreover, if the jury found credible the defendant's statement that he was able to drive the car, the jury had a basis for finding that it had some cognizable value. E In the third count of the information, the state charged the defendant with having committed felony murder in violation of § 53a-54c. Although the jury found the defendant not guilty of the predicate felony of robbery, the jury found him guilty of the other predicate felony of kidnapping. The defendant has raised no additional issues with respect to the sufficiency of the evidence to support that count. II CLOSING ARGUMENT Under the sixth and fourteenth amendments to the United States constitution, a criminal defendant has a constitutionally protected right to make a closing argument. That right is violated "not only when a defendant is completely denied an opportunity to argue before the court or the jury after all the evidence has been admitted, but also when a defendant is deprived of the opportunity to raise a significant issue that is reasonably inferable from the facts in evidence." State v. Arline, 223 Conn. 52, 64, 612 A.2d 755 (1992). The defendant maintains that this right was infringed in this case because the trial court improperly precluded him from commenting on the state's failure to call Corey Brown as a witness. The law governing comments on missing witnesses in this state underwent a substantial change in State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). Rejecting the prior rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), our Supreme Court expressed its skepticism about the legitimacy of inferences about the availability and testimony of potential witnesses at trial. State v. Malave, supra, 734-38. It held, nonetheless, that trial counsel was "not prohibited] . . . from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness' absence may reflect on the weakness of the opposing party's case . . . [s]o long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness' absence . . . ." Id., 739. Significantly, the court noted that "the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue." Id., 740. In this case, the defendant claims that the court improperly denied him the opportunity, in his closing argument, to argue to the jury that the state's case was weakened by its failure to call Brown as a witness for the state. As previously noted, Brown was one of two drug dealers with whom the defendant negotiated an exchange of the use of Cusano's car for a quantity of cocaine. The defendant claims that the court's ruling deprived him of his federal and state constitutional rights to effective assistance of counsel, to present summation to the jury and to present a defense. The other drug dealer with whom the defendant negotiated for this cocaine was Darryl Wilson, who testified at trial. According to Wilson, some time in the late evening into early morning of January 3-4, 1998, he and the defendant drove to the home of Brown so that the defendant could buy some cocaine. The three made a deal in which the defendant obtained $50 worth of cocaine in exchange for Wilson's and Brown's use of the car. Wilson and Brown agreed to meet the defendant to return the car the following morning, but the defendant did not show up at the designated place. Although Brown kept the car initially, he subsequently gave it to Wilson, who abandoned it upon discovering that it belonged to Cusano and recognizing the defendant as a person for whom the police were looking in connection with her disappearance. Neither the state nor the defendant called Brown to testify as a witness. Relying on the testimony of an inspector for the office of the chief state's attorney that, despite the assistance of the Hartford police department, Brown could not be located, the state maintained that Brown was not an available witness. The defendant, however, produced the testimony of an investigator for the public defender's office, who reported that Brown had appeared in the public defender's office in response to a subpoena left at the address of Brown's mother. Concededly, the public defender's office did not inform the state that Brown had been located and did not tell Brown that the police were looking for him. On this record, the defendant sought to inform the jury that Brown was available to testify, that Brown was a witness whom the state naturally would have called as a witness to the disposition of Cusano's car and that the state's failure to do so demonstrated a weakness in the state's case against the defendant. He did not, however, make a specific offer of proof about the testimony that Brown would have given, nor did he identify the weakness in the state's case that was demonstrated by Brown's failure to testify. As this court observed in State v. Graham, 67 Conn. App. 45, 49, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002), "[t]he broad discretion vested in trial courts by Malave mirrors the general standards regarding the trial court's ability to limit closing argument. [T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. . It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations." (Internal quotation marks omitted.) To assist the court in its exercise of its discretion, the defendant should explain "how the state's decision not to call [the witness] exposed a weakness in the state's case" and should "make an offer of proof regarding the substance of [the witness'] potential testimony." Id. In this case, as in Graham, all that the defendant presented to the court was a blanket statement that Brown's failure to testify demonstrated a weakness in the state's case. See id. Although there are exceptional cases in which appellate courts have overturned limitations on a defendant's closing argument, those cases are readily distinguishable. Unlike State v. Arline, supra, 223 Conn. 56, this case does not involve comments on evidence supporting an inference of motive or bias on the part of a complaining witness. Unlike State v. Ross, 18 Conn. App. 423, 433, 558 A.2d 1015 (1989), this case does not involve the absence of the only eyewitness to the crime. On the present record, Brown was not a witness who could have offered any direct testimony with respect to the defendant's conviction of kidnapping, manslaughter or felony murder because he never saw Cusano and the defendant together. The defendant speculates that Brown could have described the defendant's physical condition on the morning of the crime, but the record does not indicate that the defendant ever informed the state or the trial court that Brown could have offered such evidence. With respect to the defendant's conviction of larceny, the defendant has not suggested how Brown's testimony would have differed from that given by Wilson at trial. On the present record, there is no reason to suppose that, if Brown had testified, he would not have been impeached in much the same manner that Wilson was impeached. Like Wilson, Brown admittedly was a drug dealer. The failure to have both of them testify about the defendant's use of Cusano's car was not a weakness justifying commentary by the defendant. See State v. Cruz, 71 Conn. App. 190, 211-12, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). In light of the central role that the defendant's own statements played in his conviction, we are persuaded that the court's restriction of commentary on the state's failure to call Brown as a witness did not implicate the defendant's constitutional rights to a fair trial and to the effective assistance of counsel. Viewing the court's decision to exclude this commentary as an exercise of the court's discretion, we hold that the court's decision was not an abuse of that discretion. Ill JURY INSTRUCTIONS The defendant's third claim for reversal of his conviction is that the court, in two different respects, misin-structed the jury with respect to the charge of kidnapping. He maintains that the court (1) improperly instructed the jury with respect to the relationship between kidnapping in the first degree and manslaughter and (2) coerced the jury into continuing to deliberate after it had announced that it could not reach a verdict on that charge. We are not persuaded. A The defendant first claims that the trial court misin-structed the jury on kidnapping in response to the jury's request for a recharge on kidnapping and unlawful restraint. As charged in the information, to find the defendant guilty of kidnapping in the first degree under § 53a-92 (a) (2), the jury had to find that he had restrained another person "with, intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony . . . ." (Emphasis added.) According to the defendant, the court improperly allowed the jury to find the defendant guilty of a crime that did not exist because, in its recharge, it informed the jury that the defendant could be found guilty under § 53a-92 (a) (2) (B) for intending to commit manslaughter. Although the defendant did not object to the recharge as given, he now claims that he is entitled to a new trial on the charges of kidnapping and felony murder because manslaughter is not an intent crime. We disagree. As always, we start our analysis with a statement of the standard of review that governs the defendant's claim. "The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established . When reviewing [a] challenged jury instruction . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party . In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . it is reasonably possible that the jury was misled . . . ." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 864-65, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). The defendant does not challenge the accuracy of the trial court's initial instructions on kidnapping in the first degree, in which the court identified the aggravating factor under § 53a-92 (a) (2) subparagraph (B) as a restraint intended to accomplish or advance the commission of robbery or murder. He maintains instead that it was improper for the court, in its recharge, to include manslaughter as one of the possible intended felonies on which the jury could rely. According to the defendant, because the death implicated by manslaughter is, by definition, unintentional, manslaughter is not a permissible aggravating factor under the kidnapping statute. He claims, therefore, that he is entitled to a new trial. The state's first response to this claim is that, if the instruction was improper, the court's error was harmless. It maintains that the jury had no reason to reach the issue of the scope of § 53a-92 (a) (2) (B) because it "necessarily found that the defendant abducted and restrained the victim with the intent to inflict serious injury" under § 53a-92a (a) (2) (A). In the court's inquiry about the jury's verdict on the charge of kidnapping, the court did not distinguish between subparagraphs (A) and (B). Concededly, the defendant voiced no objection to the court's failure to ask the jury to make separate findings with respect to each subparagraph. We are not persuaded by the state's harmless error claim. In the cases on which the state relies, the factual basis for the defendant's conviction necessarily included a jury finding of the element on which the trial court failed to give a proper jury instruction. See State v. Padua, 273 Conn. 138, 167-71, 869 A.2d 192 (2005) (proximity of apartment where marijuana was found to public housing project); State v. Montgomery, 254 Conn. 694, 735-38, 759 A.2d 995 (2000) (use of firearm in commission of murder). Here, by contrast, the defendant consistently contested the intentional nature of his conduct. We agree with the state, however, that the defendant's constitutional right to a fair trial was not violated by the trial court's recharge on kidnapping because it could not have misled the jury. The court was careful to limit the jury's consideration of manslaughter as an aggra-vant of intentional restraint to conduct manifesting an intent to inflict serious physical injury. Expressly excluding reckless misconduct from the jury's deliberations on kidnapping, the court properly focused the jury's attention on the defendant's mental state rather than on the result of the defendant's conduct. The court's instruction thus mirrored instructions on acces-sorial liability that have been found to be proper both by our Supreme Court in State v. Foster, 202 Conn. 520, 533, 522 A.2d 277 (1987), and this court in State v. Harris, 49 Conn. App. 121, 127-29, 714 A.2d 12 (1998). B The defendant's final claim is that the trial court denied his rights to due process, to a fair and impartial trial and to a unanimous verdict free of coercion because of the manner in which the court instructed the jury to attempt to reach a unanimous verdict on the charge of kidnapping. Concededly, the court followed the language of the Chip Smith charge as restated recently by our Supreme Court in State v. O'Neil, 261 Conn. 49, 60 n.16, 801 A.2d 730 (2002). The defendant maintains, however, that his federal and state constitutional rights were violated by the court's addition of a coercive prefatory instruction. We disagree. The jury began its deliberations on December 3,2002, and deliberated further on December 4, 5, 10, 11, 12 and 13 before reaching a verdict. During its deliberations, the jury asked the trial court for reinstruction on fifteen occasions. On December 11, the jury sent the court a note stating: "We cannot come to a consensus on the kidnapping charge. Please help us to understand our options." In response to this inquiry, the court informed both counsel that it would give the jury the standard Chip Smith charge. The defendant's only comment was that it was premature to do so. The court decided, however, that it was timely to do so because the jury already had been deliberating for four days. Before giving the Chip Smith instructions to the jury, the court stated: "Keep in mind how important it is for you to reach unanimous agreement, because if you can't agree, then the case as to the charge that you can't agree on is mistried and the case has to be tried again. There's no particular reason to believe that the next twelve of you will be any more conscientious and impartial than you are." It then urged the jurors, in standard Chip Smith language, that, although they should not merely acquiesce in the conclusion of their fellow jurors, they should carefully respect and listen to each other's opinions with an open mind. Although asked to comment, the defendant did not object further except to reiterate his view that the charge should not have been given at all. In his appeal, the defendant challenges only the court's prefatory comments. In his view, it was coercive, and hence constitutionally impermissible, for the trial court to mention the possibility of a mistrial to the jury. He relies on State v. O'Neill, 200 Conn. 268, 511 A.2d 321 (1986), in which our Supreme Court upheld the giving of a Chip Smith instruction by noting what the trial court in that case had not said. "The potential of a mistrial, upon a deadlock, often regarded as coercive, was fully absent in this charge. . . . Because the possibility of disagreement by a jury and the consequent lack of a unanimous verdict 'is a protection conferred upon a criminal defendant in a criminal case by the [United States] constitution,' for a judge to tell a jury that a case must be decided is not only coercive in nature but is also misleading in fact because to do so precludes the right of a defendant to rely on the possibility of a disagreement by the jury." (Citation omitted.) Id., 284. We agree with the defendant that the trial court should not have given the prefatory instruction that it did. To date, our Supreme Court has declined to interpolate into the standard Chip Smith charge a reference to the undesirability of a possible retrial in the event of juror disagreement. See State v. O'Neil, supra, 261 Conn. 74-75; compare State v. O'Neil, supra, 261 Conn. 83 n.2 (Borden, J., concurring). Furthermore, the disapproval of such a charge in State v. O'Neill, supra, 200 Conn. 268, does not stand alone. For similar expressions of concern, see State v. Colon, 28 Conn. App. 231, 246, 611 A.2d 902, cert. denied, 223 Conn. 922, 614 A.2d 827 (1992); see also United States v. McElhiney, 275 F.3d 928, 945 (10th Cir. 2001); United States v. Harris, 391 F.2d 348, 355 (6th Cir.), cert. denied, 393 U.S. 874, 89 S. Ct. 169, 21 L. Ed. 2d 145 (1968); Stapleton v. State, 696 P.2d 180, 183 (Ala. App. 1985); People v. Barraza, 23 Cal. 3d 675, 682-83, 591 P.2d 947, 153 Cal. Rptr. 459 (1979); Commonwealth v. Rodriquez, 364 Mass. 87, 100 n.16, 300 N.E.2d 192 (1973); State v. Quint, 448 A.2d 1353, 1356 (Me. 1982). The question remains, however, whether the court's embellishment of the Chip Smith charge requires a new trial. The state urges us to conclude that the court's error was harmless because (1) the defendant did not take specific exception to the prefatory language, (2) the court's subsequent accurate recital of the Chip Smith charge furnishes sufficient assurance that the jury was not misled and (3) the jury continued to deliberate for a considerable period of time subsequent to the court's charge. In light of State v. O'Neil, supra, 261 Conn. 49, the state cannot prevail on its claim that the defendant's failure to object to the court's prefatory charge is fatal to his claim on appeal. While the defendant's appellate brief does not expressly refer to State v. Golding, supra, 213 Conn. 239-40, with respect to this issue, he properly characterizes his disagreement with the court's charge as implicating his constitutional rights to due process, to a fair and impartial trial and to a unanimous jury verdict free of coercion. In O'Neil, the court acknowledged that a claim "that the Chip Smith instruction coerced minority view members of the jury is of constitutional magnitude." State v. O'Neil, supra, 59. The state is, however, on stronger ground, when it urges us to consider whether the coercive aspect of the court's prefatory instructions was attenuated by the court's accurate recital of the rest of the Chip Smith charge as restated in State v. O'Neil, supra, 261 Conn. 74-75. The court's final instructions were designed to encourage each juror to act independently. "Do not ever change your mind just because other jurors see things differently or to get the case over with," the court told the jury. "As I told you before, in the end, your vote must be exactly that, your own vote. As important as it is for you to reach a unanimous agreement, it is just as important that you do so honestly and in good conscience. . . . [W]hat I have said to you is not intended to rush you into agreeing on a verdict. Take as much time as you need to discuss the matter. There is no need to hurry." We have often recognized that accurate final instructions can serve to cure even constitutional defects in earlier proceedings. See, e.g., State v. Alston, 272 Conn. 432, 450, 862 A.2d 817 (2005); State v. Yusuf, 70 Conn. App. 594, 630, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002). Furthermore, the fact that the jury did not announce its verdict immediately upon its resumption of deliberations the following day is some evidence that the court's final cautionary words were taken seriously. CONCLUSION In summary, we conclude that the defendant's conviction should be upheld. The defendant's confessions were corroborated sufficiently by independent evidence to sustain the jury's verdict with respect to manslaughter, felony murder, kidnapping and larceny. The court did not abuse its discretion in its limitation on the defendant's closing comments to the jury. The court's instructions on kidnapping were proper and its Chip Smith instruction was not reversible error. The judgment is affirmed. In this opinion the other judges concurred. On January 11,1998, Victor Alvarado told the police what had happened, alter having seen a photograph of the defendant on a news program. Subsequently, the Hartford police recovered the car. A search of the car, pursuant to a warrant, revealed that there was no blood in the car. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At trial, the defendant gave a similar account of the evening's events, with one major distinction. He testified that, after having been attacked by the drug dealer, he himself had been placed in the trunk of Cusano's car. When the trunk was opened, he was dropped to the ground. He then saw the taillights of the car as it was leaving and discovered that he was lying on top of the victim, who was not breathing. He walked to the road, where he was picked up by the driver of apassing truck and driven back to Hartford. With the defendant's consent, his final confession was audiotaped. The jury heard the tape and was given a transcript of its contents. The defendant filed motions for a judgment of acquittal alleging insufficiency of the evidence at the end of the state's case, after the close of all the evidence and just prior to sentencing. He did not, however, cite the corpus delicti rule as the basis for his motions. In its recharge, the court instructed the jury as follows: 'Now, since you've asked me about manslaughter, there are some situations where kidnapping in the first degree can be for the purpose of advancing the commission of the felony of manslaughter, but not always. "Only manslaughter with intent to inflict serious physical injury is a manslaughter that would qualify for this element of kidnapping in the first degree because kidnapping is an intentional crime, and it is possible to kidnap with the intent to further a death committed in the course of intending to commit serious physical ipjury. "But it is not possible to have a kidnapping in the first degree intentionally designed to commit a reckless manslaughter. One cannot intend to do something reckless. Well, one can intend to do something foolishly, recklessly, but one cannot intend under our law. "So, only manslaughter [subdivision] (1), the physical injury, is eligible for one of the felonies that is the required element of kidnapping in the first degree." "The purpose of the [Chip Smith] instruction is to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence. . . . D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) § 4.4, p. 245. Better than any other statement . it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors . . . ." (Internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 439, 778 A.2d 812 (2001). "It is the language used and not the number of times a Chip Smith charge is given that determines whether the instruction is improper. If the words are not coercive, then the fact that they are uttered more than once does not change their character." Id., 441. The standard language contains the admonition that the trial court is not compelling the jury to reach a verdict. The second half of the instructions merely explains the deliberative process to the jury. Id. The court told the jury that "the verdict that each of you agrees [to] must express your own conclusion and not merely acquiesce in the conclusion of your fellow jurors. But, in order to bring your minds to a unanimous result, you should consider the question you have to decide not only carefully, but with due regard and deference to the opinions of each other. In conferring together, pay proper respect to each other's opinions and listen with an open mind to each other's arguments. If the much greater number of you reach a certain conclusion, dissenting jurors should consider whether their opinion is a reasonable one or the evidence does lend itself to assume a result in the minds of so many of you who are equally honest and equally intelligent, who have heard the same evidence with an equal desire to arrive at the truth and under the sanctions of the same oath. But please remember this. Do not ever change your mind just because other jurors see things differently or to get the case over with. As I told you before, in the end, your vote must be exactly that, your own vote. As important as it is for you to reach a unanimous agreement, it is just as important that you do so honestly and in good conscience. . . . "[W]hat I have said to you is not intended to rush you into agreeing on a verdict. Take as much time as you need to discuss the matter. There is no need to hurry."

Opinion BISHOP, J. The defendant, Rental Management, Inc., appeals from the judgment of the trial court in favor of the plaintiff, Rent-A-PC, Inc. On appeal, the defendant claims that the court improperly (1) rendered judgment in favor of the plaintiff on the basis of unjust enrichment and (2) concluded that the defendant failed to prove that the plaintiff breached the parties' express contract. We affirm the judgment of the trial court. The plaintiff is a computer rental business with its principal place of business in Hauppauge, New York. The defendant is a marketer of computer software specifically designed for the equipment rental business. Its principal place of business is in Avon. The defendant sent letters, dated February 9, March 20 and April 15, 2000, to the plaintiff for the purpose of soliciting the plaintiffs purchase of a new, unique software package that the defendant had developed. As part of the negotiations for the purchase of the software, the defendant conducted two demonstrations for the plaintiff during which the plaintiff discovered that certain parts of the software needed to be modified for its specific needs. The defendant informed the plaintiff that some of its requests would be considered custom modifications that would entail an additional charge. On October 27,2000, the defendant sent the plaintiff a memorandum setting forth the total cost of the software and informing the plaintiff of a 25 percent discount available on portions of the software. This memorandum called for a deposit of 50 percent of the software licensing fee and 25 percent of the projected cost of implementation for a total of $42,110 to be paid by December 15, 2000. On November 6, 2000, the parties discussed a list of items that the plaintiff wanted to be functional by December 31, 2000. On the basis of the defendant's assurances of functionality and the 25 percent software discount, the plaintiff signed the October 27, 2000 writing and paid the deposit on December 14, 2000. On May 10,2001, the plaintiff paid the $33,040 balance of the software cost, and the defendant installed the Phase #2 software. The plaintiff subsequently discovered that the Phase #2 software did not contain the modifications that the plaintiff had requested, even though those modifications had been communicated to the defendant over the previous several months. The plaintiff requested that the defendant return the check for $33,040. The defendant returned the check and disabled the Phase #2 software that had been installed on the plaintiffs computer. On June 6, 2001, the plaintiff sent a letter to the defendant, stating its intent to halt the implementation of the Phase #2 software and requesting a refund of its $42,110 deposit if the Phase #2 software could not be made fully functional in a timely manner. Subsequently, the plaintiff sent the defendant its detailed requirements for the implementation of the Phase #2 software. On September 16, 2001, the defendant sent the plaintiff an account reconciliation. In this missive, the defendant indicated that it would not demand payment of the balance due on the Phase #2 software until the plaintiff was ready to implement it as long as the plaintiff proceeded with the implementation process. Nevertheless, the parties did not proceed further with the implementation of the Phase #2 software. On June 4, 2003, the plaintiff filed an eight count complaint alleging breach of contract, breach of express warranty, breach of warranty of merchantability, breach of implied warranty of fitness for a particular purpose, violation of the Connecticut Unfair Trade Practices Act, unjust enrichment, fraud and intentional misrepresentation, and negligent misrepresentation. The defendant filed a counterclaim alleging breach of contract and contractual violations pursuant to the Uniform Commercial Code, General Statutes § 42a-2-703 et seq. By memorandum of decision filed November 23, 2004, the court found for the plaintiff on count six of its complaint, the unjust enrichment claim. The court further found that the defendant failed to meet its burden of proof on its counterclaim and awarded the plaintiff $42,110, without fees or costs. The defendant filed a motion to reargue, which was denied. This appeal followed. I The defendant first claims that the court improperly found in favor of the plaintiff on the basis of unjust enrichment. Specifically, the defendant asserts that (1) the remedies available under the parties' express contract precluded a remedy on the basis of unjust enrichment and (2) the court improperly determined that the defendants were unjustly enriched. We are not persuaded. "[A] claim for unjust enrichment has broad dimensions. Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. 5 Williston, Contracts (Rev. Ed.) § 1479. A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, abroad and flexible remedy." (Citations omitted; internal quotation marks omitted.) Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 511-12, 735 A.2d 813 (1999). "Recovery [under unjust enrichment] is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 637, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). "[T]he determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion." (Internal quotation marks omitted.) Id., 637-38. A The defendant claims that because both parties pleaded that they entered into an express contract, the court was bound by these judicial admissions and was precluded from finding in favor of the plaintiff on the basis of unjust enrichment. Although the "lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment"; Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001), on appeal after remand, 80 Conn. App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004); the existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract. See Polverari v. Peatt, 29 Conn. App. 191, 200, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). Here, the court did not find that either party breached the contract and did not make any findings with respect to the remedies available under the contract. The court merely stated that "[t]he issues on count six of the complaint, unjust enrichment, are found for [the plaintiff] and on the counterclaim, [the defendant] failed in its proof. Therefore, the issues are found for [the plaintiff]." Neither party requested that the court articulate its decision. Accordingly, we cannot conclude that the court's award of damages for unjust enrichment was inconsistent with the contract or that the court was precluded from awarding damages on the basis of unjust enrichment. B The defendant next claims that the court improperly concluded that it was unjustly enriched because it had expended funds in excess of the plaintiffs down payment to purchase the software that it had installed on the plaintiffs system. This claim is unavailing. "Unjust enrichment is a common-law doctrine allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefited another." (Internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn. App. 436, 440 n.2, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). "In an unjust enrichment case, damages are ordinarily not the loss to the plaintiff, but the benefit to the defendant, for which the fact finder may rely on the plaintiffs contract price when the benefit is too difficult to determine." United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 515, 802 A.2d 901 (2002). The party against whom restitution is sought, however, cannot reduce the amount from which it may be liable by subtracting its expenditures from the amount of the benefit that it has received. See 3 Restatement (Second), Contracts § 371 (1981). "If restitution were to be a proper remedy for the plaintiff's loss . it would be more consistent with the aims of restitution to measure the benefit conferred on the defendants, not by their benefit in gross, but by their benefit in having been relieved of the obligation of providing' proper compensation to the plaintiff." Meaney v. Connecticut Hospital Assn., Inc., supra, 250 Conn. 515. Applying these principles to the case at hand, we conclude that it was within the province of the court, in balancing the equities of this case, to disregard the defendant's transactional costs in determining whether it was unjustly enriched. Accordingly, the court's determination that the defendant was unjustly enriched was not clearly erroneous. II The defendant next claims that the court improperly found that it failed to prove that the plaintiff had breached the contract. We disagree. "Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court's findings of fact under the clearly erroneous standard." (Internal quotation marks omitted.) Czaplicki v. Ogren, 87 Conn. App. 779, 785, 868 A.2d 61 (2005). In this case, rather than specify any deficiencies with the court's finding that the defendant failed to prove that the plaintiff had breached the contract, the defendant essentially seeks to have this court retry the facts of the case. It is axiomatic that it is not the role of this court to engage in fact-finding, and the defendant has failed to demonstrate that the court's finding was clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. The software consisted of two distinct but integrated parts. The Phase #1 software was implemented during the first three months of 2001 and was functional on the plaintiffs system. Phase #1 was the underlying accounting software that was required for Phase #2 to function. The parties agree that the Phase #1 contract is not a subject of this action. General Statutes § 42-110a et seq. Although it is preferable for a trial court to make a formal ruling on each count, we will not elevate form over substance when it is apparent from the memorandum of decision that the trial court found in favor of the plaintiff on its unjust enrichment claim. See Raudat v. Leary, 88 Conn. App. 44, 49, 868 A.2d 120 (2005). Here, the court awarded damages to the plaintiff, without fees or costs, and reiterated in its judgment file that it was rendering judgment in favor of the plaintiff on the basis of unjust enrichment. We thus determine that the rights of the parties were concluded and that a final judgment was rendered in this case.

Opinion McLACHLAN, J. The plaintiff, Christopher Kennedy, appeals pro se from the denial of his application for a restraining order against the defendant, Leanna Put-man, made pursuant to General Statutes § 46b-15. The plaintiff claims that the trial court's decision was contrary to the evidence presented at the hearing and that it failed to accommodate his disability, attention deficit disorder, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. We dismiss the appeal as moot. The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. The parties, once married to each other, have three minor children. Sole custody of the children has been awarded to the defendant. On May 11, 2005, the plaintiff filed an application for relief from abuse against the defendant pursuant to § 46b-15. In that application, the plaintiff claimed, inter alia, that the defendant had left the country with their twelve year old daughter and placed the remaining children in the care of her boyfriend, Thomas Fournier, that Fournier had threatened the plaintiff and the children with physical violence, and that the children repeatedly were left home alone. A hearing was held on the application on May 23, 2005, at which time the plaintiff called witnesses and submitted exhibits. By order dated May 23, 2005, the court denied the application, stating: "The court, having carefully considered the credible evidence and the criteria outlined in General Statutes § 46b-15, finds that there is an insufficient basis for granting the plaintiffs application." This appeal followed. Two restraining orders previously had been issued pursuant to § 46b-15 in favor of the defendant against the plaintiff. The plaintiff filed separate appeals from the trial court's decisions extending those restraining orders. This court dismissed those appeals as moot because the restraining orders expired while the appeals were pending. Our Supreme Court granted the plaintiffs petitions for certification to appeal to determine whether the appeals properly were dismissed on the ground of mootness. After consolidating both certified appeals for briefing and argument, the court concluded that the appeals were rescued from mootness by the "collateral consequences" doctrine. Putman v. Kennedy, 279 Conn. 162, 164-65, 900 A.2d 1256 (2006). Because this case involves the denial of an application for a restraining order pursuant to § 46b-15, which was sought on the basis of an event that has passed, we must determine whether this appeal is moot and whether there are any exceptions that would preclude its dismissal. "Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty-on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) Pritchard v. Pritchard, 92 Conn. App. 327, 339-40, 885 A.2d 207 (2005), cert. granted on other grounds, 277 Conn. 913, 895 A.2d 790 (2006). Here, the plaintiff has appealed from the denial of his application for relief from abuse against the defendant that had been filed pursuant to § 46b-15. Initially, he sought a restraining order against the defendant and Fournier. The plaintiff crossed out Fournier's name, as a person against whom the application was filed, and initialed that deletion. The stated basis for the plaintiffs fear of physical harm to him and his children, as set forth in his application and as presented at the hearing, was the claim that the defendant had "left the country" with one of their daughters and left the other two minor children in the care of Fournier. The plaintiff claimed that Fournier threatened him and his children with physical violence, prevented the children from seeing the plaintiff, made false claims about the plaintiff to the police and left the children at home alone and without supervision. According to the plaintiff, those actions placed the children in imminent danger. The relief sought by the plaintiff was the issuance of restraining orders against the defendant and Fournier and the granting of temporary custody of the three minor children to the plaintiff. The incident that triggered the filing of the plaintiffs application was a one week field trip to Canada taken by the defendant and one of the parties' daughters in May, 2005. The event that precipitated the plaintiffs request for relief has long since passed. Even if this court were to conclude that the court's denial of the application was improper, we are unable to afford any practical relief to the plaintiff. Nevertheless, even if an appeal is moot because no practical relief is available, the appeal may still be heard under the exception that the issues on appeal are "capable of repetition, yet evading review." "Our cases reveal that for an otherwise moot question to qualify for review under the 'capable of repetition, yet evading review' exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot." (Internal quotation marks omitted.) In re Jeffrey C., 64 Conn. App. 55, 65, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002). We conclude that the first requirement has been met. A temporary restraining order, by its veiy nature, is of limited duration and subject to expiration prior to any appellate litigation that ensues. Id., 66. The validity of a denial of an application for a restraining order pursuant to § 46b-15, which is the challenged action in this appeal, by its nature also will become moot before appellate litigation can be concluded. The remaining requirements necessary to qualify for the "capable of repetition, yet evading review" exception, however, have not been met. First, the plaintiff has not established that the matter involved in this appeal rises to the level of public importance contemplated by Loisel v. Rowe, 233 Conn. 370, 387-88, 660 A.2d 323 (1995). Our Supreme Court addressed this element of the "capable of repetition, yet evading review" test in Putman v. Kennedy, supra, 279 Conn. 162. "[T]he defendant's claim fails under the 'public interest' element . . . because, as demonstrated by his appellant's brief filed in the Appellate Court [which thereafter dismissed as moot his appeals from the extension of two prior restraining orders], his claims, although -undeniably important to him personally, are by their very nature limited to these cases. Specifically, although the defendant claims numerous due process and statutory violations, his pro se brief filed before the Appellate Court indicates that they all are rooted in the trial court's exercise of its discretion with respect to the facts of these particular cases, and his brief to this court, filed by counsel, does not indicate otherwise. Thus, although the 'capable of repetition, yet evading review' exception might well be applicable in a domestic violence restraining order case raising broader issues than those presented here, the Appellate Court properly concluded that the exception did not apply to this appeal. It, therefore, appropriately relied on its decision in In re Jeffrey C., supra, 64 Conn. App. 66-67, in which it rejected application of the 'capable of repetition, yet evading review' exception to a case that also was limited to record specific claims." (Emphasis in original.) Putman v. Kennedy, supra, 176 n.14. Accordingly, for those same reasons, the plaintiffs claim in this appeal does not rise to the requisite level of public importance. Second, in determining this issue, we find it of great significance that the plaintiff utilized an improper vehicle for the relief he sought in the trial court. Two restraining orders already had been issued against the plaintiff, and he repeatedly stated that he wanted those orders to be modified. The plaintiff indicated that he was distressed because he was unable to have unsupervised visits with his children. From the plaintiffs testimony at the hearing, it was clear that he believed that the restraining orders issued against him were the result of untrue statements made by the defendant and Four-nier to the police and the court. The plaintiff wanted custody of his children or a modification of the restraining orders that had been issued against him. He chose to file an application seeking a restraining order against the defendant instead of filing a motion to modify the existing restraining orders against him or a motion to modify the custody orders with respect to the three minor children. An application for a temporary restraining order was not the proper procedural vehicle under those circumstances, and the issue became moot and incapable of review when the temporary situation precipitating the plaintiffs request, i.e., the one week field trip, passed. The plaintiffs issues do not qualify for review under the "capable of repetition, yet evading review" exception to the mootness doctrine, and there is no practical relief that we can afford the plaintiff. The appeal is dismissed. In this opinion the other judges concurred. The defendant did not file a brief or participate in the appeal. General Statutes § 46b-15 (a) provides: "Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section." Because we conclude that the plaintiffs claims are moot, we do not reach the issue of whether a denial of an application for a restraining order made pursuant to General Statutes § 46b-15 is a final judgment for purposes of appeal. See Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977). We also do not reach the plaintiffs claim that the court failed to afford him reasonable accommodations under the American with Disabilities Act of 1990,42 U.S.C. § 12101 et seq. At oral argument before this court, the plaintiff indicated that he should have been provided with an "interpreter" at the hearing on his application, i.e., someone familiar with his disability who could have effectively communicated his position to the trial court. In essence, the plaintiff was describing the services of an attorney. The general rule is that court-appointed counsel is not available in civil proceedings. Statewide Grievance Committee v. Friedland, 222 Conn. 131, 145-46, 609 A.2d 645 (1992). We also note that the plaintiffs argument before this court, although not legally persuasive, was articulate. At the hearing on the application, it was undisputed that the defendant and her daughter had gone to Canada for a one week field trip. Here, the "collateral consequences" doctrine is not applicable. The plaintiff does not argue, and this court cannot discern from the record, any collateral consequences that have occurred as the result of the denial of his application for relief from abuse filed pursuant to General Statutes § 46b-15. The plaintiff argues, as he did in Putman v. Kennedy, supra, 279 Conn. 162, that the "capable of repetition, yet evading review" exception applies to his circumstances. In footnote 14 of Putman, the court found his reliance on that exception to be misplaced and, instead, analyzed his claim under the "collateral consequences" doctrine. Id., 175 n.14. The procedural posture of the present appeal is entirely different. The requested restraining order against the defendant was denied, and the plaintiff has not claimed that he suffered any collateral consequences from that denial. Instead, as recognized by the court in Putman, "the 'capable of repetition, yet evading review' exception might well be applicable in a domestic violence restraining order case raising broader issues than those presented . . . ." Id., 176 n.14. We therefore review the plaintiffs claim that the "capable of repetition, yet evading review" exception applies under these circumstances to determine whether the plaintiffs appeal can be heard.

Opinion PETERS, J. This criminal appeal involves an elderly man who sustained severe bodily injuries in his home. Alleging that the victim's injuries resulted from an altercation with his son, the state charged the son with assault and unlawful restraint. The son claimed, however, that the victim's injuries resulted from a slip and fall in the bathroom where he was found. The principal issue is whether the trial court improperly prevented the son from offering impeachment evidence through the testimony of a Spanish speaking investigator about an exculpatory conversation with the victim. The jury found the defendant guilty as charged, and the court rendered judgment in accordance with the verdict. We affirm the judgment of the trial court. The state charged the defendant, German M. Quiles, Jr., with having committed assault of a victim sixty years of age or older in the second degree in violation of General Statutes § 53a-60b (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The alleged victim was his sixty-seven year old father, German M. Quiles, Sr., in whose household the defendant was living. The state claimed that the defendant intentionally had caused physical injury to his father by grabbing him and throwing him on the floor and unlawfully had restrained him by holding him in a manner exposing him to a substantial risk of physical injury. The jury found the defendant guilty as charged, and the court sentenced him to eight years of imprisonment concurrent with a sentence that he already was serving. The jury reasonably could have found that, on the evening of June 25, 2003, the father berated the defendant for excessive use of the father's telephone. Early the following morning, when the defendant was still on the telephone, the parties fought about the telephone. Before the father could return to his bed, the defendant grabbed him, picked him up, threw him on a tile floor and then threw him back on his bed. After sleeping for a few hours, the father made his way to his nearby bathroom, where he collapsed. Sometime later that morning, paramedics were summoned to take the father to the emergency room at Yale-New Haven Hospital. There, various tests revealed that the father had sustained a pelvic bone fracture, internal bleeding and multiple bruises. In his appeal from the judgment convicting him as charged, the defendant has raised two issues in support of his contention that the victim, confused and possibly under the influence of alcohol, simply fell on his way to the bathroom. He maintains that the trial court improperly interfered with his presentation of this defense by (1) preventing him from introducing the testimony of a Spanish speaking investigator to contradict the victim's account of what had occurred and (2) refusing to disclose to him the victim's mental health records from an earlier hospitalization. We are not persuaded. I The defendant's principal claim is that the trial court improperly prevented him from challenging the credibility of the testimony that his father gave at trial about how he came to be seriously injured. He maintains that the trial court should have permitted him to impeach his father's testimony not only on cross-examination but also by the testimony of a Spanish speaking investigator with whom the father had had a conversation before the trial. Our review of this claim of evidentiaiy error is limited to the question of whether the trial court's ruling was a clear abuse of its discretion. "We will make every reasonable presumption in favor of upholding the trial court's ruling . . . ." (Internal quotation marks omitted.) State v. Gonzalez, 272 Conn. 515, 542, 864 A.2d 847 (2005). During the state's case-in-chief, the father, speaking through an interpreter because he did not speak English, recounted the events that led to his injury. An underlying thread in the defendant's appeal is the implied representation that linguistic confusion on the part of the father contributed to the defendant's conviction. The record does not bear out this contention. In his cross-examination of his father, the defendant attempted to challenge the accuracy of his father's recall in a number of respects. Although the trial court limited some of the questioning, the defendant was permitted to ask his father whether he had been drinking that night, which he denied. The defendant also was able to elicit the fact that his father had spoken with Daniel Rodriguez, a Spanish speaking investigator, and to question him about the contents of that conversation. His father, however, vigorously resisted the suggestion that he had told the investigator that he had no recollection of that evening and that spirits had told him what had happened. The defendant then sought to introduce into evidence the testimony of Rodriguez himself "to impeach the credibility of the alleged victim in this case." Referring the court to § 6-4 of the Connecticut Code of Evidence, the defendant proposed "to ask Mr. Rodriguez to discuss his interview in depth with regard to Mr. Quiles, Sr." That testimony was necessary, he asserted, because his father's statements to the investigator were "wildly different from his testimony yesterday." After the trial court sustained the state's objection, the defendant decided not to call the investigator to testify. The trial court sustained the state's objection that this evidence was inadmissible as an inconsistent statement because it was hearsay. The state no longer relies on that ground. The state now maintains that the court's ruling, nonetheless, was not an abuse of its discretion because, in the absence of direct testimony by Rodriguez, the defendant did not provide a proper foundation for this testimony. We agree with the state that it was not enough to elicit the father's generic disagreement with what he allegedly had told the investigator. See State v. Daniels, 83 Conn. App. 210, 214, 848 A.2d 1235, cert. denied, 270 Conn. 913, 853 A.2d 528 (2004). We uphold the court's evidentiary ruling on this alternate ground, which is supported in the trial court record. State v. Vines, 71 Conn. App. 359, 366-67, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002); see also Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978) (where court "reaches a correct decision but on mistaken grounds, [our Supreme Court] has repeatedly sustained the trial court's action if proper grounds exist to support it"). Anticipating the possibility that he cannot prevail on this claim as an evidentiary error, the defendant further argues that the trial court's ruling was so central to the case that he was deprived of his constitutional right to present a defense. The record does not substantiate this claim. We do not know why the defendant chose not to call his investigator to testify. The court cannot, however, be faulted 1'or that decision. The record discloses that the defendant was able to cross-examine the father at length. In addition, there was considerable, albeit contested, medical testimony in support of the father's contention that he had indeed been thrown on the floor. The defendant has not been deprived of his constitutional right to a fair trial. II The defendant's second argument for reversal of the judgment against him is that the trial court improperly refused his motion for disclosure of the mental health records of the father when he was an inpatient at the Yale-New Haven Psychiatric Institute (Yale) from 1999 to 2000. The court undertook to inspect these records in response to an appropriate request by the defendant. The court refused to override the presumption of privilege for the communications between the father and the Yale psychologists, psychiatrists and case workers who attended to him from about 1999 until about 2000. It observed that nothing in the records "would have any bearing on the ability of [the father] to testify as to the events of June 25, 2003, which are the subject of this particular prosecution. Nor do I find anything in those reports which would bear on his ability to be capable of testifying and accurately recalling . . . the events." The ground rules that govern the disclosure of presumptively privileged psychiatric communications are well established. "Once the trial court has made its inspection, the court's determination of a defendant's access to the witness' records lies in the court's sound discretion, which we will not disturb unless abused. . . . [T]he linchpin of the determination of the defendant's access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation." (Citations omitted; internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 490, 886 A.2d 777 (2005). Our examination of the records subpoenaed by the defendant persuades us that the trial court's assessment of their contents cannot be faulted. At best, the medical records shed some light on the status of the father's mental health as it related to his use of alcohol when he was briefly hospitalized in 1999. We agree with the trial court that the information contained in those records does not illuminate the father's ability to understand what transpired on the night of June 25, 2003, or to report on that event at the trial some nine months subsequent thereto. Contrary to the assertion in the defendant's appellate brief, the record is clear that denying him access to the medical records did not impair his ability to inquire at trial about whether alcohol played a role in the father's injuries or his testimony. Such questions were put not only to the father himself, but also to a Spanish speaking police officer and various medical personnel. All that remains of the defendant's argument is his contention that the father appeared to be confused in his conversation with the defendant's investigator, but, as we have already held, the trial court properly excluded evidence of that conversation. In sum, we conclude that the trial court did not abuse its discretion in making the two evidentiary rulings that the defendant has specifically challenged in this appeal. Notably, the defendant has not claimed that the state presented insufficient evidence to sustain his conviction. We are not persuaded by the defendant's unsupported, generalized claims that his conviction was unfair. The judgment is affirmed. In this opinion the other judges concurred. "Q. . . . Did you tell him that the spirits told you what happened that evening and that you didn't remember anything? "A. No sir, you're making those things up. That's not what happened. "Q. Sir, didn't you also tell him that you walked into the bathroom and slipped there and fell? What's your answer, sir? "A. I haven't said that I slipped. "Q. You never told anyone that, you never told the nurses at Yale that? "A. Neither." Indeed, the court informed the defendant: "[I]f you wish to call [the investigator] for the purpose of examining him about the current and any observations that he had of the alleged victim at the time of the March 5, 2004 interview, I would allow that."

Opinion FOTI, J. On December 8, 1996, John Fred Dean was shot and killed inside a Bridgeport nightclub known as the Factory. The state charged the defendant, Michael A. Holbrook, with Dean's murder. In 2003, the defendant's first jury trial ended in a mistrial. After a second trial, in 2004, the jury found the defendant not guilty of murder but found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). The jury also made a finding that the defendant had committed a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The trial court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of thirty-five years incarceration. The defendant now appeals from the judgment of conviction, claiming that the court improperly (1) conducted a hearing with an incarcerated witness in the courthouse cell block, (2) permitted that witness to testify as to why he feared for his safety, (3) restricted the scope of cross-examination of that witness and (4) admitted into evidence the written statements of three other witnesses. We affirm the judgment of the trial court. I The defendant first claims that the court improperly conducted a hearing with an incarcerated witness in the courthouse cell block. The witness, Demetrius Brown, had been transported to the courthouse in order to testify for the state at the defendant's trial but refused to leave the cell block and to be escorted to the courtroom because he feared for his safety. After Brown physically resisted an attempt to remove him from his cell, the court decided to visit the cell block with the courtroom clerk, the court monitor, the prosecutor and defense counsel but denied the defendant's request to be present. In the cell block, the court found Brown in contempt and imposed a six month term of imprisonment. The defendant claims that the court's contempt proceeding against Brown in the cell block deprived the defendant of (1) the right to a public trial and (2) the right to be present. We disagree with both parts of his claim. A As to the first part of the defendant's claim, which is that the court denied him the right to a public trial, "[a] defendant's right to a public trial is guaranteed in all criminal proceedings by the sixth amendment to the United States constitution. . . . This right is made applicable to the states through the fourteenth amendment . . . and also is encompassed in article first, § 8, of the Connecticut constitution. . . . Public trials vindicate an important public interest in the judicial system and help ensure testimonial trustworthiness. . . . Openness of a criminal trial enhances both its basic fairness and the appearance of fairness, which is essential to public confidence in the system. . . . The right to a public trial, however, is not absolute. . An accommodation must sometimes be made between the individual's right to a public trial and other societal interests that might justify closing the courtroom to the public. . In light of these concerns, a court's power to order a closure of the courtroom should be sparingly exercised, and limited to those situations where closure is demonstrably necessary to further the administration of justice." (Internal quotation marks omitted.) State v. Eric M., 79 Conn. App. 91, 96-97, 829 A.2d 439 (2003), aff'd, 271 Conn. 641, 858 A.2d 767 (2004). In the present case, the court's contempt proceeding against Brown in the cell block did not constitute a closure of the courtroom and did not implicate the defendant's right to a public trial. The court decided to conduct the proceeding in the cell block because Brown had resisted appearing in the courtroom to testify. In making its decision, the court considered the disruption that could have accompanied the forcible removal of Brown from his cell. Because the proceeding concerned Brown, not the defendant, and related to Brown's conduct, not the charges against the defendant, it did not affect the defendant's right to a public trial. B As to the second part of the defendant's claim, which is that the court denied him the right to be present, "a criminal defendant has a constitutional right to be present at all critical stages of his or her prosecution. . . . Although the constitutional right to be present is rooted to a large extent in the confrontation clause of the sixth amendment, courts have recognized that this right is protected by the due process clause in situations when the defendant is not actually confronting witnesses or evidence against him. . In judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the [fullness] of his opportunity to defend against the charge." (Citations omitted; internal quotation marks omitted.) State v. Lopez, 271 Conn. 724, 732, 859 A.2d 898 (2004). In the defendant's view, if he had been present at the contempt proceeding against Brown, he would have been able to assist with his attorney's preparation for cross-examination of Brown as to why he feared testifying. On the basis of our review, we determine that the defendant's presence would have been of minimal importance to his defense and that the proceeding did not constitute a critical stage of his prosecution. The proceeding concerned Brown, not the defendant, and therefore the defendant's absence did not affect the fairness of the proceeding. For the same reason, the defendant's presence would not have had a reasonably substantial relationship to the fullness of his opportunity to defend himself. We therefore reject the defendant's claim. II The defendant next claims that the court improperly permitted Brown to testify as to why he feared for his safety. We disagree. Brown witnessed the shooting of the victim, Dean, and provided a written statement to the police approximately ten months later. He agreed to testify after the court had found him in contempt for refusing to leave the courthouse cell block. Defense counsel cross-examined him regarding the time at which he had arrived at the Factory on the night of Dean's shooting. Brown then testified that he felt nervous. When defense counsel asked him to explain whether he felt nervous in the courtroom or only when he had given his written statement, he replied: "Both." Defense counsel again asked him whether he felt nervous in the courtroom, and he replied that he did. Defense counsel then stated: "Well, just look at me and see if you can block out everybody else in this room, okay?" Thereafter, Brown informed the court during a recess that he felt intimidated by a spectator in the courtroom. The court then excluded that spectator from the trial. On redirect examination, the prosecutor asked Brown whether the spectator who had been excluded had intimidated him, and Brown answered: "Yes." Defense counsel then objected on relevance grounds. The court overruled the objection but granted defense counsel's request for a limiting instruction. The court told the jury: "I want to make it clear to the . . . jury, that . . . there's no evidence . . . that the defendant in any way participated [in] or encouraged [the intimidation of Brown], That's all I can say to you." Brown then testified that the spectator "shook his head, like he gonna get me." "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence." (Internal quotation marks omitted.) State v. Powell, 93 Conn. App. 592, 599, 889 A.2d 885, cert. denied, 277 Conn. 924, 895 A.2d 797 (2006). It is clear from the transcript that defense counsel delved into the issue of Brown's nervousness and therefore opened the door to rebuttal by the prosecutor. Although the rebuttal evidence may have been inadmissible on other grounds, the court acted within its discre tion in permitting the state to question Brown regarding the alleged intimidation. Ill The defendant next claims that the court improperly precluded him from cross-examining Brown as to his testimony before a federal grand jury in a matter involving drug dealing. We disagree. "Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . [I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion. . . . "The court's discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution]. . . . The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against Mm. . . . The primary interest secured by confrontation is the right to cross-examination . As an appropriate and potentially vital function of cross-examination, exposure of a witness' motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from wMch it could appropriately draw inferences relating to the witness' reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. . In determinmg whether such a violation occurred, [w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-exammation viewed in relation to the issues actually litigated at trial." (Citations omitted; internal quotation marks omitted.) State v. Hedge, 93 Conn. App. 693, 697-98, 890 A.2d 612, cert. denied, 277 Conn. 930, 896 A.2d 102 (2006). The defendant argues that the purpose of cross-examining Brown as to Ms federal testimony regarding drug dealing was to impeach Ms credibility. In the defendant's view, if the court had not restricted the cross-examination, he would have been able to show that Brown had testified inconsistently as to drug dealing. Examining the nature of that inquiry, we conclude that it was not relevant to the defendant's trial because Brown's involvement with drug dealing did not relate to the issue at hand, namely, whether the defendant had shot Dean. The defendant's constitutional right to confront Brown therefore was not violated, and the court did not abuse its discretion in precluding the cross-examination. IV The defendant's last claim is that the court improperly admitted into evidence the written statements of (1) Gary Browning, (2) Tawana Allen and (3) Joyel Smith. We disagree. A We first address the written statement of Browning, who was incarcerated at the time of the defendant's trial. Browning witnessed Dean's shooting and provided a statement to the police approximately two and one-half years later, on July 1, 1999. Browning indicated in his statement that Dean "slapped [a woman] and she went and got some dude. They started fighting [Dean] and the dude and [Dean] was beating him up and then the dude shot [Dean]." Browning identified the "dude" as the defendant. At the defendant's trial, Browning testified that he had heard gunshots and had seen muzzle flashes near the defendant's hand, but had not seen a gun. The state then moved to admit into evidence Browning's statement as a prior inconsistent statement pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant objected that the statement was not inconsistent with Browning's testimony, but the court overruled the objection and admitted the statement into evidence. "A Whelan claim is evidentiary in nature and, accordingly, the defendant bears the burden of establishing that the trial court's erroneous ruling was harmful to him in that it probably affected the outcome of the trial. . . . The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. . On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused." (Internal quotation marks omitted.) State v. Francis, 90 Conn. App. 676, 685, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005). We conclude that Browning's statement was inconsistent with his testimony because he stated that the defendant had shot Dean, but testified that he had not seen the defendant with a gun. The court did not abuse its discretion in admitting the statement pursuant to Whelan. B We next address the written statement of Allen, which she provided to the police on July 13, 2000. Allen testified at the defendant's trial that she did not remember whether she had been at the Factory on the night of Dean's shooting and also did not remember giving a statement to the police. The state then sought to introduce Allen's statement into evidence. Allen indicated in her statement that she had been at the Factory on the night of Dean's shooting and had been standing near him but had had her back turned when he was shot. Allen stated that, after the shooting, "[the defendant] had another guy pinned up against the wall, with his arms in the air and pointing the gun at him. [The defendant] noticed that I was in the room and he turned around, smoke was still coming out [of] the gun, when he turned around, the gun was still in his hand and he noticed who I was . . . ." The defendant objected to that portion of Allen's statement on relevance grounds, arguing that it was more prejudicial than probative. The court overruled the objection, finding that that portion of Allen's statement was not overly prejudicial to the defendant and that the statement would be less understandable to the jury if it were redacted. Whether to redact a written statement before admitting it into evidence is a matter of the court's discretion. See State v. Antonio A., 90 Conn. App. 286, 296-97, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006). As to the relevance of the portion of Allen's statement that the defendant sought to redact, "[r] elevan!; evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative." (Internal quotation marks omitted.) State v. Rodriguez, 91 Conn. App. 112, 122, 881 A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423 (2005); see also Conn. Code Evid. § 4-1 through 4-3. We conclude that the challenged portion of Allen's statement was highly probative because it indicated that the defendant had brandished a smoking gun immediately after Dean had been shot. There was no evidence that anyone else at the nightclub had possessed a gun at the time and could have shot Dean. The court therefore did not abuse its discretion in refusing to redact Allen's statement. C Finally, we address the written statement of Smith, which she provided to the police on December 9, 1996, one day after Dean's shooting. The state sought to introduce Smith's statement into evidence after she testified at the defendant's trial that she did not remember giving the statement. According to her statement, Smith had been at the Factory with her friend, Charlene Haixigan, on the night of Dean's shooting. After fighting with several other women, Smith and Harrigan were ejected from the nightclub and then confronted in the parking lot by those women, who sprayed acid in their faces. A short time later, Smith heard gunshots and then drove Harrigan to a hospital in order to seek treatment for the acid attack. Smith indicated in her statement that she was acquainted with the defendant. The detective who recorded Smith's statement asked her if she ever had seen the defendant with a gun. Smith replied: "Yes. This past summer. He had a thick silver gun. It wasn't the kind that you put the bullets in it; it had a clip and it keeps shooting, like an automatic. I think it was a Smith and Wesson [because] there's a rap song and it was playing, and in the song they say Smith and Wesson and he was saying the words and pointing to his gun. He usually rides around with the gun on his lap or on the side when he's riding around in his car." The defendant objected to that portion of Smith's statement as irrelevant and too remote because the shooting occurred in December, 1996, and Smith had seen the defendant with a gun in the summer of 1996. The state countered that Smith's references to a "thick silver gun" and the Smith & Wesson name made that portion of her statement relevant because other evidence showed that the gun used to kill Dean was chrome and possibly a Smith & Wesson. The court found that that portion of Smith's statement was more probative than prejudicial and overruled the defendant's objection. "One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 805-806, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). Although Smith had seen the defendant with a gun several months before Dean's shooting, her statement as to that gun was relevant to the issue of whether the defendant's gun was the same gun that was used to kill Dean. We conclude that the court did not abuse its discretion in refusing to redact the challenged portion of Smith's statement. The judgment is affirmed. In this opinion the other judges concurred. The defendant also asserts that (1) the court's limiting instruction was inadequate and (2) the court should have granted his motion for a mistrial on the basis of the challenged testimony. As to the limiting instruction, the defendant did not object to it at trial and has not requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine, codified in Practice Book § 60-5. Accordingly, we decline to review the limiting instruction. As to the motion for a mistrial, our review of the transcript discloses that defense counsel did not move for a mistrial. Defense counsel stated that "if Your Honor is going to allow [Brown to testify as to why he fears for his safety], I'm going to ask for a mistrial." When the court permitted the testimony, however, defense counsel did not move for a mistrial. We therefore have no ruling to review. Our Supreme Court has adopted "a rale allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination." State v. Whelan, supra, 200 Conn. 753.

Opinion FLYNN, C. J. The defendant, William Aley, appeals from the judgment dissolving his marriage to the plaintiff, Susan Aley. He claims that the trial court (1) improperly proceeded to judgment in his absence, without adequate notice to him or an opportunity to be heard, (2) lacked jurisdiction to order a certain home equity payment obligation to be characterized as spousal support and nondischargeable in bankruptcy and that the home equity order lacked clarity, and (3) improperly entered certain financial orders without evidentiary support. We are not persuaded by the defendant's claim concerning lack of notice or his challenge to jurisdiction. However, pursuant to Practice Book § 60-5, we deem it necessary for the proper disposition of this case to remand it for a further articulation of certain bases of the court's factual findings. We defer deciding the remaining claims until receipt of further articulation. The parties were married in July, 1996, and there was one minor child issue of the marriage, who was six years old at the date of dissolution. In November, 2004, the plaintiff commenced her action seeking dissolution of the marriage. The court held a hearing on July 28, 2005, at which the pro se defendant was not present. The plaintiff testified that the defendant was vacationing in Romania and had indicated that he would not be present for the divorce proceeding. Ruling orally, the court stated that it was adopting paragraphs one through twelve, inclusive, of the plaintiffs claims for relief, making them the orders of the court and incorporating them by reference into the judgment. The court, as requested in paragraphs one and two of the plaintiffs claims for relief, dissolved the parties' marriage and awarded the parties joint custody of the minor child, with physical residence with the plaintiff and reasonable rights of visitation with the defendant. The court, by incorporating the remaining paragraphs, entered other financial orders for asset distribution and payment obligations. It made no explicit findings underlying those orders. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that the court improperly proceeded to judgment in his absence, without adequate notice to him or an opportunity to be heard. We are not persuaded. At the outset, we note the principles underlying the necessity for adequate and proper notice. "It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard." (Internal quotation marks omitted.) Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). "It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved." (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993). Our review of the record reveals that the defendant was given more than three months notice of the July 28, 2005 court date. The court stated in its notice, dated April 26, 2005, that "this case is assigned for pretrial and trial to the family limited list on 07/28/05 at 10:00 a.m. . . . You must be ready to proceed with your witnesses and have all required paperwork prepared!" The plaintiff testified at the hearing that she spoke with the defendant approximately two weeks prior to the court date and that he indicated that he would be on vacation and would not be attending the divorce proceeding. The defendant could have made a motion for a continuance, but he did not. "[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001). We, therefore, reject the defendant's claims and conclude that he had both adequate notice and an opportunity to be heard. He chose not to attend the proceedings and sought no continuance. Therefore, the court properly proceeded to judgment. II The defendant next claims that the court did not have jurisdiction to order that certain second mortgage payment obligations were in the nature of spousal support and nondischargeable for bankruptcy purposes. We conclude that the court had jurisdiction. The defendant has not cited any legal authority or provided us with any analysis as to why he claims the court did not have jurisdiction. Generally, "[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999). However, "a claim that the court lacks jurisdiction over the subject matter cannot be waived and must be addressed whenever it is brought to the court's attention. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . Accordingly, [t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Citations omitted; internal quotation marks omitted.) Manifold v. Ragalia, 94 Conn. App. 103, 116—17, 891 A.2d 106 (2006). It is axiomatic that jurisdiction "involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created." Connecticut State Employees Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). General Statutes § 46b-82 (a) grants the Superior Court the power "[a]t the time of entering the decree" to "order either of the parties to pay alimony to the other . . . ." General Statutes § 46b-82 (a). Additionally, General Statutes § 46b-l grants the Superior Court the power to order support of minor children. We therefore reject the defendant's claim that the court lacked the power to enter as part of its support orders at the time of the dissolution of the marriage an order of payment of a home equity loan. See also Larson v. Larson, 89 Conn. App. 57, 872 A.2d 912, cert. denied, 274 Conn. 915, 879 A.2d 892 (2005). III We next address the defendant's claim that the court improperly entered certain financial orders without evi-dentiary support. We deem it necessary for the proper disposition of this case to remand for further articulation on two points. First, we direct the court to articulate the value of the marital home, which it found upon the entry of the dissolution decree. Second, we direct the court to articulate the defendant's gross and net earnings, which it found upon the entry of dissolution. The case is remanded with direction to articulate the value of the parties' marital home and the defendant's gross and net earnings. In this opinion DiPENTIMA, J., concurred. The defendant withdrew his challenge to the court's postjudgment award of attorney's fees. The court further ordered, with respect to the marital residence, that the defendant pay or make satisfactory arrangements with the utility companies within twenty days of the date of judgment.

Opinion FLYNN, C. J. The petitioner, Jermaine Young, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He had been sentenced to a total effective term of fifty years incarceration after the jury found him guilty of the crimes of murder and conspiracy to commit murder in violation of General Statutes § 53a-54a and 53a-48, respectively. This court affirmed his conviction in State v. Young, 68 Conn. App. 10, 791 A.2d 581, cert. denied, 260 Conn. 909, 795 A.2d 547 (2002). His habeas appeal is based on two grounds. In the petitioner's first claim, he challenges the court's refusal at the habeas trial to permit habeas counsel to subpoena a former juror who had deliberated and joined in the verdict finding him guilty. His second claim attacks a finding that a conversation between that same juror and a coworker occurred after her service had ended. We affirm the judgment of the habeas court and consider each of the petitioner's claims in turn in light of well established review standards. The following facts are relevant to our resolution of the petitioner's appeal. After a jury trial, the petitioner was convicted on October 27, 1999. An alleged juror misconduct issue was raised before the habeas court in the petitioner's amended petition for a writ of habeas corpus filed August 4,2003, when the petitioner pleaded that during the course of the criminal trial, before deliberations had commenced, a member of the jury had engaged in misconduct by speaking with an individual concerning the evidence in the case. The petitioner further pleaded that the juror asked the other individual to pray with her "because the juror said they were going to find the [petitioner] guilty." Subsequently, in November, 2003, the respondent, the commissioner of correction, filed a request for a more specific statement, asking the petitioner to specify the name of the juror and of the other person who was involved. The petitioner's habeas counsel advised the respondent that the juror was named N, and Ramona Avent was named as the other person. The respondent moved for a preliminary hearing and supervisory order requesting that the court conduct a preliminary hearing and issue supervisory orders before any juror would be called to testify. The court, on October 28, 2004, held a preliminary hearing at the respondent's request to deal with the procedure to be followed during the habeas trial. At that hearing, the petitioner's habeas counsel informed the court that the petitioner had learned of N's conversation with Avent 1'rom a fellow prison inmate who also knew Avent. At this preliminary hearing, the petitioner's habeas counsel agreed not to subpoena N until the court made a decision as to how the petitioner's counsel was to proceed. The court made no ruling at the preliminary hearing regarding whether the petitioner could subpoena N, but indicated that it believed that the proper starting place for the hearing on the habeas petition was with the petitioner's fellow inmate and Avent. The court held a second hearing on January 13, 2005, to determine whether there was cause to explore further the allegation of juror misconduct. At this hearing, the court heard testimony from Avent. The petitioner did not call his fellow inmate to testify. The court dismissed the habeas petition from the bench stating that it had heard testimony from Avent, who did not remember the conversation with N or whether it was jury duty or the jury experience that prompted the suggestion to pray. The court determined that there was hardly a suggestion of juror misconduct, particularly since the case had finished at the time the conversation took place. Certification to appeal was granted. This appeal followed. I The petitioner first claims that the court improperly refused to permit habeas counsel to subpoena a former juror. We disagree. We begin by setting forth our standard of review. Our role on appeal is limited to a "consideration of whether the trial court's review of an alleged juror misconduct can fairly be described as an abuse of discretion. " (Internal quotation marks omitted.) State v. Roman, 262 Conn. 718, 727, 817 A.2d 100 (2003). Jurors are not permitted to discuss the case with persons who are not on the panel on which they sit prior to the rendition of their verdict and its acceptance by the court. State v. Rhodes, 248 Conn. 39, 46-47, 726 A.2d 513 (1999). Setting out the petit juror's oath, General Statutes § 1-25 provides, inter alia, "You solemnly swear or solemnly and sincerely affirm, as the case may be . . . that you will not speak to anyone else, or allow anyone else to speak to you, about this case until you have been discharged by the court; and that when you reach a decision, you will not disclose the decision until it is announced in court; so help you God or upon penalty of perjury." General Statutes § 1-25. A defendant bears the burden of showing actual prejudice stemming from any such claimed violation of the prohibition against such improper juror discussions or disclosures in which the trial judge's role was not invoked. State v. Rhodes, supra, 47. "To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment . a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality." (Internal quotation marks omitted.) State v. Roman, supra, 262 Conn. 726. This standard is instructive in habeas appeals as well because it is derived from the law of "procedural due process . . . ." (Internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 529-30, 668 A.2d 1288 (1995). Our Supreme Court has identified four considerations that guide the inquiry: (1) the right of an accused to an impartial jury free of improper influence; (2) the risk of deprivation of that right; (3) the state's interest in finality of judgments; and (4) protecting jury privacy, the integrity of its deliberations and maintenance of public confidence in the jury system. Id., 529-31. The "form and scope" of the inquiry by the court is left to the sound discretion of the court. Id., 529. In light of the state's strong interest in preventing juror harassment, juror testimony has been deemed unnecessary when the evidence presented of claimed misconduct was highly speculative. State v. Dorans, 261 Conn. 730, 748-53, 806 A.2d 1033 (2002), overruled in part on other grounds by Label Systems Corp. v. Aghamoham-madi, 270 Conn. 291, 316-17, 852 A.2d 703 (2004). The alleged juror misconduct was never brought to the trial court's attention within the three year statute of limitations for a new trial, as provided by General Statutes § 52-582. In this case, the petitioner was found guilty of murder and conspiracy to commit murder on October 27,1999, and sentenced to fifty years imprisonment on December 23, 1999. More than three years later, the petitioner, on August 4, 2003, filed his amended petition for a writ of habeas corpus, requesting a new trial on the ground of newly discovered evidence. Additionally, nothing in the record of the testimony of Avent, the juror's coworker, references any discus sion of the facts in the petitioner's case, the content of jury deliberations, any tentative vote taken by the panel or its tentative verdict. In short, nothing in Avent's testimony indicates that N provided any "pipeline" into the jury's activities during deliberations. We find nothing in the habeas evidentiary record to indicate that N violated her oath. No evidence was adduced from court staff at the petitioner's jury trial as to the schedule the court followed, or from the juror's employer regarding what days and times she was at work in relation to that court schedule. As the habeas court observed, the facts of when the verdict was returned and when N came back to work easily could have been ascertained without calling N to testify. That other evidence from court personnel and N's employment attendance records was not produced. Instead, we are asked to speculate and to conclude on appeal that N's testimony was necessary more than three years later because her prayer session occurred before the verdict in the case was returned. There was no compelling need for N's testimony. We therefore conclude that the evidence that the petitioner claimed should have warranted the court to grant him permission to subpoena N was of the highly speculative kind that our Supreme Court in State v. Dorans, supra, 261 Conn. 753, deemed insufficient to require juror testimony. We therefore further conclude that the court did not abuse its wide discretion to determine the scope of its inquiry on the claim of juror misconduct; see State v. Brown, supra, 235 Conn. 531; and properly denied the petitioner's request to subpoena the juror to testify at the habeas trial. II We next turn to the petitioner's claim that the court improperly found that the conversation between N and her coworker, Avent, occurred after her service on the jury had ended. We disagree. We first set forth the standard of review. "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). The petitioner claims that the finding was clearly erroneous because Avent's testimony was inconsistent and, therefore, was an insufficient foundation for such a factual finding. Avent testified on direct examination that N "was a little uneasy about . . . coming off the case" and testified that she did not express what the uneasiness was but sensed that N was "uncomfortable." She further testified that she did not "pry" and did not recall any statement made by N that she was going to find the petitioner guilty. The petitioner, therefore, did not establish any violation of the juror's oath or harm from any conversation that occurred. The court found that Avent came across as a very intelligent, straightforward, candid person and found that nothing ever was said between N and Avent that the jury was "going to find him guilty." However, the petitioner contends that Avent's testimony was inconsistent in that she testified that N had told her that she was back from jury duty at the time the conversation occurred, but later, still on direct examination, testified that she "didn't know" whether N had come back to work permanently or whether she had not yet completed jury duty at the time of the conversation. What this argument ignores is the fact finder's primary role in determining what evidence to believe and to disbelieve and the axiom that the reviewing court must look at the whole record. Avent agreed on cross-examination by the prosecutor that the conversation between her and N had occurred after N had finished jury service. On direct examination, Avent indicated that N could have come back to work after having been on vacation. The court was entitled to credit the portion of Avent's testimony indicating that N's service was complete at the time they prayed. Viewing the entire evidence before us, we are not convinced that a mistake has been committed. Furthermore, the petitioner did not establish through the one witness called at the habeas trial that any improper disclosures were made by the juror to Avent and, therefore, he has suffered no harm. The judgment is affirmed. In this opinion the other judges concurred. We refer to the juror by her initial to protect her legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004). General Statutes § 52-582 provides in relevant part: "No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of . . . ."

Opinion ROGERS, J. The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to R and N, her two minor children. On appeal, she claims that the court (1) improperly concluded that R sustained a serious bodily injury under General Statutes § 17a-112 (j) (3) (F) and (2) erroneously found that it was in R's best interest to terminate the respondent's parental rights. We affirm the judgments of the trial court. The relevant facts are as follows. The respondent is a forty year old woman with a history of involvement with the department of children and families (department) dating back to her childhood when, at the age of nine, she was placed in the department's care due to the substance abuse and mental health problems of her mother. The two children who are the subject of the termination are R, bom September 24, 1993, and N, bom May 30, 2002. In 1999, the department received a report from a teacher that R, six years old at the time, was exhibiting sexually explicit behavior in the classroom. The department investigated the report, but did not open a case on the matter. The department received a similar report in 2001, which stated that R had told her teacher that the respondent's boyfriend, F, had kissed her and touched her vaginal area. The report stated further that R had exposed herself in the classroom and touched other children in a sexually inappropriate manner. The department investigated and substantiated the report, and the respondent signed a service agreement-safety plan that required her, inter alia, to refrain from using any form of physical discipline, not to allow her child to witness acts of violence and not to permit F into her apartment. Despite that agreement, the respondent and F continued their relationship, and their child, N, was bom on May 30, 2002. The child was bom with spina bifida, bilateral subluxed hips and bilateral club feet, all of which required surgery. As a result, N wears braces on both legs twenty-three hours a day and requires catheterization multiple times each day. The next report to the department came in August, 2003, following a domestic violence altercation between the respondent and F that occurred in the respondent's apartment. On that occasion and in the presence of R and N, F lost his temper, grabbed the respondent by the throat and forced her against a wall, which led to his arrest. The respondent thereafter signed another service agreement-safety plan that required, inter alia, that she not permit F to have unsupervised contact with the children and that she provide appropriate adult supervision twenty-four hours a day. On the morning of December 19,2003, the respondent assaulted R. As the court stated in its memorandum of decision: "[R] was slow in getting out of bed for school. At about 8 a.m., [the respondent] was trying to get [R] up, knowing the school van would come for her between 8:30 and 8:35 a.m. [The respondent] threatened to spank [R] if she did not get up. [R] responded by saying that she was sick and tired of getting spanked and told [the respondent], 'I hate you.' [The respondent] then grabbed [R] by the hair, pulled her out of bed, essentially threw her to the middle of the room and dropped her to the floor. [R] hit her elbow on the floor, causing a severe fracture." R did not attend school for days; rather, the respondent kept her home until the holiday break arrived. The respondent did not seek any medical treatment for R during that time. The court stated further: "Several days later, on December 23, 2003, [a department] social worker . . . had a home visit with the family. When she arrived, [the respondent] told [her] that [R] was at a friend's house. In reality, [R] was hiding from the worker at [the respondent's] direction. [The respondent] later admitted that she hid [R] because she was afraid [R] would be taken from her care if the worker saw [R's] injury. That night, knowing [the department worker] would be returning the following day, [the respondent] finally took [R] to [a hospital] for treatment. . On December 24, 2003, [the department worker] made another visit to the home at which time [the respondent] and [R] falsely stated to the worker that the injury was accidentally caused by [R's] jumping up and down on one foot. [R] ultimately had a cast placed on her arm . On January 8, 2004, [the department] arranged to interview [R] at school outside the presence of [the respondent]. At that time, she told [the department worker] initially that [F had] inflicted the injury. She also described her injuries, stating that her elbow was purple, black and swollen and hint a lot, causing her to cry every day. After further investigation, police officers confronted [the respondent], who first also stated that [F had] caused the injury, but later admitted that she caused the injury to [R. The respondent] was arrested and charged with assault in the third degree and risk of injury to a [child]. . On January 8, 2004, [R] and [N] were placed in [the department's] care as a result of a ninety-six hour hold. On January 12, 2004, coterminous petitions [to terminate the respondent's parental rights] were filed, and orders of temporary custody were issued by the court . . . ." R subsequently was placed with a foster mother, who observed R's aggressive behavior toward other children, which included hitting, pushing and tripping. The foster mother also observed R's "highly charged sexual conduct" and frequent masturbation, at one point asking R where she had learned such behavior. R replied that the respondent forced her do it while watching pornographic films with her. R explained that "if she didn't want to do it, her mother made her do it anyway." In addition, R told her foster mother that the respondent "would always pull her hair [and] would hit her with wooden spoons." A trial commenced in February, 2005, at which the court heard testimony from multiple therapists. Psychologist Mary H. Cheyne conducted clinical evaluations of both the respondent and R. Cheyne found that R had a bond with the respondent and noted "some indications that R holds herself responsible for her removal from the respondent's care." Cheyne opined that R is in need of "intensive psychological, individual therapy." As to the respondent, Cheyne concluded that she "struggles with anger management issues, domestic violence issues and inadequate parenting skills, particularly related to a child with [attention deficit hyperactivity disorder]. Of prime concern is her apparent tendency to value corporal punishment as a means of discipline." Therapist Stephanie Mancini treated R for a period of eleven months between 2004 and 2005. During those sessions, R told Mancini that "it was hard to love someone when they hit you and that she was mad, sad and scared when the respondent pulled out her hair." R stated that, in her foster home, she "didn't get slapped anymore" and told Mancini of an incident where the respondent "touched [her] vagina." Mancini testified that R was conflicted in her feelings toward the respondent and felt obligated to her, stating that "she is my [m]om, you know." Mancini opined that R needed to be in a setting that was safe and free from abuse, and that would provide support and therapy and which was both stable and long term. Clinician Suzanne Cohen-Freylikhman conducted a trauma evaluation with R during which R recanted her claim that F had sexually abused her and stated that the respondent had been the perpetrator. R said that she had "made up a bad lie" to protect the respondent and told Cohen-Freylikhman that the respondent "would make her masturbate while watching dirty movies." Cohen-Freylikhman recommended that R be placed in a therapeutic foster home without young children due to R's physical and sexual behavior toward other children. The court issued a thorough and well reasoned memorandum of decision on June 3, 2005, in which it found that there was ample evidence that R and N were neglected in that they were denied proper care and attention and permitted to live under conditions or associations injurious to their well-being. The court found that "the extreme injury inflicted on [R], and [the respondent's] subsequent failure to obtain medical treatment for many days amounted to a denial of proper care and attention of both children . . . . [R] has been abused and received a serious physical injury that was inflicted by other than accidental means." In addition, the court found that the respondent exposed R to sexual abuse. It stated: "Whether the abuse was peipetrated by [the respondent] or by [F] as [the department] originally believed, in either instance, both children were permitted to live in a home where sexual abuse occurred. [R's] significant behavioral problems demonstrate the serious effect the abuse has had on [R]." As to N, the court specifically found that "the domestic violence and physical and emotional abuse of [R] created an environment in the home such that [N] was denied proper care and attention physically, educationally, emotionally or morally and was permitted to live under conditions, circumstances or associations injurious to her well-being." The court further found that "the fact that [the respondent] severely injured [R] after entering into [two service] agreements is further evidence that the children were neglected." Finding that both children were neglected, the court turned its attention to the termination petitions. As to R, the only ground alleged in the termination petition was that the respondent, as a result of sexual molestation and severe physical abuse on her part, denied R the care, guidance or control necessary for her physical, educational, moral or emotional well-being under § 17a-112 (j) (3) (C). The court found by clear and convincing evidence that R's injuries at the hands of the respondent constituted nonaccidental serious physical injuries to a child. It found further that the respondent's "failure to obtain medical treatment for [R] for days after the injury constituted an act of parental omission that . . . denied her the care, guidance and control necessary for her well-being. Moreover, [the respondent] only took [R] for treatment after learning that [the department worker] and [the] father were planning to see [R] the following day." The court found that, in addition to serious physical injury, R suffered serious emotional injury and sexual abuse while living with the respondent. Accordingly, the court concluded that the respondent denied R, by reason of acts of parental commission and omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being. As to N, the sole ground alleged in the termination petition was that the respondent "committed an assault, through [a] deliberate non-accidental act that resulted in serious bodily injury of another child . of the parent" under § 17a-112 (j) (3) (F). The court found that, at trial, there was no real dispute as to whether the respondent's actions resulted in serious bodily injury to R or that the respondent failed to seek medical attention for R for several days thereafter. It continued: "[Section 17a-112 (j) (3) (F)] clearly sets out as a ground for termination of parental rights the assault of another child in the home. Here, although [N], a very young, medically fragile child, was not the subject of the physical abuse, she lived in the home with [R] arid [the respondent] and was subjected to an atmosphere which resulted in the severe assault of her sister. The court finds by clear and convincing evidence that this ground has been proven." The court also considered the seven factors delineated in § 17a-112 (k) and whether termination was in the best interests of the children. The court noted that "[although [the respondent] clearly loves her children, her long-term personal history of violence against her own children as demonstrated by [the respondent's] losing guardianship of [her first daughter, L] as a result of physical abuse, weighs strongly in favor of termination. . . . [The respondent] clearly should have understood or learned as a result of her experience with [L] that such physical violence could not be inflicted on her children. Nevertheless . . . [the respondent] continued to engage in conduct that required [the department's] involvement." The court therefore found that termination of the respondent's parental rights was in the best interests of R and N and rendered judgment accordingly. This appeal followed. I The respondent first claims that the court improperly concluded that R sustained a serious bodily injury under § 17a-112 (j) (3) (F). That statute authorizes atrial court to terminate parental rights if it finds by clear and convincing evidence that a parent "has committed an assault, through [a] deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent . . . ." It is undisputed that the respondent committed an assault against N's sibling through a deliberate, nonaccidental act that resulted in bodily injury. The dispositive question is whether it resulted in serious bodily injury to the child. A The respondent argues that she preserved this claim for appeal. During summation, counsel for the respondent stated: "If we are going to look at the basis of the coterminous petition being the injury to the elbow, precious little testimony was offered with regards to that to make [it] the basis for asking for the termination of both [R] and [N]." We therefore focus our attention on whether the court's conclusion that R sustained a serious bodily injury finds evidentiary support in the record. "Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling." (Internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 826-27, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). At trial, the court heard testimony regarding the December 19, 2003 assault of R by the respondent. Lisa Peterson-Blinn, a social worker with the department, was asked how the respondent explained that assault. Peterson-Blinn testified that the respondent told her that "[R] was getting ready for school, she wasn't moving fast enough [and that] she, [R], said to her, I'm tired of you yelling and hitting me. I guess she pulled her hair a lot. And [R] said, I hate you. And when [R] said that to [the respondent, the respondent] picked her up by the hair and the arm and threw her, causing her to hit her arm on the floor and break it." Moreover, R detailed the assault to Cheyne as follows: "[The respondent] was trying to wake me up. I gave her a fit and said I hated her. I was getting dressed and she ran over, grabbed my hair, held my arm and threw me on the floor." At trial, the respondent admitted to causing R's injuries, stating that "before I knew it, I had taken her by the hair and pulled her across the floor and she had come down on her elbow." In evaluating the severity of R's injury, the court also heard testimony concerning the respondent's failure to seek medical attention for R for almost five days following the assault, despite the fact that the elbow was fractured. It was undisputed at trial that the respondent purposely kept R home from school and did not seek medical attention due to her fear of department intervention. As R stated to investigator Pedro Nunez, who interviewed R on January 8, 2004, her elbow "hurt a lot and was purple, black and swollen, causing her to cry every day." When medical attention finally was provided to R, the injuries to the child's elbow required a cast to be placed on her arm so that it was immobilized and could begin healing. Our standard of review requires us to indulge every reasonable presumption in favor of the court's ruling. In re Jermaine S., supra, 86 Conn. App. 827. In view of the evidence in the record, we cannot say that the determination reached by the trial court that R sustained a serious physical injury is clearly erroneous. B The respondent also asks us to define the term "serious physical injury" as it is used in § 17a-112 (j) (3) (F). Like many other terms contained in our child welfare statutes, that term is not defined by statute. See General Statutes § 17a-93. The respondent suggests that we import the definition supplied by our criminal code. We decline that invitation. The General Assembly chose not to define the term "serious physical injury" as it is used in our child welfare statutes. It further declined to import the criminal definition provided by General Statutes § 53a-3 (4), despite having done so in other statutes. See, e.g., General Statutes § 14-223 and 29-136. As the respondent correctly notes, when a statute does not supply a definition or a term, its "commonly approved usage" governs. General Statutes § 1-1 (a). Our Supreme Court has explained that "[t]o ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term." In re Darlene C., 247 Conn. 1, 11 n.29, 717 A.2d 1242 (1998); see also State v. Tutson, 278 Conn. 715, 732, 898 A.2d 598 (2006). The word "serious" is defined in Webster's Third New International Dictionary as "such as to cause considerable distress, anxiety, or inconvenience." The record before us contains ample evidence that the physical injury R sustained was serious. The assault by the respondent caused a severe fracture to the child's elbow. The injury required casting. The distress R endured as a result of this injury continued for weeks. Three weeks after the assault occurred, R stated that her elbow "hurt a lot and was purple, black and swollen, causing her to cry every day." The seriousness of the injury was magnified by the respondent's tactical decision to not seek medical aid for R for almost five days in an effort to evade department detection. Accordingly, the court properly found that R suffered a serious physical injury. C The respondent also alleges a denial of her substantive due process rights. The respondent failed to preserve that claim at trial and now requests Golding review. That effort is unavailing. The mere invocation of the word "Golding" is insufficient to trigger such review of an unpreserved claim. Rather, analysis is required. "The [respondent's] failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned." (Internal quotation marks omitted.) State v. David P., 70 Conn. App. 462, 474, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002). Accordingly, we decline to review this unpreserved claim. II The respondent also claims that the court erroneously found that it was in R's best interest to terminate the parental rights of the respondent. It is well settled that we will overturn the trial court's decision that the termination of parental rights is in the best interest of the children only if the court's findings are clearly erroneous. In re Daniel C., 63 Conn. App. 339, 367, 776 A.2d 487 (2001). The respondent offers scant analysis of this claim, which is predicated solely on the court's finding that a bond existed between R and the respondent. Our courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child's best interest to terminate parental rights. See, e.g., In re Tyqwane V., 85 Conn. App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn. App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn. App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Furthermore, the existence of a bond between parent and child can spawn negative consequences, such as in this case, in which R attempted to protect the respondent from discovery of the abuse. The record reveals that R initially identified F as the perpetrator of sexual abuse in an effort to protect the respondent; as R put it, she "made up a bad he" to protect her mother. The narrative report of the department's January 8, 2004 interview with R likewise indicates that R originally stated that F had broken her elbow; R later confessed that it actually was the respondent who caused the injury. In addition, R exhibited "some indications that R holds herself responsible for her removal from the respondent's care." The record also contains evidence that R has strong negative feelings about the respondent. R acknowledged to Cheyne that she worries about the respondent and told Mancini that "it was hard to love someone when they hit you." R also stated that, at her foster home, she "[did not] get slapped anymore." Mancini further testified that R was conflicted in her feelings toward the respondent and felt obligated to her, stating that "she is my [m]om, you know." During one session, R asked Mancini "if she had the right to be mad at [the respondent]." When the department attempted to facilitate reunification with regular visits, R stated that "she did not wish to have a [further] visit because [the respondent] made her feel bad and was always mad at her." Ultimately, R's therapist recommended that visitation be suspended due to the detrimental effect it had on R and R's own expressed desire not to visit because the respondent "made her feel bad." The negative emotional aspects of R's relationship with the respondent amply support the court's finding that it was in the child's best interest to terminate the parental rights of the respondent. Finally, and perhaps most significantly, whether a bond exists between parent and child is but one consideration that a trial court must contemplate. The record is replete with evidence that the respondent exposed R to physical and sexual abuse, which we already have discussed in detail. The court also credited the testimony of various therapists who detailed the emotional abuse R endured and her resulting behavioral problems. Additionally, the guardian ad litem for R testified that "R's best interest would be to remain in the foster home, the preadoptive home that she's in, and to continue to finalize that adoption and make her stabilized where she is." In light of the foregoing, we conclude that it was not clearly erroneous for the court to have found that it was in the best interest of the child to terminate the parental rights of the respondent. The judgments are affirmed. In this opinion the other judges concurred. The court also terminated the parental rights of R's father. Because he has not appealed, we refer in this opinion to the respondent mother as the respondent. General Statutes § 17a-112 (j) (3) (F) authorizes the trial court to terminate parental rights if it finds by clear and convincing evidence that a parent "has committed an assault, through [a] deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent . . . ." Guardianship of a third child, L, bom in 1986 and not a subject of the present proceedings, was transferred to L's paternal grandmother in 1997 following confirmation of physical abuse and physical and emotional neglect on the part of the respondent. General Statutes § 53a-3 (4) defines serious physical ipjury as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . ." The respondent argues that serious is synonymous with grave or life threatening. We disagree. Grave is defined as meaning "very serious"; (internal quotation marks omitted) State v. Peeler, 271 Conn. 338, 454, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); which necessarily suggests some degree greater than serious. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id. The first two questions relate to whether a respondent's claim is renewable, and the last two relate to the substance of the actual review. See State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). The court also found that R had established a bond with her foster parents.

Opinion SCHALLER, J. The defendant, Kenneth Williams, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135. On appeal, the defendant claims that the trial court improperly denied (1) his motion for a mistrial, which was made on the basis of the state's late disclosure of witnesses and police reports, and (2) his motion for a judgment of acquittal that alleged insufficient evidence. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On June 25, 2002, Andrew Waller was working alone as an attendant at the Hess gasoline station at 1159 Whalley Avenue in New Haven. Waller, who was working the 11 p.m. to 7 a.m. shift, was stationed in a small, enclosed kiosk, which consisted of a large glass window and sliding metal drawer in the front, and a single door in the rear. At approximately 5 a.m., the defendant approached the front of the kiosk and, claiming that his car had overheated, asked Waller for assistance. Waller directed the defendant to a water faucet at the rear of the kiosk. The defendant then requested a container to hold the water, at which point Waller instructed the defendant to go to the door of the kiosk, where Waller would give him a water jug. As Waller unlocked the door, the defendant and another man began to force their way inside the kiosk. Despite Waller's attempts to keep the door shut, the men eventually gained entry. The defendant was the first to enter and proceeded directly to the front of the kiosk where he removed "less than $100" from the cash drawer. Meanwhile, the other man, later identified as Donald Payne, physically struggled with Waller. After emptying the cash drawer, the defendant walked toward the door. That required him to move between Payne and Waller. As the defendant maneuvered through that narrow space, he grabbed Waller and began to grapple with him. Payne then moved to the front of the kiosk and removed two cases of Newport cigarettes. Thereafter, the defendant and Payne exited the kiosk, and Payne placed the cigarettes into a vehicle. Prior to leaving, the defendant turned to Waller and, while gesturing to his waist, instructed Waller not to call the police. As the two men fled the scene, Waller observed their vehicle, which was a gray-silver four door car, and recorded its license plate number. He then immediately called 911. On the basis of the information provided by Waller, the police were able to trace the car to its owner, Larry Nelson. Nelson informed the police that he and several other individuals had spent the evening of June 24, 2002, at the defendant's residence and that during that evening, the defendant had asked to borrow Nelson's car. Nelson permitted the defendant to borrow the car, and the defendant left the residence for approximately fifteen minutes. When the defendant returned, Nelson observed him remove Newport cigarettes from the backseat of the automobile. On June 17, 2002, the defendant was arrested and charged with robbery in the second degree in violation of § 53a-135 (a) (1). At trial, the state introduced into evidence a video surveillance tape of the crime, as well as the testimony of Waller and several police witnesses. On September 15, 2003, the defendant was convicted on the robbery charge and pleaded guilty to being a persistent serious felony offender pursuant to General Statutes § 53a-40 (c). The court rendered judgment in accordance with the verdict, and on November 26,2003, sentenced the defendant to a term of ten years incarceration. This appeal followed. I The defendant first claims that the court improperly denied his motion for a mistrial. Specifically, the defendant argues that he was prejudiced by the state's late disclosure of exculpatory material. He asserts that his trial counsel was unable to prepare an adequate defense and that the late disclosure affected his trial strategy. We disagree. The following additional facts are necessary for the resolution of the defendant's claim. On the first day of trial, defense counsel notified the court that the state had failed to disclose in a timely manner certain police reports as well as a formal witness list. In response, the court held a conference prior to the start of evidence. At that conference, the state provided the court with the police reports as well as a copy of a witness list, which included the names of three police officers who were added after the conclusion of jury selection. The court reviewed the documents and, thereafter, delayed the start of evidence by one to two hours to allow defense counsel the opportunity to review the reports and the witness list. After reviewing the documents, the defendant moved for a mistrial, arguing that the disclosure was not made "at a time sufficiently prior to trial to enable counsel to research and investigate." The court, however, disagreed and found that the defendant had failed to demonstrate that the state's late disclosure created any prejudice. The court reasoned that because it had presided over the earlier trial of Payne, it was familiar with the facts of the robbery and did not think that the reports contained anything that would cause surprise or require a delay of the trial. The court explained that "the reason I gave you one hour to review those documents is because I concluded, having reviewed them myself, that you didn't need more than an hour, and because they are not voluminous documents and I haven't . . . heard you remark to the court that [the defendant] has been substantially prejudiced by the late disclosure." Accordingly, the court denied the defendant's motion for a mistrial. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court. . . . Put another way, [o]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant's case such that it denied him a fair trial." (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 87 Conn. App. 93, 99, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). In essence, the defendant claims on appeal that the state's late disclosure of exculpatory material prevented him from adequately researching, investigating and preparing a defense. "In [Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)], the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment]. . . . "It is well established that [e]vidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady. . . . Furthermore, we have stated: Brady does not mandate pretrial disclosure in all cases. . . . Where there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial. . . . The defendant bears the burden of proving that he was prejudiced by the failure of the state to make the disclosure earlier." (Citations omitted; internal quotation marks omitted.) State v. Thompson, 81 Conn. App. 264, 277-78, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004). In the present case, the police reports and the witness list were disclosed prior to the start of evidence. It is clear, therefore, that the documents were not suppressed, as the term is used in Brady. Consequently, the question becomes whether the disclosure came so late that it prevented the defendant from receiving a fair trial. Here, in an effort to ensure a fair trial, the court provided defense counsel one to two hours to review the limited materials and adequately addressed the late disclosure of the witness list by inquiring of the jurors whether any of them knew the three additional witnesses. "There is no denial of due process if the disclosed material can be utilized effectively at trial, and the defendant bears the burden of proving that he was prejudiced by the late disclosure." Id., 279. In support of his claim, the defendant argues that he "would have utilized" the substance of the police reports in cross-examining certain witnesses if the reports had been disclosed earlier. That argument ignores the reality that defense counsel made no use of the disclosed information at trial, despite having reviewed it, and that defense counsel did not request a continuance to allow for further review. See State v. Sinchak, 47 Conn. App. 134, 142, 703 A.2d 790 (1997) ("if the defendant wanted to use the statements to impeach the state's witnesses, he could have moved to recall the witnesses or requested a continuance to conduct further investigation and preparation"), appeal dismissed, 247 Conn. 440, 721 A.2d 1193 (1999). In sum, while we do not approve of the state's late disclosure, we cannot conclude that the defendant "was prejudiced by the failure of the state to make the disclosure earlier." (Internal quotation marks omitted.) State v. Thompson, supra, 81 Conn. App. 278. The defendant, therefore, has failed to meet his burden of proving that the state's disclosure of the police reports and witness list "came so late as to prevent the defendant from receiving a fair trial." (Internal quotation marks omitted.) Id. Accordingly, the court's denial of the motion for a mistrial was proper. II The defendant next claims that the court improperly denied his motion for a judgment of acquittal. Specifically, the defendant argues that the state failed to prove beyond a reasonable doubt that he used "physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . ." General Statutes § 53a-133. We disagree. At the outset, we set forth the applicable standard of review. "In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . "While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Internal quotation marks omitted.) State v. Leon-Zazuela, 80 Conn. App. 678, 681-82, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004). In support of his claim, the defendant argues that although Waller testified about having physically struggled with Payne, Waller never testified about any physical contact with the defendant. Additionally, the defendant argues that the video surveillance tape offered by the state showed close proximity between only the defendant and Waller, and did not show the defendant exerting physical force on Waller. Our resolution of the defendant's claim requires only brief discussion. Although it is true that Waller did not testify about physical contact with the defendant, a viewing of the surveillance tape unmistakably depicts the defendant grappling with Waller during the commission of the crime. As defense counsel conceded at oral argument, if physical force is depicted on the surveillance tape, the defendant's claim must fail. Thus, viewing that evidence in the light most favorable to sustaining the jury's verdict, we conclude that the state produced sufficient evidence that the defendant used "physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . ." General Statutes § 53a-133. Accordingly, we affirm the judgment of the trial court. The judgment is affirmed. In this opinion the other judges concurred. Only Hess employees are permitted inside the kiosk, and the rear door is kept locked at all times. Waller interpreted that gesture as a suggestion by the defendant that he was armed. The defendant's residence is at 11 Victory Drive in New Haven and is an estimated three to five minute drive from the Hess station. The defendant argues that the various police reports constituted exculpatory evidence in that they contained (1) a fingerprint analysis that indicated that his fingerprints were not found in Nelson's car and (2) a summary of Waller's statements that included his inability to identify the defendant in photoboards. Specifically, the court stated: "I don't think you've satisfied me . . . that the nondisclosure or failure to comply with the disclosure requested . . . has created any prejudice. I have not heard you comment to the court that, having reviewed the five reports that were handed over to you today, there's a need for any delay of the trial because of the noncompliance. I also have not heard you make any requests other than for a mistrial with regard to the introduction of any of the evidence contained in those reports. I did not see in my review of those reports that there's anything by way of surprise or anything that would require any delay in going forward today." With respect to the late disclosure of a formal witness list, the court's concern focused on the fact that three police officers were added to the state's witness list after the conclusion of jury selection. Accordingly, the court, prior to the start of evidence, inquired of the jurors whether any of them knew the three additional witnesses. None of the jurors knew the additional witnesses.

Opinion GRUENDEL, J. The plaintiff, Arthur D. Machado, an attorney, appeals from the judgment of the trial court dismissing his appeal from the reprimand issued to him by the defendant, the statewide grievance committee. The defendant affirmed the decision of its reviewing committee, reprimanding the plaintiff for violating rules 1.2 (a) and 1.4 (a) of the Rules of Professional Conduct. On appeal, the plaintiff claims that the court improperly (1) concluded that there was clear and convincing evidence that he violated rules 1.2 (a) and 1.4 (a), (2) refused to consider an affidavit he submitted after oral arguments and (3) determined that scienter was not a requirement in finding an ethical violation. We affirm the judgment of the trial court. The record discloses the following procedural history and relevant facts. The plaintiff is an attorney licensed by the state of Connecticut and was retained by the complainant, Scott V. Adams, to represent him in a bankruptcy proceeding. The plaintiff initially met with Adams in January, 2000, while Adams was in prison. At the meeting, Adams instructed the plaintiff to communicate with Kendra Cihocki because, as a prisoner, Adams had limited means of communication. Subsequent to the meeting, Cihocki delivered an $850 check to the defendant as a retainer for Adams' bankruptcy filing. Thereafter, Cihocki instructed the plaintiff to obtain the release of a sales tax lien that had been placed on a business owned by Adams and Cihocki. The plaintiff provided legal services in connection with the removal of the sales tax lien and, in so doing, depleted the retainer. Shortly thereafter, Cihocki picked up the file from the plaintiffs office and retained new counsel. No funds were left to pursue Adams' bankruptcy, and the plaintiff took no further action on the bankruptcy. Furthermore, the plaintiff did not inform Adams that he no longer was pursuing the bankruptcy proceeding on his behalf. In August, 2000, the plaintiff decided to close his office, and he released his last staff member the following month. By March, 2001, the lease on the plaintiffs office expired. During that time, Adams attempted to contact the plaintiff by telephone and mail regarding the status of his bankruptcy. Adams never received a response to his telephone messages or letters. On March 19, 2002, Adams filed a complaint with the defendant, alleging, among other things, that the plaintiff had failed to respond to letters and telephone calls made by Adams in 2000 and 2001. Adams also claimed that the plaintiff owed him $800 because the plaintiff did not perform work on the bankruptcy as initially agreed by both parties. The defendant's griev- anee panel, after considering Adams' complaint, filed its decision on August 1, 2002, finding probable cause to believe that the plaintiff had violated rules 1.2,1.4(a), 1.5 (b) and 1.15 (b) of the Rules of Professional Conduct. On October 1, 2002, a reviewing committee of the defendant conducted a hearing on Adams' complaint. Both Adams and the plaintiff testified at the hearing. On February 14, 2003, the reviewing committee issued its decision to reprimand the plaintiff for violating rules 1.2 (a) and 1.4 (a) of the Rules of Professional Conduct. On March 5, 2003, the plaintiff filed a request for review of the reviewing committee's decision, which, on March 20, 2003, the defendant affirmed. On April 17, 2003, the plaintiff appealed to the Superior Court pursuant to Practice Book § 2-38 from the defendant's decision reprimanding him. On October 20, 2004, the Superior Court dismissed the plaintiffs appeal and, on November 29,2004, denied the plaintiffs motion for reconsideration and reargument. On December 20, 2004, the plaintiff filed his appeal. I The plaintiff first claims that the court improperly affirmed the decision of the defendant, concluding that there was clear and convincing evidence that he violated rules 1.2 (a) and 1.4 (a) of the Rules of Professional Conduct. Specifically, the plaintiff argues that Cihocki was Adams' agent and, therefore, the plaintiff was obliged to follow her orders in assisting with releasing a sales tax lien. We are not persuaded. We set forth the applicable standard of review pursuant to Practice Book § 2-38 (f). "[I]n reviewing a deci sion of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence. . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof. "[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) Ansell v. Statewide Grievance Committee, 87 Conn. App. 376, 382-83, 865 A.2d 1215 (2005). Applying those principles to the facts before us, we conclude that the reviewing committee's findings, affirmed by the defendant and the court, are supported by clear and convincing evidence and that its conclusions are legally and logically correct. First, in its February 14, 2003 decision, the reviewing committee found by clear and convincing evidence that "[Adams] retained the [plaintiff] to represent him in his bankruptcy." The reviewing committee further determined that Cihocki was indeed Adams' agent for the bankruptcy filing, but ceased being Adams' agent when she directed the plaintiff to release a sales tax lien on property owned by her and Adams. "The [plaintiffs] failure to abide by [Adams'] decision to file for bankruptcy and failure to consult with [Adams] regarding the change in the scope of representation from bankruptcy to release of a sales tax lien constituted a violation of rule 1.2 (a) of the Rules of Professional Conduct." Second, the reviewing committee determined that the plaintiff did not keep Adams reasonably informed about the status of the bankruptcy. "By not informing [Adams] that his agent had instructed the [plaintiff] to change the scope of representation from bankruptcy to release of the sales tax lien, the [plaintiff] violated rule 1.4 (a) of the Rules of Professional Conduct." In his brief, the plaintiff claims that Cihocki had both actual and apparent authority to redirect his actions to release the sales tax lien. The plaintiff argues that Cihocki had actual authority because Adams gave her a power of attorney and told the plaintiff to follow her instructions. The plaintiff also contends that Cihocki had apparent authority because it was reasonable for him to assume that Cihocki's authority extended to the redirection of his work to encompass the sales tax lien. In support of his contention, the plaintifflists a number of facts, including that he "spoke to Ms. Cihocki on an almost daily basis" and "spoke with Adams at his initial meeting and at least once by telephone regarding the tax liens . . . .''He also claims that "the tax liens were among the debts to be discharged in the bankruptcy . . . ." We are not persuaded by those arguments. "It is well settled that [t]he nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn." (Internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606, 799 A.2d 1027 (2002). As a reviewing court "[w]e must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Dixon, 62 Conn. App. 507, 511, 772 A.2d 160 (2001). In the present case, the trier of fact, the reviewing committee, determined the scope of the agency relationship after reviewing evidence and hearing the testimony of both Adams and the plaintiff. We note that the committee, as the fact finder, was free to weigh the plaintiffs evidence and to determine the credibility of his testimony. The reviewing committee determined that the plaintiff failed to abide by Adams' decision to file for bankruptcy and failed to inform Adams regarding the change in the scope of representation from bankruptcy to release of a sales tax hen. Indeed, the plaintiff admitted that he was mistaken in not having a new fee agreement document prepared when Cihocki asked him to do work on the tax lien issue. The plaintiffs challenge to the reprimand issued by the defendant is, therefore, without merit. The plaintiff further argues that in accordance with rule 1.16 (a) (3) of the Rules of Professional Conduct, he was discharged by Adams and therefore could not have violated rules 1.2 (a) and 1.4 (a). Specifically, the plaintiff claims he was discharged when Cihocki picked up Adams' file from the plaintiffs office and retained new counsel. The plaintiffs argument is without merit. As discussed, the reviewing committee found by clear and convincing evidence that Cihocki no longer was Adams' agent when she directed the plaintiff to work on the release of a sales tax lien. In addition, the court noted that the plaintiffs failures to abide by Adams' decision to file for bankruptcy and to consult with Adams regarding the change in the scope of representation occurred prior to the removal of the file from the plaintiffs office. Even if the plaintiff was discharged when the file was picked up, the plaintiff already had violated rules 1.2 (a) and 1.4 (a). Under those circumstances, we conclude that the reviewing committee's findings, affirmed by the defendant and the court, are supported by clear and convincing evidence, and that the conclusion that the plaintiff violated rules 1.2 (a) and 1.4 (a) of the Rules of Professional Conduct is legally and logically correct. Accordingly, we affirm the judgment upholding the defendant's decision to reprimand the plaintiff. II The plaintiffs second claim is that the court improperly refused to consider an affidavit, executed by Cihocki, that was submitted by the plaintiff after the court hearing. The following additional facts are relevant to the plaintiffs claim. After hearing the oral arguments of Adams and the plaintiff on September 15, 2004, the court stated that it considered the matter to be fully submitted. Nonetheless, On September 17, 2004, the plaintiff submitted what he termed "supplementary material in support of [his] appeal," including an affidavit from Cihocki also dated September 17, 2004. The affidavit stated, among other things, that Cihocki had a power of attorney from Adams, but that it was lost. In its October 20, 2004 decision, the court stated that it would not consider Cihocki's affidavit in deciding the plaintiffs appeal from the defendant's decision. Citing Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 234, 578 A.2d 1075 (1990), the court noted that an appeal from the decision of the defendant is normally limited to a review of the record. Furthermore, the court stated that "Practice Book § 2-38 (d) provides, in pertinent part, 'The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the statewide grievance committee or reviewing committee are not shown in the record, proof limited thereto may be taken in the court.' " In his appeal to the court, the plaintiff did not argue that a procedural irregularity occurred. In his appeal to this court, however, the plaintiff claims that a procedural irregularity occurred because the defendant asserted both in its trial brief and at oral argument before the trial court that Cihocki did not have a power of attorney. We do not agree with the plaintiff that this is a procedural irregularity. "An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear the evidence." (Internal quotation marks omitted.) Salmon v. Dept. of Public Health & Addiction Services, 58 Conn. App. 642, 664, 754 A.2d 828 (2000), rev'd on other grounds, 259 Conn. 288, 788 A.2d 1199 (2002). The determination of whether the court improperly refused to consider Cihocki's affidavit is made under the abuse of discretion standard of review. "The scope of review by this court on a claim that the trial court abused its discretion is well settled. [E]very reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) Id. First, we note that the plaintiff mistakenly bases his claim on a procedural irregularity that allegedly occurred before the court, whereas Practice Book § 2-38 (d) limits the review of alleged procedural irregularities to instances occurring before the defendant or the reviewing committee. Second, we note that even if the statement in the defendant's trial brief and at argument — that Cihocki did not have a power of attorney— had been made before the reviewing committee or during the defendant's review of the committee's decision, that statement does not amount to a procedural irregularity. In this instance, the defendant's statement related to a lack of evidence, rather than to a finding of the court. Stressing a lack of evidence that points out a weakness in the opposing party's argument is not a procedural irregularity. Absent a showing of a procedural irregularity, the court was not obliged to accept the plaintiffs submission of supplementary materials after oral argument. Instead, the court properly refused to consider the affidavit because it was not part of the record and not a procedural irregularity. On the basis of the evidence and findings before us, we conclude that the court did not abuse its discretion in refusing to consider the affidavit. Ill The plaintiffs third claim is that the court improperly determined that scienter was not necessary to constitute a violation of rules 1.2 (a) and 1.4 (a) of the Rules of Professional Conduct. In Statewide Grievance Com mittee v. Presnick, 18 Conn. App. 316, 322, 559 A.2d 220 (1989), this court observed that a finding of bad faith or corrupt motive is not necessary to constitute a professional misconduct violation. Indeed, "[i]t is not a defense to an ethical violation that the attorney did not act in bad faith or intend to violate the code . . . ." (Citation omitted; internal quotation marks omitted.) Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 211, 804 A.2d 1027 (2002). The fact that the plaintiff may not have acted in bad faith plays no part in determining whether he violated rules 1.2 (a) and 1.4 (a) of the Rules of Professional Conduct. Therefore, regardless of the plaintiffs scienter at the time that he worked on Adams' bankruptcy, substantial evidence exists in the record that the plaintiff violated the two rules. The judgment is affirmed. In this opinion the other judges concurred. Rule 1.2 (a) of the Rules of Professional Conduct provides in relevant part: "A lawyer shall abide by a client's decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. . . ." Rule 1.4 (a) of the Rules of Professional Conduct provides: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Adams remained incarcerated through the date of the reviewing committee hearing on October 1, 2002. Adams claimed that he spoke with the plaintiffs secretary, left messages and wrote a letter to the plaintiff outlining how he wanted to proceed with the bankruptcy. The plaintiff contended that he never received any telephone calls or correspondence from Adams during that time. Although Adams specified $800 as full reimbursement, the actual amount was $850, which Ghiocki initially had given to the plaintiff as a retainer fee. Practice Book § 2-38 (a) provides in relevant part: "A respondent may appeal to the superior court a decision by the statewide grievance committee or a reviewing committee reprimanding the respondent . . . ." Practice Book § 2-38 (1) provides: "Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee or reviewing committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) in violation of constitutional, rules of practice or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, rescind the action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the superior court hereunder is a final judgment." "Actual authority may be express or implied. . . . Implied authority is actual authority circumstantially proved. It is the authority which the principal intended his agent to possess. . . . Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal . . . and [the] agent." (Citations omitted; internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 607, 799 A.2d 1027 (2002). "Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority.....Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734-35, 629 A.2d 333 (1993). According to the plaintiff, Adams had signed at flat fee retainer agreement in connection with a chapter 7 bankruptcy petition. Rule 1.16 (a) of the Rules of Professional Conduct provides in relevant part: "Except as stated in subsection (c), a lawyer shall not represent a client . if . (3) [t]he lawyer is discharged. . . ." The plaintiff also claims that because the defendant did not file an objection to his attempted submission of supplementary material, he was denied his right to be heard. On the contrary, our rules of practice do not state that a party is obligated to file an objection to the submission of supplementary material. The court properly refused to consider the affidavit in making its decision, irrespective of whether the defendant filed an objection.

Opinion SCHALLER, J. The defendant Cromwell Development Associates (Cromwell Associates) and certain of its defendant partners appeal from the deficiency judgment rendered by the trial court in favor of the plaintiff, Anthony R. Ferrigno, trustee, in the amount of $978,993.90. The plaintiff has filed a cross appeal. On appeal, the defendants claim that the court improperly (1) concluded that the evidence did not support their special defense of laches and (2) miscalculated the deficiency judgment. On cross appeal, the plaintiff alleges that the court improperly (1) applied the doctrine of assemblage for purposes of establishing the fair market value of the subject property and (2) totaled the fair market value of the two parcels at issue. We agree with the plaintiff that the court improperly applied the doctrine of assemblage and, accordingly, reverse the judgment of the trial court and remand the case for a new deficiency hearing. The following facts and procedural history are relevant to the defendants' appeal and the plaintiffs cross appeal. On March 25, 1981, the defendants borrowed $150,000 from the plaintiff and secured the loan with a mortgage. The subject property of the note and mortgage consists of two separate parcels of land in Cromwell. One parcel consists of 0.94 acres on West Street, and the other consists of 2.11 acres on Shunpike Road. Although the two parcels are not adjacent to each other, both are adjacent to a thirty-one acre parcel that Cromwell Associates had purchased previously and which was not the subject of the foreclosure or the deficiency hearing. The plaintiff, who is a minority member of Cromwell Associates, extended the loan to the defendants in his capacity as trustee of the Treeland Employees Profit and Sharing Plan and Trust. The defendants defaulted on the note in 1982. Although some payments continued, no payments have been made since December 25, 1987. Following the purchase of the West Street and Shunpike Road parcels and until October, 1995, Cromwell Associates made numerous attempts to market the subject property as a unit with the adjacent thirty-one acre parcel. At about the time of the defendants' default, the plaintiff ceased all communication with Cromwell Associates and would no longer cooperate with the marketing of the property. Subsequently, on September 13, 1988, the plaintiff initiated a foreclosure action on the West Street and Shunpike Road properties. Following a trial, the court rendered a judgment of strict foreclosure on April 26, 1995. Title to the West Street and Shunpike Road parcels vested in the plaintiff on October 27, 1995. On November 14,1995, the plaintiff, pursuant to General Statutes § 49-14, filed a timely motion for deficiency judgment. The court denied the plaintiffs motion on the ground that the postdefault interest rate on the note was usurious under General Statutes § 37-4. After the plaintiff appealed, we reversed the court's judgment and ordered a new deficiency hearing. Our decision was affirmed by our Supreme Court on March 24,1998, and the case was remanded for a hearing. Despite the remand order, a substantial delay in the proceedings ensued and, consequently, the deficiency hearing did not begin until April 8, 2004. During the deficiency hearing, both the plaintiff and the defendants offered an expert real estate appraiser to testify about the fair market value of the West Street and Shunpike Road parcels as of October 27,1995, the date title vested in the plaintiff. The plaintiffs expert, Peter Vimini, appraised each parcel separately using the market data or direct sales comparison approach. Vimini described each property as a vacant, undeveloped parcel of land and also noted that the fair market value of the West Street parcel was reduced because the property lacked frontage on a public highway. On the basis of his assessment, Vimini concluded that the fair market value of the two parcels totaled $90,000. In contrast, the defendants' appraiser, Gary Olcha, used the assemblage doctrine of valuation and concluded that the fair market value of the two parcels totaled $400,000. Under the assemblage doctrine, Olcha considered the adjacent thirty-one acre parcel and its potential for consolidation with the West Street and Shunpike Road parcels. This consolidation, in Olcha's view, would create a thirty-four acre parcel with great development potential and, consequently, a much higher fair market value. In its January 7, 2005 memorandum of decision, the court rendered judgment in favor of the plaintiff. The court agreed with the defendants that assemblage was the proper method of valuation. The court concluded that the "defendants presented a compelling argument to establish that the doctrine of assemblage is a reasonable and realistic way to determine what the true fair market value of the subject property was at the time of vesting." The court, however, rejected the defendants' appraisal amount and instead relied on evidence, presented by the defendants, of an assemblage valuation performed by the Cromwell tax assessor approximately four weeks prior to title vesting in the plaintiff. On the basis of the tax assessment, the court concluded that the fair market value of the West Street and Shunpike Road parcels totaled $332,000. On the same day, the court also issued a deficiency judgment, in which it calculated the deficiency to be $978,993.90. The defendants' appeal and the plaintiffs cross appeal followed. The dispositive issue is the plaintiffs claim that it was improper for the court to treat the two subject parcels as an assemblage with the thirty-one acre parcel because no evidence was presented to suggest that it was reasonably probable that the three parcels would be combined. We agree and therefore reverse the judgment and remand the case for a new deficiency hearing. At the outset, we note that with respect to the issue of valuation, it "is a matter of fact to be determined by the trier's independent judgment. . . . Because this is a challenge to the court's finding of facts, we apply a clearly erroneous standard of review. A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . It is axiomatic that we defer to the trial court's assessment of the credibility of witnesses and the weight to afford their testimony." (Citations omitted; internal quotation marks omitted.) New London v. Picinich, 76 Conn. App. 678, 685, 821 A.2d 782, cert. denied, 266 Conn. 901, 832 A.2d 64 (2003). "The doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable. If applicable, this doctrine allows a property owner to introduce evidence showing that the fair market value of his real estate is enhanced by its probable assemblage with other parcels. . . . "Our Supreme Court . . . accepted the applicability of the assemblage doctrine for valuation purposes in the context of a condemnation case. See Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 767 A.2d 1169 (2001). In Towpath Associates . . . it appears that the concept of assemblage was implicit in the trial court's analysis, rather than explicitly applied. . . . According to the Supreme Court, [t]he fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. . . . There must be a reasonable [probability] that the owner could use this tract together with the other [parcels for such] purposes or that another could acquire all lands or easements necessary for that use. . . . "[I]f a prospective, integrated use is the highest and best use of the land, can be achieved only through combination with other parcels of land, and combination of the parcels is reasonably probable, then evidence concerning assemblage, and, ultimately, a finding that the land is specially adaptable for that highest and best use, may be appropriate." (Citations omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App. 114, 120-21, 807 A.2d 519 (2002), cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003). "If the combination of parcels is reasonably probable and the prospective, integrated use is not speculative or remote, assemblage analysis is a proper valuation approach." (Emphasis added.) Id., 123. To determine whether assemblage was the proper valuation approach in the present case, we must first consider whether there was evidence that the combination of the three parcels was reasonably probable. "[Although the possibility of a change . . . always exists in some degree, it [is often] difficult to prove that such a possibility has become a reasonable probability. . . . Because of uncertainties necessarily attending the determination of the probability of the happening of such an event in the future, claims and evidence regarding the probability must be scrutinized with care and examined with caution." (Citation omitted; internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, supra, 255 Conn. 551; see Route 188, LLC v. Middlebury, 93 Conn. App. 120, 126-27, 887 A.2d 958 (2006); Norwich v. Styx Investors in Norwich, LLC, 92 Conn. App. 801, 807-808, 887 A.2d 910 (2005). The court heard evidence that until October, 1995, Cromwell Associates marketed the subject parcels for sale together with the thirty-one acre parcel. Evidence that the parties were willing to combine the subject parcels with the thirty-one acre parcel at some prior date, however, does not make the combination of those parcels reasonably probable as of October 27, 1995. By that date, the relationship between the plaintiff and Cromwell Associates had degenerated and, consequently, Cromwell Associates' attempts at combining and marketing the properties proved unsuccessful. The hostile state of the relationship as of October 27, 1995, was further evidenced by the plaintiffs foreclosing on the subject property. Although the plaintiff has been the exclusive owner of the subject parcels since October 27,1995, no evidence was presented with respect to his intentions regarding the combination of those parcels with the thirty-one acre parcel. The plaintiff did not testify, and the testimony of the defendants' witnesses only highlighted the plaintiffs unwillingness to cooperate with the marketing of the property. Finally, and perhaps most significantly, no evidence was presented of any agreement that would have allowed for the combination of those parcels after title vested in the plaintiff on October 27, 1995. It is axiomatic that "[wjishful thinking, optimistic conjecture, speculation, rumor and unfounded prognostications do not furnish a proper basis for a finding that a litigant has proved the reasonable probability of a future [event]." (Internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, supra, 255 Conn. 554. There is no evidence, in the record before us, to support the finding that it was reasonably probable that the West Street and Shunpike Road parcels would have been combined with the thirty-one acre parcel. The court's use of the assemblage doctrine, therefore, was clearly erroneous. Accordingly, we reverse the judgment of the trial court and remand the matter for a new deficiency hearing. The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. Cromwell Associates is a Connecticut partnership. Its general partners were also named as defendants. Eight of the defendant partners, Steven Chemock, Jr., John R. Chemock, Philip'Gaynes, Jane E. Miller, Elliot Miller, Janice Miller, Maynard A. Selmon and Dram Realty, have joined the appeal. We refer in this opinion to Cromwell Associates and the partners who have joined the appeal as the defendants. This case has an extensive procedural and factual history, which is set forth in Ferrigno v. Cromwell Development Associates, 44 Conn. App. 439, 689 A.2d 1150 (1997), aff'd, 244 Conn. 189, 708 A.2d 1371 (1998). Payments by the defendant partners ceased some time prior to March 17, 1987. The plaintiff submitted payments to himself for his share until December 25, 1987. At trial, the defendant Steven Chemock, Jr., testified as follows: "[The plaintiff] wouldn't communicate with [Cromwell Associates]. He seemed very distraught during this period of time. He wouldn't answer any of the phone calls. He wouldn't answer any letters. . . . [He] made [marketing the properties] very difficult. Every time [Cromwell Associates] had a broker, a developer or anyone who came to us with an interest to procure the property, we had to tell them in all honesty we had a disgruntled partner and that seemed to scare them away." The court took judicial notice of the reasons for the delay, which included a mistrial, as well as numerous scheduling conflicts and continuances. The Shunpike Road parcel was valued at 580,000, and the West Street parcel was valued at $10,000. Olcha testified that he did not know the parties involved in the case and that he did not value the parcels separately because he believed it would not be appropriate. In relying on an assemblage theory of valuation, the court, explained that "[tjhere was evidence and testimony offered to establish that the two parcels were purchased and marketed for sale as part of an assemblage with the thirty-one acre piece. The three parcels share the same zoning designation and, in fact, one of the two subject parcels (West Street), standing alone, does not meet the existing minimum lot size requirement of two acres for the zone where it is situated. "The thirty-one acre parcel is owned by partners who are also partners of [Cromwell Associates], The two subject parcels were purchased by the partners, who owned the thirty-one acre parcel, because of their location relative to the thirty-one acre parcel. There was testimony by a witness for the plaintiff that the best thing that could be done with the West Street property, which has no access to a public highway, is to assemble it with the thirty-one acre parcel. "The Cromwell tax assessor has valued the three parcels based upon the assemblage of the three parcels together. . . . There was no evidence that the said assessment was ever appealed by the plaintiff or the defendants." On cross appeal, the plaintiff claims that the $332,000 figure was a miscalculation. Although our decision does not require us to decide that claim, we note that it does appear from the memorandum of decision that the court miscalculated when totaling the fair market value of the West Street and Shunpike Road properties. The court adopted the Cromwell assessor office's appraisals of $112,000 for the West Street parcel and $210,000 for the Shunpike Road parcel, and then incorrectly added those figures to total $332,000. The correct total is $322,000. On appeal, the defendants claim that the court improperly concluded that the evidence did not support the special defense of laches. An adequate record for review of that claim does not exist. We first note the standard of review. "The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant. . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. . A conclusion that a plaintiff has been guilty of laches is one of fact 1'or the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. . . . We must defer to the court's findings of fact unless they are clearly erroneous." (Emphasis added; internal quotation marks omitted.) Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005). In the present case, although the court, took judicial notice of the reasons for the delay, the court made no findings of fact with respect to the defendants' claim of laches. Rather, the court stated: "Delays caused by appeal are a practical consequence in lawsuits. This court does not intend to apportion blame or responsibility to either the plaintiff or the defendants for the time it has taken to reach this point in a case originally returnable in 1988. The defendants' request in their posthearing reply brief that the court recognize their defense of laches is denied." Because the court summarily denied the claim of laches without finding any subordinate facts, we conclude that an adequate record for review of that claim does not exist. Furthermore, the court in Towpath Associates suggested that in order for the combination of parcels to be reasonably probable, the combination must take place in the reasonably near future: "From the record before us in these cases, we cannot conclude that the trial court properly determined that it was reasonably probable that someone other than the department would have assembled these properties in the near future to construct a bridge thereon. The trial court in this case failed to address the reasonable probability that, but for the taking of the defendants' properties, a prudent investor would have obtained, in the reasonably near future, both parcels in order to pursue a bridge project." (Emphasis added.) Commissioner of Transportation v. Towpath Associates, supra, 255 Conn. 551-52. Although assemblage analysis is most commonly applied in the area of eminent domain, we note that it also has been employed to value property in other contexts. See Franc v. Bethel Holding Co., supra, 73 Conn. App. 126. "Although common ownership of the parcels sought to be integrated would be a factor weighing in favor of a finding that assemblage analysis is appropriate, its presence or absence is not necessarily dispositive of the inquiry." Franc v. Bethel Holding Co., supra, 73 Conn. App. 123. In light of the foregoing, we need not reach the defendants' claim that the court miscalculated the deficiency judgment.

Opinion BISHOP, J. The defendants appeal from the judgment of the trial court ordering the opening and setting aside of the decrees of the Probate Court for the district of Eastford, which had admitted and probated a will of Mamie Nahibowitz that devised her property to the defendants. On appeal, the defendants claim that the court (1) abused its discretion in admitting into evidence a certain affidavit under the residual exception to the hearsay rule, (2) improperly held that the decedent's 1993 will was lost and not revoked, and (3) improperly held that the decrees issued by the Probate Court were the result of fraud, negligence or mistake. We affirm the judgment of the trial court. The following facts and procedural history, as set forth by the court in its memorandum of decision, are relevant to the defendants' appeal. "In June, 2002, the state of Connecticut, acting through its commissioner of the department of agriculture [(commissioner)], filed this action against Anton Faford, Joan Glass, Richard Glass, Geoffrey Glass, Kern Nelson, Joan Piller and Timothy Faford. The [commissioner] claimed, in a three count complaint, that Anton Faford fraudulently, negligently or by mistake failed to offer for probate a June 3, 1993 will of . . . Nahibowitz and instead offered a 1973 will of the decedent. The remaining defendants are the beneficiaries of the estate of . . . Nahibowitz under the 1973 will. In the 1993 will, the decedent left her farmland to the defendants, but restricted the development of the property to solely agricultural uses. In contrast, the 1973 will of . . . Nahibowitz left the farmland to the defendants free of any restrictions on its development. . . . "Nahibowitz died on February 14, 1998. On March 21, 1998, Anton Faford applied for the probate of the last will and testament of . . . Nahibowitz. He filed with the Probate Court for the town of Eastford a will executed by . . . Nahibowitz on October 27, 1973. The 1973 will left her estate in quarter shares to Anton Faford (nephew), Joan Glass (niece), the then living children of Joan Glass and the then living children of Anton Faford. The primary asset of the estate was 127.5 acres of farmland. There was no restriction placed on the development of that land. The will was admitted into probate. On July 23,1999 the Probate Court ordered a distribution of the real property in the estate in accordance with the directions of the 1973 will. On April 9, 1998, the Probate Court issued a decree granting the probate of the 1973 will. On July 23, 1999, the Probate Court issued a certificate of devise conveying the farmland, without restrictions, to the defendants. "The [commissioner] claimed that [she] first became aware of the probating of the 1973 will in the spring of 2002. [She] filed this litigation in September, 2002. In essence, the [commissioner] alleged that Anton Faford knew of a later will that restricted the development of . . . Nahibowitz' farmland and chose not to offer the 1993 will because it decreased the value of the inheritance, that he was negligent in filing for probate the 1973 will when he reasonably knew or should have known of the 1993 will or that he mistakenly offered the 1973 will for probate . . . [and sought] a judgment setting aside the decrees issued by the Probate Court for the district of Eastford relating to the 1973 will and further orders as required by equity." Additional facts will be set forth as necessary. I The defendants first claim that the court abused its discretion in admitting into evidence a certain affidavit under the residual exception to the hearsay rule. Specifically, they argue that the court abused its discretion when it admitted into evidence the affidavit of Henrietta Klee (Etta Klee), pursuant to § 8-9 of the Connecticut Code of Evidence. The defendants claim that the affidavit should not have been received into evidence over their objection because (1) there was no reasonable necessity for the affidavit, and (2) the affidavit was untrustworthy and unreliable. We are not persuaded. The following additional facts are necessary for our disposition of the defendants' claim. At the time of trial, the whereabouts of the original 1993 will of Nahibowitz was unknown, although a copy of an unsigned version of the 1993 will was produced by Nahibowitz' attorney, Thomas A. Bomer. To assist the court in determining whether the 1993 will was revoked or lost, the commissioner sought to introduce the affidavit of Etta Klee, Nahibowitz' closest friend, under the residual exception to the hearsay rule. Etta Klee was unavailable to testify at trial because she suffered a stroke after the affidavit was taken, which left her paralyzed on one side of her body. Absent the affidavit of Etta Klee, there was no evidence at trial that could account for the 1993 will. The defendants objected to the introduction of the affidavit on the grounds that the statement contained in the affidavit was hearsay that was not within any exception to the hearsay rule because "there was no indication that Mrs. Klee prepared the affidavit" and that the affiant should have been deposed. The defendants also argued that the statement did not fall within the residual exception because nothing in the record established that the statements contained in the affidavit were reliable. The commissioner disagreed and sought to establish the reliability of the affidavit through the testimony of Felix Klee, the son of Etta Klee. Felix Klee testified that the first selectman from the town of Eastford had contacted Etta Klee to discuss the 1993 will sometime in March, 2002. He testified that he had attended the meeting with his father, Emil Klee, because he "wanted to make sure that everyone was polite and objective." He stated that the town officials "asked straightforward questions . . . asked for descriptions of activities, and then they questioned parts of the descriptions that , . . weren't clear." He further testified that at the time of the meeting, his mother "had a good memory [and was] . . . very artic ulate . . . [and] extremely honest." Although the affidavit was not executed on the day of the meeting, Felix Klee testified that after the town officials had prepared the affidavit, they returned on another day to have Etta Klee review and sign it. Felix Klee stated that between March, 2002, when the affidavit was taken, and November, 2002, when his mother had a stroke, she was in good health and that her stroke was unexpected. Felix Klee stated that his mother, who was eighty-four years old when the affidavit was signed, was unavailable to testify because the stroke that she had suffered caused her to be paralyzed on her right side. He further testified that "from day to day [his mother] is quite aware of her surroundings or not very aware of her surroundings . . . probably 50 percent aware." When asked by the commissioner's counsel whether his mother would be able to respond to questions in court, he stated that he did not "think she could do it well enough that [one] could believe what she was saying." The court overruled the defendants' objection to the affidavit and allowed its admission on the grounds that there was a reasonable necessity for the affidavit because the affiant was unavailable due to a medical condition, the affidavit contained information related to the whereabouts of the 1993 will, and the affidavit was trustworthy because the statement was taken under oath and, during the interview, the affiant's son was present and testified that there was no undue influence or coercion. In assessing that claim, we first note our familiar standard of review for challenges to evidentiary rulings. "It is well settled that the trial court's evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion." (Internal quotation marks omitted.) Trinity United Methodist Church of Springfield, Massachusetts v. Levesque, 88 Conn. App. 661, 667-68, 870 A.2d 1116, cert. denied, 274 Conn. 907, 908, 876 A.2d 1200 (2005). "A statement that is not admissible under any of the [hearsay] exceptions [enumerated in the Connecticut Code of Evidence] is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule." (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 633 n.22, 835 A.2d 895 (2003), quoting Conn. Code Evid. § 8-9. "Reasonable necessity may be established by showing that unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources." (Internal quotation marks omitted.) State v. Merriam, supra, 633 n.21. As to the evaluation of the trustworthiness of an affidavit, our Supreme Court has held that "[t]he second prong, reliability, is met in a variety of situations, one of which is when the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed. . . . At minimum, the statement must independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating [its] truth . . . ." (Citation omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 810, 709 A.2d 522 (1998). In light of Etta Klee's physical disability and her uncertain mental state at the time of the trial, we con- elude that the court properly held that she was unavailable as a witness. There also was a reasonable necessity for the affidavit because the affidavit contained information as to the whereabouts of the missing 1993 will, for which no other evidence introduced at trial could account. We further conclude that the document had an adequate indicia of reliability because there was no evidence of undue influence or coercion, no evidence of a motive to fabricate the affidavit, and Etta Klee had sworn to its accuracy. The defendants next argue that the commissioner should not have been allowed to introduce the affidavit because she failed to exercise due diligence by failing to take Etta Klee's deposition when the commissioner knew or should have known that in light of Etta Klee's age, she would be unavailable as a witness at the time of trial. The commissioner contends, on the other hand, that because Etta Klee was in good health at the time the affidavit was taken, it was reasonable to assume that she would be available as a witness at trial or, if necessary, that her deposition could be taken at a later date. Our Supreme Court previously has held that "[t]o take advantage of the hearsay exceptions requiring unavailability, the proponent must show a good faith, genuine effort to procure the declarant's attendance by process or other reasonable means. . . . This showing necessarily requires substantial diligence." (Citations omitted; internal quotation marks omitted.) State v. Lopez, 239 Conn. 56, 75, 681 A.2d 950 (1996). Nevertheless, "[d]ue diligence does not require omniscience. Due diligence means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 77, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003). "The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. A trial court's determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion." State v. Lapointe, 237 Conn. 694, 738, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). The court did not abuse its discretion in finding Etta Klee to be unavailable due to physical illness. The unre-futed evidence at trial was that although she was eighty-four years old at the time she signed the affidavit, Etta Klee was healthy, and her subsequent stroke was unexpected. Although it was possible to take Etta Klee's deposition sometime after she signed the affidavit in March, 2002, and before her stroke in November, 2002, the commissioner reasonably expected that she would be able to depose Etta Klee at a later time or that Etta Klee would be available to testify at the time of trial. Nothing in the record supports the inference that the commissioner's failure to procure Etta Klee's deposition before trial constituted a lack of substantial diligence or good faith. II Next, the defendants claim that the court improperly held that the decedent's 1993 will was lost and not revoked. We disagree. The following additional facts are relevant to our disposition of the defendants' claim. On the same day in March, 1993, that Nahibowitz executed the 1993 will, Etta Klee took her to Putnam Savings Bank to acquire a safe deposit box to store the 1993 will. In May, 1993, Anton Faford contacted Bomer's office to set up an appointment to fix a typographical error in Nahibowitz' 1993 will. On June 3, 1993, Nahibowitz returned to Bomer's office with Anton Faford to fix the typographical error in her 1993 will. Nahibowitz took the signed version of the amended 1993 will and left an unsigned copy in Bomer's office. Etta Klee stated in her affidavit that sometime later she took Nahibowitz back to Putnam Savings Bank, where they met with Nahibowitz' sister, Nadgy Faford, and Nadgy Faford's daughter-in-law. Etta Klee recalled that " [t]he bank staff assisted in retrieving [Nahibowitz'] will, which was examined by Nadgy [Faford]. The safe deposit box was returned to the vault without the will being returned to it [and Nadgy Faford was] holding onto the will. . . . Nadgy [Faford] said 'We'll put it in our box.' " By "our box," Nadgy Faford was referring to a safe deposit box that she and Nahibowitz shared. On June 26,1993, Nahibowitz' health failed, and she was transported to the Evangelical Baptist Home, where she remained until her death in February, 1998. Nadgy Faford predeceased Nahibowitz, and Anton Faford was the executor of the estate of his mother, Nadgy Faford. Anton Faford also served as the conservator for Nadgy Faford and Nahibowitz, and as the administrator of Nahibowitz' estate. In those capacities, Anton Faford was in charge of the financial affairs of Nahibowitz and Nadgy Faford, and he had access to their safe deposit boxes and wills. Anton Faford testified, however, that when he emptied his mother's safe deposit box after her death, he did not find the 1993 will. He denied ever knowing about the existence of the 1993 will or its terms. He stated that he knew only of Nahibowitz' desire to sell the development rights of the land for $1 million, but nothing of her desire to donate the land. The court did not credit Anton Faford's testimony. Connecticut follows "the common-law doctrine that if a will cannot be found after the death of the maker, a prima facie rebuttable presumption arises that the maker destroyed his will with intent to revoke. . . . The burden of proving revocation generally rests upon the contestant . except in cases of lost wills where the presumption of revocation is involved. . . . The burden is always on the proponent to prove a will for probate, and once the proponent offers evidence that the original cannot be located, the presumption of revocation arises. Once this presumption is established, the burden is then upon the proponent to rebut the presumption [of revocation] by clear and satisfactory proof." (Citations omitted; internal quotation marks omitted.) Patrick v. Bedrick, 169 Conn. 125, 126-27, 362 A.2d 987 (1975); see also General Statutes § 45a-257. There is an exception to the general rule that a missing will is deemed to have been revoked. If the lost will was last known to be in the charge of another person, then it is presumed that the will was lost and not revoked because if another person possessed the testator's will and the will was not in the testator's presence, then the testator could not have formed the requisite intent to revoke the will. See In the Matter of the Estate of Mary Ruffino, Probate Court, district of West Hartford-Bloomfield at West Hartford (August 9, 1983) (9 Conn. L. Trib., No. 48, p. 19), citing G. Wilhelm, Connecticut Estates Practice § 46 (1974). As this issue presents a mixed question of law and fact, we apply plenary review. See Winchesters. McCue, 91 Conn. App. 721, 726, 882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005). We must therefore decide whether the court's conclusions are legally and logically correct and find support in the facts that appear in the record. See id. In this instance, the court found that the will was last in the charge of another person because Etta Klee's affidavit put the 1993 will last in the possession of Nadgy Faford. Thus, the court held that the presumption that the 1993 will was revoked was rebutted. No evidence introduced at trial either contradicted Etta Klee's affidavit that Nadgy Faford was the last person in possession of the 1993 will or established that the 1993 will later was revoked by Nahibowitz. Accordingly, the court properly concluded that the 1993 will was lost and not revoked. Ill Finally, the defendants claim that the court improperly concluded that the decrees issued by the Probate Court were the result of fraud, negligence or mistake. Because we agree with the court's finding regarding fraud, we need not assess whether the decrees also were issued as a result of negligence or mistake. As a general rule, the Probate Court has exclusive subject matter jurisdiction over matters involving validity of wills and settlement of estates. Dunham v. Dunham, 204 Conn. 303, 328, 528 A.2d 1123 (1987), overruled in part on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996); see also General Statutes § 45a-24. Only in exceptional circumstances, such as fraud, mistake or a like equitable ground, may a court consider an equitable attack on a probate order or decree. Dunham v. Dunham, supra, 328; see also Miller v. McNamara, 135 Conn. 489, 495, 66 A.2d 359 (1949). "Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact. . . . The trier of facts is the judge of the credibility of the testimony and of the weight to be accorded it. . . . When the trial court finds that a plaintiff has proven all of the essential elements of fraud, its decision will not be reversed or modified unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. " (Citation omitted; internal quotation marks omitted.) Harold Cohn & Co. v. Harco International, LLC, 72 Conn. App. 43, 50, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). "Under the common law . it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." (Internal quotation marks omitted.) Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 296, 823 A.2d 1184 (2003). "All of these ingredients must be found to exist . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which . we have described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Harold Cohn & Co. v. Harco International, LLC, supra, 72 Conn. App. 51. A review of the record reveals that the court found by clear and satisfactory evidence that the Probate Court issued the decrees granting the probate of the 1973 will as a result of the fraud perpetrated by Anton Faford. The court found that Anton Faford knew of the existence and the terms of the 1993 will because he scheduled a meeting with Bomer to correct a typographical error in the will and later took Nahibowitz to Bomer's office to make the correction. Additionally, the court found that Anton Faford had an interest in the estate of Nahibowitz, as a beneficiary of the estate. Anton Faford also had access to the safe deposit box that Nahibowitz and Nadgy Faford shared, which allegedly contained the 1993 will, because he was Nadgy Faford's and Nahibowitz' conservator, the administrator of Nahi-bowitz' estate and the executor of Nadgy Faford's estate. Although Anton Faford denied knowledge of the 1993 will, as noted previously, the court specifically found that he was not a credible witness and accordingly did not credit his testimony. In sum, the court properly found that Anton Faford's submission of the 1973 will to the Probate Court constituted a false representation that the 1973 will was Nahi-bowitz' last will and testament, that Anton Faford knew such a representation was untrue because he knew of the existence of the 1993 will that revoked the 1973 will, that Anton Faford submitted the 1973 will for probate with the intention of inducing the Probate Court to issue a decree granting the probate of the 1973 will and, finally, that the Probate Court acted on the false representation. On the basis of the evidence adduced at trial, the judgment holding that the decrees issued by the Probate Court were the result of fraud is not clearly erroneous. The judgment is affirmed. In this opinion the other judges concurred. This cause of action seeking declaratory relief was brought against Anton Faford, Joan Glass, Richard Glass, Geoffrey Glass, Kerri Nelson, Joan Piller and Timothy Faford by the plaintiff, Shirley Ferris, the commissioner of agriculture. The town of Eastford sought and was granted intervenor status and, on appeal, has adopted the plaintiffs brief. The Probate Court issued three decrees. The first decree, which issued on April 9, 1998, granted the probate of the 1973 will. The second and third decrees, which issued on July 23, 1999, ordered the distribution of the real property in the estate in accordance with the 1973 will and conveyed the farmland at issue without restrictions to the defendants. The defendants also assert that this evidentiary ruling impermissibly infringed on their rights under the confrontation clause of the sixth amendment. Because we hold that the evidence was admitted properly under the residual exception to the hearsay rule, we need not address that issue, but note that in this civil case, recourse to the residual exception does not implicate the confrontation clause contained in the United States constitution or the Connecticut constitution. See Doe v. Thames Valley Council for Community Action, Inc., 69 Conn. App. 850, 854, 797 A.2d 1146, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002). General Statutes § 45a-257 provides in relevant part that "a will or codicil shall not be revoked in any other manner except by burning, cancelling, tearing or obliterating it by the testator or by some person in the testator's presence by the testator's direction, or by a later will or codicil." General Statutes § 45a-24 provides in relevant part that "[a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud."

Opinion HENNESSY, J. The defendant, Michael J. Marsala, appeals from the judgment of conviction, rendered after a jury trial, of four counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). On appeal, the defendant claims that (1) his conviction on four counts of harassment in the second degree violated his constitutional protection against double jeopardy because the four counts arose from the same act and (2) the trial court, in violation of his constitutional right to confront his accuser, improperly precluded him from eliciting the specific names of the twelve previous felonies his accuser was convicted of and precluded him from introducing documents verifying that she was convicted of them. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. The defendant and the victim, Kerrie Patavino, had known each other for more than eighteen years. On May 5,2003, the defendant called Patavino five times and left five messages on her telephone answering machine all within a fifteen minute period. All five messages were either profane in nature, referenced their past sexual relationship, referred to Patavino as a sexual molester or compared Patavino to a deceased woman whom the defendant claimed to have murdered. Later that day, Patavino listened to all five of the messages consecutively. Patavino saved the audiotape containing the messages. Seven days after listening to the messages, Patavino brought the tape to the West Haven police department and filed a complaint. After listening to the tape and interviewing Patavino, Officer Kaitlyn Flavin applied for an arrest warrant. The defendant was arrested and, on May 22, 2003, was charged with one count of harassment in the second degree in violation of § 53a-183. On November 14, 2003, the state amended the original information and added three additional counts of harassment in the second degree. The defendant pleaded not guilty and elected to have a trial by jury. By way of a motion to dismiss and later a motion for a judgment of acquittal, the defendant argued that the three additional counts of harassment constituted an impermissible multiplicity of counts and violated his constitutional protection against double jeopardy because all four counts arose from the same act. The court denied both motions. Prior to the start of trial, the state filed a motion in limine relating to Patavino's prior criminal history. The state conceded that the defendant was permitted to offer evidence that Patavino previously had been convicted of twelve felonies, but argued that the nature and circumstances of the convictions should be excluded. The court granted the motion and ruled that the defendant would be precluded from introducing the specific nature and circumstances of the felonies. Throughout the cross-examination of Patavino, the defendant attempted to introduce a certified criminal record as a full exhibit. The state objected. The defendant argued outside the presence of the jury that the record was admissible to impeach Patavino because she did not acknowledge her twelve prior felony convictions. The objection was sustained. The defendant was ultimately convicted and sentenced on all four counts of harassment in the second degree. This appeal followed. I We first address the defendant's double jeopardy claim. The determination of whether the defendant's constitutional right to be free of double jeopardy was violated is a question of law. As such, our review is plenary. See State v. Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002). The factual findings of the court that determines that issue, however, will stand unless they are clearly erroneous. State v. Tuchman, 242 Conn. 345, 351, 699 A.2d 952 (1997), cert. dismissed, 522 U.S. 1101, 118 S. Ct. 907, 139 L. Ed. 2d 922 (1998). "The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial]." (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 360-61, 796 A.2d 1118 (2002). The defendant's claim implicates the last of those three functions. Specifically, he argues that his conviction on four counts of harassment in the second degree violated his constitutional protection against double jeopardy because the four counts arose from the same act. "The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute." (Emphasis in original; internal quotation marks omitted.) State v. Freeney, 228 Conn. 582, 587, 637 A.2d 1088 (1994). "The issue, though essentially constitutional, becomes one of statutory construction." State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985). "In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature." United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). "In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997), overruled in part on other grounds, State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004). We therefore turn to the language of the statute. Section 53a-183 (a) provides in relevant part: "A person is guilty of harassment in the second degree when . . . (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm." The defendant argues that the four telephone calls constitute one act because the victim listened to them consecutively and, therefore, she could have been harassed, annoyed or alarmed only once. It is clear from the language of the statute that this argument is without merit. Specifically, the phrase "a telephone call," coupled with the phrase, "likely to cause annoyance," shows that the legislature intended to punish each telephone call made with the requisite intent to harass, annoy or alarm regardless of the number of times, if any, the victim was actually harassed, annoyed or alarmed. That is because the phrase "likely to cause annoyance or alarm" shows that the effect on the listener is not relevant. Instead, the statute is concerned with the conduct of the individual making the telephone call. Additionally, the phrase "a telephone call" shows the legislature's intent to punish for a single telephone call. Therefore, an individual violates § 53a-183 (a) (3) each time the individual makes a telephone call with the intent to harass, alarm and annoy the victim in a manner likely to cause annoyance or alarm regardless of the number of times the victim actually became alarmed or annoyed, if any, and regardless of how close in time the calls were made or whether the victim was actually harassed, annoyed or alarmed. Here, the jury found that the defendant made four telephone calls with the intent to harass, alarm and annoy Patavino in a manner likely to cause annoyance or alarm. The defendant's conviction of four counts of harassment in the second degree in violation § 53a-183 (a) (3) and their accompanying sentences is, therefore, consistent with the legislative intent to punish for each single telephone call made with the intent to harass, alarm or annoy in a manner likely to alarm or annoy. Accordingly, the defendant has not succeeded in establishing a double jeopardy violation. II We next turn to the defendant's confrontation clause claim. The defendant concedes that his original objection was on nonconstitutional grounds. On appeal, the defendant claims, for the first time, that precluding him from eliciting the specific names of the twelve previous felonies Patavino was convicted of and precluding him from introducing documents verifying that she was convicted of them violated his constitutional right to confront his accuser. "When a party raises a claim for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine as provided by Practice Book § 60-5, or the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)." State v. Rodriguez, 68 Conn. App. 303, 308, 791 A.2d 621, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). In the present case, the defendant has not requested plain error or Golding review of his unpreserved confrontation cause claim. "This court often has noted that it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or Golding review], we will not afford such review." (Citation omitted; internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 463, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005). We therefore decline to review the defendant's unpreserved confrontation clause claim. We will, however, review the defendant's original evidentiary claim, which was preserved at trial and intertwined in his confrontation clause analysis. "Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . And [it] requires a knowledge and understanding of the material circumstances surrounding the matter . In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling." (Citation omitted; internal quotation marks omitted.) State v. Ciccio, 77 Conn. App. 368, 382, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003). There is nothing in the record that indicates that the court abused its discretion in excluding Patavino's certified criminal record and the specific names of the felonies of which she had been convicted. The defen dant was permitted to question Patavino about all twelve of her felony convictions. Although she did not immediately acknowledge all twelve, she eventually testified that she was convicted of twelve crimes and that she believed they were all felonies. As a result, the jury was aware, at the very least, that she was convicted of multiple felonies, if not all twelve. In addition, eleven out of the twelve convictions did not reflect directly on Patavino's veracity. We therefore conclude that the court properly exercised its discretion in precluding Patavino's certified criminal record and the specific names of the twelve felonies of which she had been convicted. The judgment is affirmed. In this opinion the other judges concurred. During trial, defense counsel elicited the following relevant testimony from Patavino on cross-examination: "[Defense Counsel]: All right. Now, are you then the same Kerrie Patavino who on the eleventh day of October, 1996, in the judicial district of Fairfield at Bridgeport was convicted of a felony? "[The Witness]: Yes, sir. That would be me. "[Defense Counsel]: And on the same date, October 11,1996, in the same court, are you the same Kerrie Patavino who was convicted of a second felony? "[The Witness]: I went to trial once and I— "[Defense Counsel]: I asked— "The Court: Ma'am, just listen to the question. Answer the question if you can. "[The Witness]: And my answer is maybe. . . . "[Defense Counsel]: Do you deny that on the eleventh day of October, 1996, in the judicial district of Fairfield at Bridgeport that you are the Kerrie Patavino who was convicted of a separate and distinct felony than the one you just testified first off? . . . "[Defense Counsel]: Do you deny that, that you were convicted in that same court— "[The Witness]: No, I don't deny it. My answer was maybe, so I'm not denying it. "[Defense Counsel]: Ms. Patavino, you've testified earlier regarding one conviction of a felony on the day in question. Do you recall that before we had a little recess there? "[The Witness]: Yes. . . . "[Defense Counsel]: My next question is on October 11, 1996, in the same court, the judicial district of Fairfield at Bridgeport, are you the same Kerrie Patavino who was convicted of a third felony offense? "[The Witness]: I'm not denying. Maybe. "[Defense Counsel]: Maybe? And on the same date, October 11,1996, and in the same court, are you the same Kerrie Patavino who was convicted of a fourth felony offense? "[The Witness]: Not denying. Maybe. "[Defense Counsel]: And on the same date, October 11, 1996, and in the same court, are you the same Kerrie Patavino who was convicted of a fifth felony? "[The Witness]: Not denying. Maybe. "[Defense Counsel]: And on the same date, October 11, 1996, and in the same court, are you the same Kerrie Patavino who was convicted of a sixth felony? "[The Witness]: Not denying. Maybe. . . . "[Defense Counsel]: And on the same date, October 11, 1996, and in the same court, are you the same Kerrie Patavino who convicted of seventh felony? "[The Witness]: Not denying. Maybe. "[Defense Counsel]: And on the same date, October 11, 1996, and in the same court, are you the same Kerrie Patavino who was convicted of an eighth felony? "[The Witness]: It's quite possible, and I'm not denying it. . . . "[Defense Counsel]: And on the same date, October 11, 1996, and in the same court, are you the same Kerrie Patavino who was convicted of a ninth felony? "[The Witness]: I was convicted on that date of twelve counts for one event that had occurred. "[Defense Counsel]: And were each of those twelve counts felonies, Ms. Patavino? "[The Witness]: I don't think they all were. "[Defense Counsel]: So, in summation, Ms. Patavino, on October 11,1996, in the judicial district of Fairfield at Bridgeport, are you the same Kerrie Patavino who was convicted of twelve felonies? "[The Witness]: I think so. I don't know that they were all felonies, but I think so." Moreover, the defendant's claim is evidentiary and not constitutional. See State v. Perez, 87 Conn. App. 113, 121, 864 A.2d 52 (2005) ("admission of prior felony convictions for credibility purposes is an evidentiary matter, not a constitutional one"). "Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Therefore, even if we were to review the defendant's claim under Golding, it would fail because it is not of constitutional magnitude. See State v. Golding, supra, 213 Conn. 239.

Opinion McLACHLAN, J. The defendant L.G. DeFelice, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs, The resa Gurguis, Gamal Gurguis and Meena Gurguis. The defendant claims that the court improperly concluded that (1) the defendant had a duty to warn the plaintiff of a declivity existing between the pavement and grassy shoulder of a portion of highway along Interstate 395, (2) the defendant had a duty to warn the plaintiff of the declivity even though the state had no such duty to warn the plaintiff and (3) there was sufficient evidence to support the judgment in favor of the plaintiff. We agree with the defendant's third claim and, accordingly, reverse the judgment of the trial court. The record reveals the following facts. On November 19, 2000, sometime between 9:30 a.m. and 9:45 a.m., the plaintiff and her son, Meena Gurguis, were driving southbound along Interstate 395, having entered onto the highway via entrance ramp eighty-five. It was a Sunday, and the weather was clear and dry. According to the plaintiffs testimony, while she was traveling in the left lane at a point approximately three-tenths of one mile past the entrance ramp, she noticed a large white truck approaching from behind in the right lane and was concerned that it was going to collide with her vehicle. The plaintiff indicated that to avoid the truck, she moved her vehicle farther to the left. She further testified that because of the speed of the truck and its closeness to her vehicle, a gust of wind created by the passing truck blew her vehicle onto the shoulder of the highway. The plaintiff lost control of the vehicle and collided with the median guardrail. She and her son suffered injuries in the collision. The evidence indicated that the defendant, pursuant to a contract with the state, had laid new asphalt over the old layer of pavement on that section of Interstate 395 the day before the accident. After the new pavement was laid, the shoulder was not level with the paved portion of the highway. The newly laid pavement was black, and the grass in the center median was yellow so that there was a clear demarcation as to the pavement and the shoulder of the highway. At the end of the workday, the defendant spray painted a broken white line on the newly installed pavement, but did not place yellow fog lines along the left side of the left lane of that pavement. There were no signs, cones, barrels or any other type of warning devices placed along that stretch of highway to indicate the existence of the claimed declivity between the pavement and the shoulder of the highway. The court filed its memorandum of decision on April 13, 2004. The following findings and conclusions of the court are important to the resolution of the issues on appeal. "At the end of the day, [the defendant] spray painted a broken white line on the pavement, but did not place any lines or signals on the pavement to warn drivers about the declivity. . . . The evidence shows that an orange sign, legally closing the road, was posted on [entrance ramp eighty-five], . . . [The plaintiff] moved her vehicle to the left of her lane, and a gust of wind created by the passing truck blew her vehicle over the left boundary of the left lane onto the shoulder of the highway. The tires of her vehicle fell into the declivity between the grass shoulder and the pavement. She subsequently lost control of her vehicle and collided with the median guardrail. . . . [T]he [plaintiff has] not met [her] burden of proving all the elements of [her] claim [against the state] under General Statutes § 13a-144. . . . General Statutes § 13a-145 applies to this case and bars the state's liability under § 13a-144. . . . This court, however, cannot impute the immunity established by § 13a-145 to [the defendant] because this would defy the legislature's express direction. . . . Based on [the defendant's] experience and the guidelines [the defendant] had for the maintenance and protection of traffic, [the defendant] should have anticipated that an accident, such as the one that occurred in this case, could easily occur if motorists were not sufficiently warned about the declivity. Therefore, by not placing proper pavement markings warning motorists about the declivity, [the defendant] breached its duty to warn motorists about the defect. . . . The [plaintiff] claim[s] that [the defendant's] failure to warn motorists of the declivity by placing a warning marking, such as a line, on the pavement, caused [the plaintiff] to misperceive the actual road condition. Moreover, if she were aware of the declivity or had an indication of where the left border of the pavement actually ended, she would not have moved her vehicle slightly to the left, a normally safe and reasonable driving maneuver. By failing to warn [the plaintiff] about the declivity, [the defendant] breached its duty under the standards of ordinary prudence, which were reinforced by the . . . contract that provided guidelines for the maintenance and protection of traffic." The court awarded the plaintiff damages in the amount of $237,617.11. It additionally awarded Meena Gurguis damages of $2275.34 and Gamal Gurguis damages of $5000. This appeal followed. The defendant claims that the court improperly rendered judgment in favor of the plaintiff because the evidence she submitted was insufficient to prove that the defendant's failure to warn of the declivity was the proximate cause of her injuries. We agree. Because the resolution of that issue is dispositive of the appeal, we do not reach the defendant's remaining claims as to duty. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . If a plaintiff cannot prove all of those elements, the cause of action fails. . . . [I]n a negligence action . [a] causal relation between the defendant's wrongful conduct and the plaintiffs injuries is a fundamental element without which a plaintiff has no case . . . ." (Citations omitted; internal quotation marks omitted.) Right v. Breen, 88 Conn. App. 583, 586-87, 870 A.2d 1131, cert. granted on other grounds, 274 Conn. 905, 876 A.2d 14 (2005). "To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct. . . . The second component of legal cause is proximate cause . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). "Proximate cause is ordinarily a question of fact." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982). "To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . ." (Citations omitted; internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003). The court concluded that the defendant was negligent in failing to warn of the declivity that existed between the paved portion of the highway and the shoulder. The court did not find that the defendant was negligent in creating the declivity, only that "by not placing proper pavement markings warning motorists about the declivity, [the defendant] breached its duty to warn motorists about the defect." The evidence presented is insufficient to support the judgment in favor of the plaintiff in two respects. First, the record is deficient in establishing the location and length of the declivity. Exhibit one, a photograph of the declivity taken by the state police trooper at the accident scene, indicates a five and one-half inch declivity at one point, as measured by a ruler shown on the photograph. The trooper could not say, however, exactly where the photograph had been taken. He stated that it was taken in the "general area" where the plaintiff first left the highway. On cross-examination, the trooper indicated that he had noticed a disturbance in the grass on the median strip and that approximately 425 feet from that point were indications of a collision with the guardrail. He confirmed that exhibit one did not show any indication of a disturbance in the grass next to the pavement and that he did not know how far' from the area of disturbance his measurement with the ruler was taken. Having failed to establish the location and length of the five and one-half inch declivity, the court's factual finding that "[t]he tires of [the plaintiffs] vehicle fell into the declivity between the grass shoulder and the pavement" has no evidentiary support. To conclude that the plaintiff lost control of her vehicle because of the declivity would be pure conjecture and speculation. Second, and much more problematic, is the total lack of evidence that the failure to warn of the declivity caused the plaintiffs injuries. The court made the following factual finding: "The plaintiff claims that [the defendant's] failure to warn motorists of the declivity by placing a warning marking, such as a line, on the pavement, caused [the plaintiff] to misperceive the actual road condition. Moreover, if she were aware of the declivity or had an indication of where the left border of the pavement actually ended, she would not have moved her vehicle slightly to the left, a normally safe and reasonable driving maneuver." After a thorough review of the transcript testimony, we find that the record is absolutely devoid of any such testimony by the plaintiff. The plaintiff may have claimed causation in her pleadings, but no evidence was presented to support that claim. The plaintiff testified that the speeding truck blew her vehicle off the paved portion of the highway. She did not state that she misperceived road conditions or that a warning of the declivity would have changed her actions in any respect. "Drawing logical deductions and making reasonable inferences from facts in evidence, whether that evidence be oral or circumstantial, is a recognized and proper procedure in determining the rights and obligations of litigants, but to be logical and reasonable they must rest upon some basis of definite facts, and any conclusion reached without such evidential basis is a mere surmise or guess." (Internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., supra, 250 Conn. 34. It was clearly erroneous for the court to conclude, without any facts in evidence in support of the conclusion, that the plaintiff would have reacted differently if a warning had been posted by the defendant. Such an inference is a mere surmise or guess. See id. Therefore, we conclude that there is no causal connection between the alleged negligent conduct of the defendant, i.e., the failure to warn of the declivity, and the plaintiffs injuries. The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant. In this opinion the other judges concurred. This action was brought against Emil Frankel, commissioner of transportation, pursuant to General Statutes § 13a-144, and against L.G. DeFelice, Inc., for injuries sustained by the plaintiffs, Theresa Gurguis, Gamal Gurguis and Meena Gurguis, as the result of a claimed highway defect. The trial court concluded that the plaintiffs failed to prove all of the elements of their claim under § 13a-144 and that General Statutes § 13a-145 precluded the state's liability under § 18a-144. The plaintiffs did not file a cross appeal from the judgment as to FrankeL In this opinion, we refer to L.G. DeFelice, Inc., as the defendant. Theresa Gurguis was the operator of the vehicle involved in the accident that is the subject of this lawsuit. Her son, Meena Gurguis, was a passenger in the vehicle. Her husband, Gamal Gurguis, brought a claim for loss of consortium. For our convenience, we refer to Theresa Gurguis in this opinion as the plaintiff. A "declivity" is defined as a "downward inclination." Merriam-Webster's Collegiate Dictionary (11th Ed. 2005). One of the defendant's claims is that, as the state's contractor, it could not be found liable to the plaintiff because the court determined that the state was not liable to the plaintiff. We need not address the issue of duty because the plaintiff failed to prove the requisite causation. See Malloy v. Colchester, 85 Conn. App. 627, 633, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). It should be noted, however, that the court specifically found that a sign advising of the road closure had been posted at the entrance ramp used by the plaintiff to access Interstate 395; the road was legally closed. A reasonably prudent person, being advised of construction and the closing of the road, is thereby given notice that one proceeds at his or her own risk. See General Statutes § 13a-145. With the posting of the sign, the traveling public was duly warned that hazards inherent in the construction process were present and that caution was required. The plaintiff argues that an additional warning was necessary to advise of the declivity, but a road closure sign necessarily takes into account various conditions that would arise by virtue of road construction. Because the issue of causation is dispositive of this appeal, we need not address the issue of whether the state's road closure sign would of itself be sufficient as a warning of any possible declivities along the closed road. The plaintiff, whose testimony was translated by an interpreter, briefly mentioned the declivity in her testimony: "[The Plaintiff]: After entrance [eighty-five], I looked in the mirror. I saw a truck was speeding. I thought it was gonna hit me. I swing to the left. I moved to the left lane and, after the truck pass me so fast, the edge of the truck make kind of like, what she stated, exactly like wave she found her car, the rear tire is hooked to the curb of the road. I lost control of the car, and the car keeps bouncing back and forth to the side of the road, which is about, like, five and a half, six inches high, and she found the trunk of the car is kind of high and she lost, she went in concussion." Such testimony is scant evidence that the plaintiffs vehicle hit the declivity when the vehicle left the paved portion of the highway and that she lost control because of the declivity.

Opinion SCHALLER, J. The defendant, Larry Powell, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a) and assault of public safety personnel in violation of General Statutes § 53a-167c (a) (l). On appeal, the defendant claims that (1) the trial court improperly admitted evidence regarding a civil lawsuit he brought against the city of Stamford and the police officers who arrested him, and (2) he was denied due process of law as a result of prosecutorial misconduct. We conclude that the court's admission of the evidence was proper and that no prosecutorial misconduct occurred. Accordingly, we affirm the judgment of the trial court. The jury reasonably could have found the following facts. On March 4, 2000, at approximately 1 a.m., Officer Thomas Scanlon of the Stamford police department observed a gold Ford Taurus parked in front of a known drug location at 27 High Street in Stamford. Suspicious of the activity, Scanlon followed the car to the Fairfield Court housing project. As Scanlon drove his police cruiser behind the car, he observed the defendant exit the passenger door of the vehicle. Scanlon proceeded to question the driver and learned that the driver did not know the defendant. On the basis of his experience, Scanlon believed that a drug transaction was occurring. Consequently, Scanlon approached and questioned the defendant as he attempted to enter a building within the housing complex. During that conversation, the defendant explained that the driver of the Taurus was seeking to buy marijuana. Scanlon asked the defendant if he was carrying any drugs or weapons. The defendant responded in the negative and invited the officer to search him. During the search, Scanlon discovered six bags and one loose rock of crack cocaine concealed in the fold of the defendant's winter cap. The defendant resisted arrest, and an altercation ensued, during which Scanlon used his police radio to request emergency assistance. Officers Brian Cronin and David Dogali of the Stamford police department were the first to respond to the request, and assisted Scanlon in subduing and arresting the defendant. During the scuffle, Cronin kicked at the defendant's leg in an effort to stop him from resisting. The defendant suffered a broken tibia during his arrest. Following the defendant's arrest, he filed a civil lawsuit against Scanlon, Cronin and the city of Stamford. The lawsuit alleged that the officers, acting in their official capacity, "falsely arrested" the defendant and "employed unreasonable force . ." As part of the civil lawsuit, depositions of the arresting officers were taken. At the defendant's criminal trial, during cross-examination of Scanlon, defense counsel sought to impeach Scanlon's direct testimony with a deposition transcript from the defendant's civil lawsuit. Defense counsel inquired whether Scanlon had placed the defendant's hand "behind [the defendant's] head" during the altercation. Scanlon responded that he had not, at which point defense counsel asked: "You testified in another proceeding in this matter regarding this. Do you recall giv[ing] a deposition?" (Emphasis added.) Defense counsel proceeded to impeach Scanlon with his deposition testimony, referring specifically to the "deposition" on five occasions during that initial cross-examination. On redirect examination, the prosecutor asked: "Counsel had mentioned something about a deposition. Well, what's that all about?" The court overruled an objection as to relevance by defense counsel and allowed the question, and Scanlon replied: "The defendant is suing myself as well as the other officers in the city of Stamford for, I believe, $1 million or in excess of $1 million." On recross examination, defense counsel referred to the civil lawsuit by asking: "You're being sued because you were one of the officers that broke [the defendant's] — that injured [the defendant], correct?" In sustaining the state's objection that the question required the witness to give an opinion, the court explained that it believed that defense counsel had opened the door to questioning regarding the civil action. Specifically, the court stated: "The existence of a suit is fine because that was raised by the deposition business." (Emphasis added.) Throughout the remainder of the trial, both defense counsel and the state made repeated references to the defendant's civil lawsuit. Following his initial objection, defense counsel primarily used that evidence to suggest that the arresting officers had fabricated their version of the events and had falsified their police reports in light of the pending civil lawsuit. During the cross-examination of Cronin, defense counsel asked, "So, you made every effort to try and take pictures of all of the injuries that [Scanlon] suffered on that night for evidence in the case and in the civil suit?" Defense counsel next inquired of Cronin, "Isn't it, in fact, true that knowing [the defendant] was injured, you discussed the case with the other officers in order to get your story straight?" During the cross-examination of ' Sergeant James Van Allen, the police supervisor at the scene of the incident, defense counsel again suggested that the police officers had falsified their reports in light of the pending civil lawsuit. Specifically, defense counsel adduced from Van Allen that the police reports were completed sixteen days after the incident occurred and then asked, "At that point, you knew there was probably going to be a lawsuit [filed] against you; is that correct?" The state's use of that evidence included impeaching the credibility of the defendant and suggesting that he had a significant financial incentive to testify falsely. The prosecutor referred to the defendant's "million dollar lawsuit" both while questioning witnesses and during the rebuttal portion of his closing argument. At the conclusion of the trial, the jury found the defendant guilty of possession of narcotics and assault of public safety personnel. The court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective term of five years incarceration, followed by three years of special parole. The crux of the defendant's appeal centers on the admission of testimony about the civil lawsuit and the state's subsequent use of that evidence. Additional facts will be set forth as necessary. I The defendant first claims that the court abused its discretion in permitting the state to elicit testimony that he had filed a civil lawsuit against the arresting officers and the city of Stamford. The state maintains that defense counsel "opened the door for the admission" of that testimony by introducing Scanlon's civil deposition during his cross-examination of Scanlon. The state further contends that the defendant has not demonstrated that the admission of testimony about the civil lawsuit, even if improper, was harmful. We agree with the state's contention that the court did not abuse its discretion in permitting the challenged testimony. Before addressing the merits of that claim, we set forth the applicable standard of review. "Unless an evi-dentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 811, 865 A.2d 1135 (2005). The state argues that by cross-examining Scanlon regarding his deposition testimony, the defendant opened the door to the state's line of questioning. We agree. "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other-grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence." (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106,186-87, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). In determining whether otherwise inadmissible evidence should be admitted to rebut evidence offered by an opposing party, the "court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." (Internal quotation marks omitted.) Id., 187. In essence, the defendant argues that the testimony concerning his civil lawsuit was irrelevant and that the prejudice to him that it caused outweighed any legitimate benefit to the state in placing the deposition transcript in its proper context. Specifically, the defendant contends that the admission of the testimony about his civil lawsuit was prejudicial in that it appealed to prejudices against persons who file personal injury and other similar lawsuits seeking damages. Our Supreme Court, however, has stated that "there is no reason to limit the right of a party to place in context testimony adduced by an opposing party and, consequently, appellate courts have not done so." State v. Gonzalez, 272 Conn. 515, 544, 864 A.2d 847 (2005). Furthermore, the "opening the door" doctrine is expressly intended to "prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context." (Internal quotation marks omitted.) State v. Colon, supra, 272 Conn. 187. Because the defendant successfully impeached Scanlon's trial testimony with his deposition testimony, the court reasonably determined that the question posed by the state was necessary to place the defendant's reference to a deposition from "another proceeding in this matter" in its proper context. Accordingly, because defense counsel introduced evidence concerning the deposition, the court did not abuse its discretion by permitting the state to question Scanlon regarding the context of that deposition. Even if we assume arguendo that the admission of the challenged testimony was improper, the defendant, nevertheless, has not demonstrated harmfulness. For the defendant to prevail on his claim, he must show that the error was harmful. State v. Gonzalez, supra, 272 Conn. 527. "It is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. . . . Two lines of cases have developed setting forth the standard for reversing nonconstitutional, evidentiary improprieties. Under one line of cases, the defendant must establish, in order to obtain a reversal of his conviction, that it is more probable than not that the result of the trial would have been different if the error had not been committed. . . . According to a second line of cases, the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict. . . . Under either formulation, [w]hether [the improper admission of a witness' testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless." (Citations omitted; internal quotation marks omitted.) Id., 527-28. In the present case, the existence of substantial physical evidence that was indicative of the defendant's guilt, as well as consistent testimony by the state's witnesses supporting that physical evidence renders the admission of evidence concerning the defendant's civil law suit harmless. Notwithstanding the defendant's arguments to the contrary, evidence was adduced at trial that the narcotics in question were found on the defendant's person. In addition, the state presented numerous photographs of the injuries sustained by Scanlon during his altercation with the defendant. That physical evidence was supported by consistent testimony by witnesses for the state, including two police officers who testified that they observed Scanlon struggling with the defendant. Because the jury properly could find that evidence credible, we cannot conclude that the defendant met his burden of establishing that the admission of the evidence concerning his civil action was harmful to him. II The defendant next claims that the prosecutor committed misconduct that denied the defendant his due process right to a fair trial. Specifically, the defendant argues that the state's closing argument constituted misconduct in that it (1) implored the jury to find him guilty on a basis other than the evidence of the offense committed, (2) imposed a penalty on him for exercising his first amendment rights and (3) shifted the burden of proof to him. We are not persuaded. At the outset, we note that the defendant concedes that the instances of alleged misconduct were not preserved for our review. "[T]he touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial. . . . [That] determination must involve application of the specific prosecutorial misconduct factors articulated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), regardless of whether the defendant objected to the incidents of misconduct at trial. . . . Nevertheless, both our Supreme Court and this court have also emphasized that the responsibility of defense counsel, at the very least, [is] to object to perceived prosecutorial improprieties as they occur at trial, and we continue to adhere to the well established maxim that defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. . . . Accordingly, we emphasize that counsel's failure to object at trial, while not by itself fatal to a defendant's claim, frequently will indicate on appellate review that the challenged comments do not rise to the magnitude of constitutional error . Put differently . . . prosecutorial misconduct claims [are] not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that . . . have deprived a criminal defendant of his right to a fair trial." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Boyd, 89 Conn. App. 1, 27-28, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005); see also State v. Stevenson, 269 Conn. 563, 573-77, 849 A.2d 626 (2004). As a preliminary matter, we set forth certain relevant legal principles that guide our resolution of this issue. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . In analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial . We also note that in order to prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice by establishing that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process." (Citations omitted; internal quotation marks omitted.) State v. Boyd, supra, 28-29; see also State v. Stevenson, supra, 269 Conn. 571-72. In the present case, because the claimed prosecu-torial misconduct occurred primarily during closing argument, we set forth the legal principles applicable to such claims. "[P]rosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. . In determining whether such misconduct has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case. . . . "Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. . A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows. . In examining the prosecutor's argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . "Last, we note that [w]e do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. . It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted." (Citation omitted; internal quotation marks omitted.) State v. Boyd, supra, 89 Conn. App. 29-30. With the foregoing in mind, we turn to the defendant's specific claims. We begin our analysis by first determining whether the prosecutor's actions constituted misconduct. Only if we determine that misconduct occurred will we proceed to the second question of whether the defendant was denied his due process right to a fair trial. The defendant first argues that the state's rebuttal argument urged the jury to find him guilty, not on the basis of the evidence of the offenses charged, but rather as a means of sanctioning him for bringing a civil lawsuit. The defendant also argues that by inviting the jury to find him guilty as a means of sanctioning him, the state imposed a penalty on him for bringing his civil lawsuit, specifically, a penalty that violated his first amendment right to petition the government for redress of grievances. Finally, the defendant argues that the state's rebuttal argument shifted the burden of proof to him to prove that his civil lawsuit had merit. Because each of those arguments depends on whether the prosecutor improperly implored the jury to find the defendant guilty on any basis other than the evidence of the offenses charged, we examine them together. The following additional facts are necessary to our resolution of the defendant's claims. During the state's initial closing argument to the jury, the prosecutor made no reference to the defendant's civil lawsuit. Nevertheless, in closing argument, defense counsel stated: "[The defendant] testified [that] he's suing the city. He doesn't know anything about $1 million. He personally thinks it's worth $5 million. He's about as much a lawyer as [the prosecutor] is a mathematician or Officer Cronin is an English major." He also stated: "The police break your leg and crack your head open, you get the book thrown at you. Of course, [the defendant] is suing the city, as if we could keep that a secret. That's what happens when things like this happen. . . . This case is about a broken leg. It's not about [the defendant] suing the police department. I'm not coming . up here and showing you the pictures. I know you seen all the pictures. You know his leg was broken. You're sick of it. We all are. But what's right is right." In its rebuttal, the state directly responded to the defendant's closing argument by beginning: "You're right, [the defendant] wants what's right. He wants what's right. You're right, there's no question about that. No question about that he wants $5 million. That's what's right for him. This is about money for this gentleman. Self-serving, it's about money. That's what this is about. You heard testimony about this civil lawsuit, and there was a question asked. You want one? He said five. Five is more than one. It's about money. It's about money. That's what's right for him. Because remember, everything else is a conspiracy, according to this defendant." The state completed the remainder of its closing argument without further comment on the defendant's civil lawsuit, but concluded: "At this particular time, ladies and gentlemen, say 'no more' to [the defendant]. Just say 'no more' to him. No more of his inconsistencies, his self-serving statements, his misstatements, [and] the contradictions within his own defense. Say 'no more' to [the defendant]. Say 'no more.' It's about money for this man. It's all about money. He told you about his lawsuit. Say 'no more.' Say 'no more' to his larceny. Say 'no more' to his child support issue that he brought up. Say 'no more' to [the] unjust violation probation hearing. Say 'no more' to his million dollar lawsuit. Say 'no more' to the unlawful hearing. Say 'no more' to conspiracy theories. Just say 'no more' to [the defendant] . And the way you say 'no more' to [the defendant], based on all the evidence that was elicited in this case, is to take the piece of paper, the long form information that the state filed [and] the judge will give you, [and] you find him guilty of those counts. And you say 'no more' to [the defendant]. And you let him know what he knows [to] be true since March 4, 2000, that he is guilty." In support of his position that the state urged the jury to find him guilty as a means of sanctioning him for initiating a civil lawsuit, the defendant refers to the portion of the state's rebuttal argument in which the prosecutor instructed the jury to "[s]ay 'no more' to [the defendant's] million dollar lawsuit" and then explained that "the way you say 'no more' . . . based on all the evidence that was elicited in this case . . . is to . . . find him guilty of those counts." Although the state made repeated references to the defendant's "million dollar lawsuit" during its rebuttal argument, those comments made up only a small portion of the state's closing argument and were not objected to by defense counsel. Indeed, rather than imploring the jury to find the defendant guilty on an improper basis, the state, on two occasions, expressly instructed the jury to base its verdict on "all the evidence that was elicited in this case . . . ." Because the existence of the defendant's civil lawsuit was properly admitted into evidence, it was permissible for the jury to consider such evidence and any inferences that could be drawn therefrom. See State v. Mulero, 91 Conn. App. 509, 520, 881 A.2d 1039 (2005) ("[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences the jurors might draw therefrom" [internal quotation marks omitted]). Consequently, the jury was free to question the veracity of the defendant in light of the pending civil lawsuit. Finally, the defendant raised his civil lawsuit in closing argument, and "[t]he state may . . . properly respond to inferences raised by the defendant's closing argument." (Internal quotation marks omitted.) State v. Boyd, supra, 89 Conn. App. 37. The prosecutor's rebuttal argument, therefore, responded to the defendant's closing argument and suggested inferences for the jury to draw about the defendant's veracity on the basis of the evidence. We conclude, therefore, that when viewed in light of the trial as a whole, the prosecutor's comments were not improper and did not constitute misconduct. Accordingly, we reject the defendant's claim of prosecu-torial misconduct. The judgment is affirmed. In this opinion McLACHLAN, J., concurred. The defendant was charged, by a long form information, with possession of narcotics in violation of § 21a-279 (a), possession of narcotics with the intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), sale of narcotics in violation of General Statutes § 21a-278 (b), assault of public safety personnel in violation of § 53a-167c (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a. In contrast to Scanlon's version of the events, the defendant testified that Scanlon had asked to search him and that he believed that he had no choice but to comply. Contrary to the officers' version of the arrest, the defendant testified that he did not resist and that his leg was broken when it was struck by either a flashlight or a police baton. The complete exchange was as follows: "[The Prosecutor]: Counsel had mentioned something about a deposition. Well, what's that all about? "[Defense Counsel]: Objection. "[The Prosecutor]: Well, he brought it up. "The Court: Well, the question isn't very specific. What's the basis of your objection? "[Defense Counsel]: Objecting on grounds of relevance that was very— that the question is very limited. "The Court: I'll overrule the objection. "[The Prosecutor]: Thank you. "[The Witness]: The defendant is suing myself as well as the other officers in the city of Stamford for, I believe, $1 million or in excess of $1 million. "[The Prosecutor]: And that deposition was something you took? "[The Witness]: Civil. "[The Prosecutor]: On the civil end of this? "[The Witness]: Yes. "[The Prosecutor]: All right. And that hasn't even come out yet, that case? "[The Witness]: No. "[The Prosecutor]: That's still pending, as far as you know? "[The Witness]: Yes." Defense counsel also repeatedly utilized various witnesses' civil deposition testimony to impeach their respective trial testimony. The complete examination was as follows: "[Defense Counsel]: [The report] was documented approximately two weeks — it's actually sixteen days after (he incident happened? "[The Witness]: Correct. "[Defense Counsel]: After that point, you knew how severely injured [the defendant] was, correct? "[The Prosecutor]: Objection. "The Court: Sustained. "[Defense Counsel]: At that point, you knew there was probably going to be a lawsuit against you; is that correct? "[The Prosecutor]: Objection. "[The Witness]: To my knowledge, there's no lawsuit against me. "The Court: Was there a lawsuit? "[Defense Counsel]: There was knowledge on the part of the police. "The Court: Aslc him the question, not tell him the answer. " [Defense Counsel]: You were well aware at that point that [the defendant] was going to sue you as well as the other officers; is that right? "[The Witness]: He's never instituted anything against me. There was always — every time we get in a fight with somebody, there's a possibility that they're going to come around and sue us. That's the way things are. "[Defense Counsel]: Probably even a bigger possibility when that person ends up in the hospital, as in this case; we keep throwing broken leg out, but broken tibia? "[The Prosecutor]: Your Honor, probably a bigger possibility. "The Court: Just get to the point, counsel, that's argumentative. "[Defense Counsel]: It's pretty safe to assume that [the defendant] was going to sue the police at that point; correct? "[The Witness]: Maybe." The state repeatedly characterized the defendant's civil lawsuit as a "million dollar lawsuit" while questioning the defendant, a defense witness, various state witnesses and during closing argument. The defendant also claims that when prosecutorial misconduct itself involves a direct violation of a defendant's constitutional rights, the state must prove harmlessness beyond a reasonable doubt. Because we conclude that misconduct did not occur in the present case, we need not address that issue. Although the defendant refers to the state's closing argument as the most serious instance of misconduct, he also contends that the state's repeated references to his "million dollar lawsuit," made during the examination of witnesses, "constitutes additional, related misconduct that further exacerbated the improper effects of the state's closing argument." Even if we assume arguendo that misconduct occurred, the prosecutor's comments did not deprive the defendant of the right to a fair trial. In cases in which incidents of alleged prosecutorial misconduct were not objected to at trial, following a determination that misconduct has occurred, this court must apply the factors set out by our Supreme Court in State v. Williams, supra, 204 Conn. 540. See State v. Stevenson, supra, 269 Conn. 572-76. Among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . tire strength of the curative measures adopted . . . and the strength of the state's case." (Citations omitted.) State v. Williams, supra, 540. In the present case, the state's references, made during its rebuttal argument, to the evidence of the defendant's civil lawsuit were a direct response to and therefore were invited by defense counsel's closing argument. Although the state's comments did directly challenge the veracity of the defendant, when viewed in light of the state's closing argument as a whole, the state's references to the civil lawsuit were not frequent or improperly severe. Furthermore, defense counsel evidently did not perceive the state's closing comments or the admission of that evidence to be particularly harmful. He did not file a motion in limine to preclude that evidence, nor did he object to the state's closing argument, seek a curative instruction, request a specific jury charge or seek a mistrial. Our Supreme Court has explained that the determination of "whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor's improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant's right to a fair trial." State v. Stevenson, supra, 269 Conn. 575; State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992); see also State v. Andrews, 248 Conn. 1, 19-20, 726 A.2d 104 (1999). Finally, as previously discussed, the substantial physical and testimonial evidence reflected the strength of the state's case and provided the jury with credible evidence on which it could convict the defendant. In light of the Williams factors, therefore, even if we assume arguendo that misconduct occurred, it did not deprive the defendant of a fair trial.

Opinion FLYNN, J. The plaintiff, the city of Milford, appeals from the judgment of the trial court denying its application to modify and correct the arbitration award and confirming the award of $136,787.50 in favor of the defendant, Coppola Construction Company, Inc. The plaintiff claims that the court should have modified the arbitrator's award pursuant to General Statutes § 52-419 (a) because the award (1) failed to conform to the submission and (2) contained material miscalculations. The defendant claims that the submission to arbitration was unrestricted because the plaintiff rescinded the contract that contained the limiting provisions, and that the award conforms to the submission. The court determined that because the contract between the parties provided that not all types of damages were amenable to arbitration, the parties made a restricted submission but that the award conformed to that submission. We affirm the judgment of the trial court. Resolution of the plaintiffs appeal requires us to determine first whether the submission to the arbitrator was restricted or unrestricted. We conclude that the court correctly determined that the submission was restricted because, as stated in the arbitration clause, the parties waived claims against each other for consequential damages, with the exception of anticipated lost profit arising directly from the work, and, therefore, claims for such waived damages were not arbitrable. The scope of the trial court's review and our review on appeal, however, is only as broad as the nature of the restrictions allow. We conclude that the trial court's determinations that no prohibited consequential damages were awarded and that the award conformed to the submission were within the scope of that court's review and were proper given the nature of the restrictions at issue, and we decline to go beyond that to review de novo the evidence before the arbitrator. The following facts are relevant to our resolution of this appeal. On December 11, 2000, the plaintiff entered into a contract with the defendant to elevate six private residential structures in Milford for $294,000. Paragraph 9.10.4 of the contract provided, in part, that claims and disputes arising out of the contract would be resolved by arbitration, except, however, according to paragraph 9.11, the parties waived claims against each other for consequential damages, excepting only anticipated lost profits arising directly from the work. After seven months of delay caused by issues regarding code requirements that had arisen between the plaintiff and the office of the state building inspector, the defendant began lifting the first house and discovered that the house had a type of framing different from what was anticipated. The defendant negotiated a change order that increased the contract price to $309,000 to compensate the defendant for the condition it encountered. The change order was confirmed by the defendant's October 1, 2001 letter. Thereafter, it was discovered that the other five houses also had this type of different framing, and the city ordered that work stop until the parties could be agreed on a price. On May 17, 2002, the plaintiff wrote a letter to the defendant stating: "Inasmuch as [the defendant] is unwilling or unable to resume and complete the work at the price set forth in the contract, or at any mutually agreed upon price, the [plaintiff] has no choice but to cancel the contract." At that point, one house was complete, one had been withdrawn from the project by its private owner and four remained to be elevated. The submission the parties made to arbitration was invoked by the following demand, which we summarize. On March 27, 2003, the defendant submitted what it termed an arbitration statement. In that statement, the defendant alleged that the plaintiff had rescinded the contract and that the contract provisions, except for dispute resolution, were null and void because the plaintiff had abandoned them. The defendant alleged that the plaintiff "attempted to concoct reasons for the rescission such as [that the defendant] defaulted on its obligations under the contract. There was no default by [the defendant] for the reason stated by [the plaintiff] that it was unable to complete the project because the parties were unable to fix a price for the changed condition." The defendant further alleged that it had bought specialized equipment for the project, which sat idle for seven months "while [the plaintiff] corrected the plans to allow a permit to be obtained." The defendant stated that it had a cause of action for wrongful termination and for bad faith against the plaintiff and therefore was entitled to damages for idle equipment, demobilization costs, field costs, lost profit and attorney's fees. The plaintiff, in its April 8, 2003 answer, denied all causes of action and all claimed damages. The plaintiff alleged, inter alia, as special defenses that the defendant persistently failed to carry out work in accordance with the contract, that the defendant refused to perform work at the contract price, that the purpose of the contract was being frustrated at a time when the project was less than 20 percent complete and grant moneys were ending, and that, under such circumstances, on May 17, 2002, the plaintiff terminated the contract, directing the defendant not to resume work and to leave the project. The parties submitted their dispute to arbitration. On August 11, 2003, an arbitrator awarded the defendant $136,787.50 in damages for lost profits, idle equipment and materials, plus interest. The plaintiff filed an application to modify and correct the arbitration award. The court denied the plaintiffs motion on December 1,2004, confirming the arbitrator's award with 10 percent interest per year from August 1, 2002. This appeal followed. I We first set forth our standard of review. If the parties choose to set limits on the arbitrator's powers, then the parties will be bound by those limits. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983). "The process which governs the confirmation of arbitral awards is well settled by our cases. If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration. . . . This submission can be invoked by a demand for arbitration by one or both parties when a dispute arises. The agreement for submission constitutes the charter for the entire ensuing arbitration proceedings." (Citations omitted.) Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980). "[Our Supreme Court] has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes 'intended to avoid the formalities, delay, expense and vexation of ordinary litigation.' Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981); Administrative & Residual Employees Union v. State, 200 Conn. 345, 349, 510 A.2d 989 (1986). When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. Stratford v. Local 134, IFPTE, 201 Conn. 577, 585, 519 A.2d 1 (1986); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583, 440 A.2d 774 (1981); Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 64, 357 A.2d 466 (1975)." O & G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). "The well established general rule is that [w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law as long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . . Furthermore, in applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators' acts and proceedings. . . . Further, [judicial review of arbitral decisions is narrowly confined. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous." (Citations omitted; internal quotation marks omitted.) Board of Education v. Civil Service Employees Affiliates, Local 760, 88 Conn. App. 559, 566-67, 870 A.2d 473 (2005). "The significance . of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators' decision." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005). To apply the appropriate standard of review in this case, we must first determine whether the submission was restricted or unrestricted. However, even if restricted, the breadth or narrowness of the scope of our review is necessarily limited by the nature of the restriction. Maluszewski v. Allstate Ins. Co., 34 Conn. App. 27, 32, 640 A.2d 129, cert. denied, 229 Conn. 921, 642 A.2d 1214 (1994). The plaintiff claims that the submission in this case was restricted in scope because the contract contained provisions which excluded certain items from arbitration. The defendant claims that the submission was unrestricted because the plaintiff had rescinded the contract and only the arbitration provision, without any limitations, existed. The court found that it was restricted and we agree. We first address the defendant's contention that by the time of the arbitration authorized by paragraph 9.10.4, paragraph 9.11 and its language limiting damages did not exist for purposes of the arbitration award because the plaintiff had rescinded the contract. The defendant cites Metcalfe v. Talarski, 213 Conn. 145, 567 A.2d 1148 (1989), and states that in that case our Supreme Court held that "[t]he effect of a rescission is to extinguish the contract and to annihilate it so effectively that in contemplation of law it has never had any existence, even for the purpose of being broken." (Internal quotation marks omitted.) Id., 159. Metcalfe, which did not involve arbitration, stands for the proposition that a rescission of an agreement puts an end to that agreement for all purposes. Id. The defendant's argument in this respect is internally inconsistent because the defendant participated in the arbitration and throughout maintained that at least part of the arbitration clause continued to be effective. Moreover, the dispute that was submitted to arbitration was the defendant's claim for damages because the plaintiff terminated the contract. The defendant also relies on Carlin Contracting Co. v. Blakeslee Arpaia Chapman, Inc., Superior Court, judicial district of New London, Docket No. 551690 (February 22, 2000) (26 Conn. L. Rptr. 466), to support its claim that the plaintiffs rescission of the contract left only the arbitration clause. The arbitration clause in this case incorporates the hmiting language of paragraph 9.11 into its provisions. Therefore, regardless of whether a rescission took place, the submission is restricted. The arbitration clause specifically excluded certain items from arbitration, and we conclude that the parties thereby restricted the arbitrator's authority. We previously have stated that "express language restricting the breadth of issues" limits the arbitrator's authority. (Internal quotation marks omitted.) Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education, 66 Conn. App. 457, 460-61, 784 A.2d 1018 (2001). "Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator's powers, the parties are generally bound by the resulting award." O & G/O'Connell Joint Venturer. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 145. However, apart from those items specifically excluded from arbitration, the language of the arbitration clause is broad enough in scope to reflect the parties' general agreement to settle disputes relating to their contract through arbitration, including the issue of rescission. The agreement provides in the arbitration clause, § 9.10.4, that, with some exception, "[c]laims, disputes and other matters in question arising out of or relating to the [cjontract" shall be decided by arbitration. The defendant, in its arbitration statement, claims that the plaintiff rescinded the contract and that the defendant sought damages accordingly. The plaintiff, in its answer, disagreed, stating that the contract was cancelled. The parties placed the issue of rescission before the arbitrator. Any determination with regard to rescission and which contract provisions were subsequently still in effect was within the arbitrator's scope of authority. On review, all we can determine is whether the award conformed to the submission, taking into account the restrictions. In Maluszewski v. Allstate Ins. Co., supra, 34 Conn. App. 34, we recognized that the salutary purposes of encouraging people to arbitrate their disputes and to come to their final resolution by that means, applies even to restricted arbitration clauses. As we held in that case, if the parties engaged in voluntary, but restricted, arbitration, the trial court's standard of review would be broader or narrower depending on the specific restriction. Id., 32. II The plaintiff first claims that the award does not conform to the submission and the court improperly failed to modify the award pursuant to § 52-419 (a) (2). Specifically, the plaintiff claims that the arbitrator's award improperly included damages for idle equipment and unused materials, which were consequential damages that were not arbitrable under the agreement. The defendant argues that the damages for idle equipment and unused materials were liquidated direct damages, which were arbitrable under the agreement. We are not persuaded by the plaintiffs argument. Paragraph 9.10.4 provides: "Claims, disputes and other matters in question arising out of or relating to the contract that are not resolved by mediation, except matters relating to aesthetic effect and except those waived as provided for in paragraph 9.11 . . . shall be decided by arbitration . . . ." (Emphasis added.) Paragraph 9.11 provides: "The contractor and owner waive claims against each other for consequential damages arising out of or relating to this contract. This mutual waiver includes [and] is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 19. Nothing contained in this paragraph 9.11 shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the contract documents." (Emphasis added.) "The Restatement (Second) of Contracts divides a defendant's recovery into two components: (1) direct damages, composed of 'the loss in value to him of the other party's performance caused by its failure or deficiency'; 3 Restatement (Second), Contracts § 347 (a) (1981); plus, (2) 'any other loss, including incidental or consequential loss, caused by the breach . . . .' Id., § 347 (b)." Ambrogio v. Beaver Road Associates, 267 Conn. 148, 155, 836 A.2d 1183 (2003). "[D]amages resulting from a breach of contract may be divided into those which flow naturally and usually from the breach itself, or general damages, and those which do not naturally and usually flow from such a breach, but did in this case, or special or consequential damages. As to the former, the parties need not actually have considered the possibility of their occurrence, as long as they may fairly be supposed to have considered them, while, as to the latter, to be recoverable, they must meet the requirements of causation, certainty, and foreseeability, that is, be such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract. Stated another way, when a defendant has reason to know, before entering into the contract in question, of facts indicating that particular, though unusual, damages will follow or may follow the defendant's failure to perform its agreement, the defendant is liable for such damages." 24 S. Williston, Contracts (4th Ed. Lord 2002) § 64:12, pp. 130-31. "General damages are considered to include those damages that flow naturally from a breach, that is, damages that would follow any breach of similar character in the usual course of events. Such damages are said to be the proximate result of a breach, and are sometimes called 'loss of bargain' damages, because they reflect a failure on the part of the defendant to live up to the bargain it made, or a failure of the promised performance itself. Consequential damages, on the other hand, include those damages that, although not an invariable result of every breach of this sort, were reasonably foreseeable or contemplated by the parties at the time the contract was entered into as a probable result of a breach. These, too, must be proximately caused by the breach, and the difference is that they do not always follow a breach of this particular character." Id., 123-28. The arbitrator awarded $26,366.67 for idle equipment and $6315.83 for materials. The award conformed to the submission. The arbitrator, in awarding damages for idle equipment and unused materials, did not award consequential damages that were not arbitrable, but general damages, which were arbitrable. "The arbitrator is only required to render an award in conformity to the submission and an award need not contain an explanation of the means by which he reached the award. . . . Every reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission." (Citation omitted.) Bic Pen Corp. v. Local No. 134, supra, 183 Conn. 585. Although we do not have a record to justify a review of the facts behind the damages award for idle equipment and unused materials, in the general context, these are the type of damages that naturally flow from a breach. If a contractor, having dedicated equipment to a timely completion of the contract, is delayed for seven months because of disagreements between the office of the state building inspector and the municipality, which were not the fault of the contractor, such claims are for general not consequential damages because those damages flow directly and naturally from a breach of this kind, which delays the contractor's utilization of such equipment. The same reasoning would justify an award of damages for unused material stockpiled for the project. The restriction on an award of consequential damages therefore was not violated when the arbitrator awarded the defendant moneys for equipment downtime and the unused materials. Such damages are general damages and not consequential as they naturally follow from a breach of this kind. Ill The plaintiff next claims that the arbitrator made two material miscalculations when awarding $104,105 for lost profits and, therefore, the court acted improperly by failing to modify the arbitration award under § 52-419 (a). Specifically, the plaintiff claims that the amount for lost profits should be recalculated because the arbitrator failed to subtract common project costs it paid up front, and it claims that the arbitrator used an incorrect lesser amount when subtracting the defendant's written estimated costs. We disagree. General Statutes § 52-419 (a) (1) does not apply in this case because there has not been an evident material miscalculation of figures or an evident material mistake in the description of any thing or property referred to in the award. Our Supreme Court interpreted § 52-419 (a) in Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 677-80, 591 A.2d 101 (1991). In that case, the court gave a more expansive meaning to § 52-419 (a) (1) so as to permit the modification of a compulsory arbitration award in an uninsured motorists coverage case to reflect the decedent's comparative negligence and credit that is applicable to a tortfeasor's coverage, where neither was contested by the parties in the trial court, where the modification required only undisputed mathematical calculations and where the trial court properly had upheld the arbitrators' factual findings and properly reversed their determination. However, in this case, any claimed miscalculation is not evident from the succinct award, which does not contain underlying findings. Establishing such a claimed miscalculation would require ah examination of exhibits and testimony and require inquiry into factual matters of how the award, in fact, was calculated. For instance, the plaintiff claims that the errors in damages calculation readily can be ascertained on the basis of two or three exhibits that contradict the calculations in a fourth exhibit, exhibit 59, which the plaintiff states was the basis for the arbitrator's award. This hardly is evident because no miscalculations appear on the face of the award. The plaintiff is, in essence, asking that we review the evidence presented to the arbitrator de novo. We decline to undertake such review in this case of voluntary arbitration. Section 52-419 (a) (1) permits modification if there is an evident material miscalculation. One does not exist when the award is compared to the submission in this case. Section 52-419 (a) (3) provides for modification of an arbitration award "if the award is imperfect in matter of form not affecting the merits of the controversy." In this case, an imperfection is not clear from the award itself, and any examination of the claimed imperfection would require this court to review the evidence and the claims between the parties. More precisely, § 52-419 (a) (3) does not apply in this case because any imperfection in the award likewise affected the merits of the controversy. See generally Chmielewski v. Aetna Casualty & Surety Co., supra, 218 Conn. 678 n.27. Accordingly, we conclude that the court acted properly in affirming the arbitrator's award and refusing to modify it on the basis of the plaintiffs § 52-419 (a) claims. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 52-419 (a) provides: "Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy." The award in its entirety states the following: "I, the undersigned arbitrator, having been duly sworn in accordance with the arbitration agreement dated December 11, 2000, and having heard all proofs and allegations of the parties, award as follows: "For the Tdefendantl Lost Profits $ 104,105.00 Idle Equipment $ 26,366.67 Materials $ 6.315.83 Subtotal $ 136,787.50 Interest $ 13,802.60 Total $ 150,590.10 "Accordingly, [the plaintiff] shall pay [the defendant] the sum of $150,590.10. "The fees and expenses of the [American Dispute Resolution] Center totaling $5,092.33 are to be borne equally by the parties, therefore, [the plaintiff] shall pay [the defendant] the sum of $1250.00 representing [the plaintiffs] portion of the filing fee paid by [the defendant.] "The compensation and expenses of the arbitrator totaling §8223.80 are to be borne equally by the parties. It is noted that the parties have paid their portions in full. "This award of the arbitrator is final of all claims submitted in this arbitration matter." Paragraph 9.10.4 provides in relevant part: "Claims, disputes and other matters in question arising out of or relating to the contract that are not resolved by mediation, except matters relating to aesthetic effect and except those waived as provided for in paragraph 9.11 . . . shall be decided by arbitration . . . ." Chmielewski v. Aetna Casualty & Surety Co., supra, 218 Conn. 646, involved arbitration compelled by statute, whereas this case involves a voluntary arbitration agreement. Voluntary arbitration arises where parties freely enter an agreement to settle disputes through arbitration. In Chmielewski, arbitration was compelled by statute for uninsured and underinsured motorists claims. "Unlike the court's more limited role in reviewing voluntary arbitration awards, where the court in most cases simply compares the award to the submission, in a compulsory arbitration case the court must have the authority to enter an appropriate order modifying the award so as to reflect those factual findings and that legal determination, and thus to effect the intent of the award as it should have been rendered under the law and to promote justice between the parties." Id., 679. "[WJhere judicial review of compulsory arbitration proceedings required by [General Statutes] 38-175c (a) (1) is undertaken under General Statutes § 52-418, the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators." (Emphasis added.) American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987).

Opinion MCDONALD, J. The defendant, Madalena Silva, appeals from the judgment of conviction, rendered after a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a-167a. On appeal, she claims that the state did not present sufficient evidence to support her conviction and the trial court improperly instructed the jury as to consciousness of guilt. The state charged the defendant in an amended information with two counts of interfering with a police officer and two counts of breach of the peace. The first count of interference with a police officer charged that the defendant did so "by saying to [the officer] when requested to produce [her] license, registration and insurance information during a motor vehicle stop, 'F_k you. I ain't giving you s_t, asshole .'" The second count charged the defendant with interfering with an officer "by running from [the officer] and fleeing on foot across North Avenue and entering the driver's side of an unidentified green vehicle which left the scene at a high rate of speed, after being instructed by [the officer] not to leave the scene . . . ." A jury found the defendant guilty of the two counts of interfering with an officer in violation of § 53a-167a. The defendant was acquitted of one of the breach of the peace charges. This appeal followed. We first set forth our standard of review. "In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [fact finder] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Robert H., 273 Conn. 56, 64, 866 A.2d 1255 (2005). The following evidence was presented at trial. At about 5 p.m. on June 22, 2003, the defendant's brother was involved in an automobile collision on North Avenue in Bridgeport. All three vehicles involved in the collision had to be towed from the scene because of major damage, and the defendant's brother complained of neck and back pain. Officers Jason Ferri and Todd Sherback of the Bridgeport police department, who were on routine motor patrol, went to the accident scene to help the investigating officer, Officer Mark Gudauskas, complete necessary paperwork. To avoid obstructing the heavy rush hour traffic, Ferri and Sher-back parked their police cruiser in a nearby private parking lot. As the defendant drove by the scene, Ferri and Sher-back observed her stop abruptly on the street, back up, execute a three point turn and back quickly into the parking lot where they had parked their police cruiser, nearly causing a collision. They also saw that her vehicle did not have a required front license plate. The officers told the defendant that they were going to issue an infraction ticket for unsafe backing and no front license plate. At that time, the officers asked the defendant for her driver's license, automobile registration and insur- anee card. She asked to be let alone. To the officers' second request, she replied, "You Bridgeport cops are all the f_king same. To protect and serve? Yeah right, my ass." When the officers repeated their request, she stated, "F_k you. I ain't giving you s_t, asshole. I'm taking my brother to the hospital, and you are not f_king stopping me." She was loud and belligerent, stamping her foot, and a crowd of twenty-five to thirty people gathered. At that time, the officers did not issue the infraction ticket because the defendant became very loud and angry when asked for her registration. At some unknown time, however, the officers did issue an infraction ticket. Fern and Sherback decided to arrest the defendant for breach of the peace and interfering with an officer after her belligerent responses to their requests. The defendant's mother, who was present with the defendant's father, began to interfere with the officers' investigation by stating that her daughter had done nothing wrong. Because of this, the defendant was not arrested. At that time, as the officers tried to talk to the defendant's mother, the defendant immediately ran into the street, entered a vehicle and drove away, leaving her automobile in the parking lot. Ferri had told the defendant not to leave the scene and then asked the defendant's mother to use her cellular telephone to call the defendant. The defendant's mother explained to the officer that the defendant was bringing her brother to a hospital. After speaking with the defendant, her mother told the officers that the defendant would return after she went to the hospital. The officers waited for one-half hour and conferred with their supervisor, Sergeant Stephen Lougal, whom they called to explain that they intended to arrest the defendant. They also wanted Lougal to speak to the defendant's mother about the mother's complaint that her son had not received medical assistance. The offi cers then went to the nearer of the two hospitals in Bridgeport. They located the defendant at the emergency room and arrested her for breach of the peace and interfering with an officer. When the officers approached her, the defendant stated to them, "Not you assholes again," and told her friend the officers were coming for her. Our Supreme Court has held that a person is guilty of "interfering" with an officer when he interferes with a police officer in the performance of his duties, and the statute encompasses only interference that is intentional. State v. Williams, 205 Conn. 456, 473-74, 534 A.2d 230 (1987). In Wiliams, our Supreme Court, "[t]o avoid the risk of constitutional infirmity," also construed "53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Internal quotation marks omitted.) Id., 473, citing Chaplinski v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031(1942). The defendant claims that there was insufficient evidence to support her conviction for obstructing or hindering an officer. She argues that the conduct alleged in the first count of the information does not constitute interfering with an officer in violation of § 53a-167a. In Williams, our Supreme Court limited § 53a-167ato physical conduct and "fighting words." Justice Powell, concurring in Lewis v. New Orleans, 415 U.S. 130, 135, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974), stated that words may or may not be fighting words depending on the circumstances. In Lewis, when the police asked for her husband's motor vehicle documents, the defendant loudly called them "m. f[s]." Id., 131 n.1. Justice Powell, whose view of language as obstructing police officers was followed in Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987), noted the objectionable words would not likely have precipitated a physical confrontation between a middle aged woman and the police. Id., 135 (Powell, J., concurring). The evidence in this case was that the defendant was a young female college student addressing two trained police officers. The defendant's use of the "f ' word and an objectionable insult would be equally unlikely to provoke a violent reaction from the officers, who are expected to exercise a higher degree of restraint than the average citizen. Sherback testified that Bridgeport officers are trained to handle verbal insults and not to punch someone who swears at them. We conclude that there were no fighting words. In order for this court to sustain a conviction for hindering an officer, in this case, the state has to have produced evidence that the defendant, by her actions, intentionally hindered the officer. The failure to turn over the requested documents alone could not support a conviction for hindering the officers because the legislature penalized that conduct itself as an infraction under General Statutes § 14-217. See State v. Aloi, 86 Conn. App. 363, 370-71, 861 A.2d 1180 (2004), cert. granted, 273 Conn. 901, 867 A.2d 840 (2005). All of the cases that we have found that uphold a conviction for intentionally interfering with an officer deal either with physical assaults or struggles with officers or with attempts to escape from apprehension or discovery at a crime scene or to destroy evidence of guilt of a crime. See, e.g., State v. Williams, supra, 205 Conn. 468-69; State v. Simmons, 86 Conn. App. 381, 388, 861 A.2d 537 (2004), cert. denied, 273 Conn. 923, 871 A.2d 1033, cert. denied, 544 U.S. 826, 126 S. Ct. 356, 163 L. Ed. 2d 64 (2005); State v. Hampton, 66 Conn. App. 357, 360-61, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001); In re Adalberto S., 27 Conn. App. 49, 55-56, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992); State v. Weber, 6 Conn. App. 407, 416-17, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986); State v. Biller, 5 Conn. App. 616, 621, 501 A.2d 1218 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S. Ct. 3296, 92 L. Ed. 2d 711 (1986). The state, citing State v. Biller, supra, 5 Conn. App. 619-21, claims that delaying the police in issuing the infraction ticket is sufficient to support a conviction for interfering with an officer. Hitter involved, however, a defendant who resisted a search of his pockets for incriminating evidence and struggled to prevent the search. Id., 619. Here, the evidence was only that the officers told the defendant that they intended to issue a ticket. They also asked the defendant for her motor vehicle license and registration documents. Although Ferri testified that he asked for the documents because a ticket was going to be issued, the state did not produce evidence that it was necessary to obtain the defendant's motor vehicle documents to issue the infraction ticket or that the officers had informed the defendant of that necessity. There was also undisputed evidence that the defendant left her vehicle in the parking lot with the police officers. Her mother, who remained with the officers, testified without dispute that she gave the requested paperwork found in the vehicle to the police. The defendant's mother also was available to identify the defendant and to give her address to the police. Morever, Sherback testified that at some later time the infraction ticket was issued, but the state did not establish the time or other circumstances under which the infraction ticket was issued. We note that the only evidence as to delay was the testimony that the officers waited one-half hour after the defendant left the scene, which was the subject of the second count. The state argues that the defendant's failure to produce her operator's license and the vehicle's registration supports the finding that her actions hindered the officer's efforts to issue her an infraction ticket. It argues that the defendant's guilt was based on her physical act of failing to turn over the requested information to a police officer when ordered to do so, not solely on her verbal reaction. The state, however, produced evidence that showed only that, at the time, the officers did not issue the ticket because the defendant became loud and angry when they requested the automobile registration. The state also argues that because the defendant was very loud and angry in addressing the officers, causing a crowd to gather, the officers decided to arrest her, and that this was the reason the infraction ticket was delayed. This scenario was not presented in the charges detailed in count one. In this case, the jury was given the information, which charged that the defendant interfered with an officer "by saying to Officer Ferri when requested to produce license, registration and insurance information during a motor vehicle stop, 'F_k you, I ain't giving you s_t, asshole . . . Because the jury was instructed to consider the offense charged in the information in reaching its verdict, the jury was not required to find that the defendant did not give the necessary documents to the officers or that the defendant's causing a disturbance was the cause of delay and that the officer intended to issue an infraction ticket and notified the defendant that the documents were necessary to do so. The dissent refers in footnote 2 to the prosecutor's statement to the court in the absence of the jury that the state intended to rely on other conduct than the verbal refusal to prove count one. This did not amend the information submitted to the jury and considered by it in returning its verdict as to that count. The jury verdict as to that count and count two, to the contrary, reflects that the jury considered the conduct set forth in the counts submitted for consideration and not some other conduct under different considerations. We accordingly reverse the defendant's conviction on count one. The second count charged that the defendant interfered with the performance of the officers' duties "by running from Ferri and fleeing on foot across North Avenue and entering the driver's side of an unidentified green vehicle which left the scene at a high rate of speed, after being instructed by Ferri not to leave the scene. The state argues that the defendant's leaving the scene to bring her brother to a hospital intentionally hindered the officers in issuing the ticket for the motor vehicle infraction and in arresting her for breach of the peace and interfering with a police officer. The state points to Fern's testimony that, prior to her leaving, he told the defendant to remain at the scene. Sherback testified that the defendant was not told that she was free to leave because the officers intended to issue a ticket for the motor vehicle infraction and arrest her for breach of the peace. Sherback later clarified his testimony that the defendant was asked to return from the hospital to be placed under arrest. There was no evidence, however, that the officers informed the defendant they intended to arrest her for criminal offenses or that she needed to remain to be given the infraction ticket. As to the infraction ticket, the state presented no evidence as to the procedure to be followed in issuing an infraction ticket. As charged in the information, the second count did not require the jury to find that the defendant was informed that she was to be arrested, that she must remain to be issued an infraction ticket or that she knew of these circumstances. The jury's verdict as to count two again reflects that the jury considered the conduct set forth in that count for consideration and not some other conduct or different circumstances. In this case, there is no evidence that the defendant fled the scene to avoid discovery or apprehension, but rather she brought her injured brother to a hospital and informed the officers of her intention. The officers testified that they knew the defendant was going to a hospital. Our Penal Code provides that one acts intentionally when his conscious objective is to cause such a result. Athough necessity as a defense was not raised at trial, the defendant's conduct in openly going to a hospital and leaving her mother and her automobile behind with the police are circumstances that render evidence of the defendant's conduct insufficient to support a reasonable finding that the defendant intentionally sought to delay the officer's efforts to issue her an infraction ticket. Here, the state argues that the defendant's flight supports her conviction. The state cites State v. Scott, 270 Conn. 92, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005), for the principle that an innocent explanation for flight does not prohibit evidence of flight or a consciousness of guilt instruction if there is evidence that would reasonably support a finding of flight as consciousness of guilt. In Scott, our Supreme Court found such evidence where the defendant did not inform the police of his whereabouts and of his intention to leave when he knew that he was about to be arrested. Id., 106. Athough flight as consciousness of guilt and flight as intentional interference with an officer are distinct issues, the principle that there must be sufficient evidence that supports a finding of culpable flight applies to both. As to the performance of their duties, it was, as Gudauskas and Ludan testified, the first responsibility of the police to make medical assistance available to accident victims. In light of these unusual and particular circumstances, we conclude that the defendant's conviction as to count two was not supported by the evidence. Rather than interfering with the primary duty of the police, the defendant was carrying it out. As a corollary of their duty, the police were required to assist rather than hamper the accident victim in receiving medical care. Regarding the immediate issuance of the infraction ticket, that duty of the police is secondary to the primary goal in this case. The jury reasonably could not find the required core criminal conduct in these circumstances. Accordingly, we reverse the defendant's conviction. The judgment is reversed and the case is remanded with direction to render judgment of not guilty. In this opinion, HARPER, J., concurred. General Statutes § 53a-167a (a) provides: "Aperson is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer or firefighter in the performance of such peace officer's or firefighter's duties." The trial court granted the defendant's motion for judgment of acquittal on one count of breach of the peace at the close of the state's case. The application of this rule is complicated by the amended information, which charged the defendant in two counts, each of which detailed the specific manner by which the defendant was charged with violating § 53a-167a, and set forth the essential facts and the particulars of the offenses. As to footnote 3 of the dissent, the defendant's mother was upset because of her son's injuries, lack of medical attention and the police interaction with the defendant. The mother exchanged car keys with the defendant and asked the defendant to bring her son to the hospital in the mother's car. Having blocked the father's car with their cruiser, the officers had the defendant's car towed from the scene. The mother and father arrived at the emergency room immediately behind the officers. The court did not charge the jury as to resisting an officer. The state's evidence as to count one was that the defendant stated she would not give them any documents, that she was bringing her injured brother to a hospital and that they were not going to stop her. As to count two, the state presented evidence that, despite the officer's instruction to remain, the defendant immediately left to bring her brother to a hospital. The two offenses charged arguably constitute in reality but one continuous offense instead of two separate and distinct offenses. It has long been our law that the prosecutor cannot divide a continuing crime into bits and prosecute separately for each. See United States v. Chagra, 653 F.2d 26, 29 (1st Cir. 1981), cert. denied, 455 U.S. 907, 102 S. Ct. 1252, 71 L. Ed. 2d 445 (1982), citing Ex parte Snow, 120 U.S. 274, 7 S. Ct. 556, 30 L. Ed. 658 (1887); see also United States v. Ansaldi, 372 F.3d 118, 125, n.3 (2d Cir.), cert. denied, 543 U.S. 949, 125 S. Ct. 364, 160 L. Ed. 2d 266, cert. denied sub nom. Gates v. United States, 543 U.S. 960, 125 S. Ct. 430, 160 L. Ed. 2d 324 (2004). In its brief, the state argues that the defendant's claim of legal justification is not a valid defense to the crimes charged. We disagree with this statement. In State v. Messier, 19 Conn. App. 432, 438, 562 A.2d 1138 (1989), we recognized the defense of necessity, not as negating intent, but because "the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law." (Internal quotation marks omitted.) Id., 438. There is law that "there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value that makes it inappropriate and unjust to apply the usual criminal rule." (Internal quotation marks omitted.) Id., 437. The state also argues that the brother was not injured and had earlier refused medical attention. There was undisputed evidence, however, that he struck his head on the steering wheel when his car was struck twice and was developing a migraine headache when the defendant saw him. We note that the prosecutor in summation stated that the issuance of this infraction ticket "might seem frivolous to some people." We therefore do not reach the defendant's argument that it was improper to give an instruction as to consciousness of guilt.

Opinion HARPER, J. The defendant, Gregory Gaymon, appeals from the judgment of the trial court revoking his probation. The defendant claims that (1) the court improperly interpreted a special condition of his probation, (2) he did not have fair notice of the conduct proscribed by a special condition of his probation, and (3) the evidence did not support the court's finding that he violated a special condition of his probation. We affirm the judgment of the trial court. In May, 1998, following a guilty plea, the defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) for stabbing the victim, who he subsequently married. The court sentenced the defendant to a fifteen year term of imprisonment, suspended after five years served, and five years of probation. One of the special conditions of the defendant's probation was "no violence toward victim." On March 11, 2004, the defendant was arrested and charged with violating that special condition. After conducting an evidentiary hearing, the court deemed credible a statement that Linda Gaymon, the victim and the defendant's wife, made to the defendant's probation officer on March 8, 2004. The statement read: "I have asked [the defendant] several times to leave my apartment. I don't need or want him there. He said he's not going to leave [and] that I will have to call the police to get him out. He said if I don't stop telling him to leave I am going to make him do something to me. I feel that this is a threat that he will hit or harm me in some way. I am afraid for my safety." In concluding that the defendant violated the special condition of "no violence toward victim," the court relied on the definition of "family violence" set forth in General Statutes § 46b-38a (1). The court found that the defendant's threat, when viewed in light of the defendant's prior conviction for stabbing Linda Gay-mon, constituted an act of threatened violence that created an imminent fear of harm, injury or assault. The court noted that the defendant "ha[d] not stopped his victimization of Mrs. Gaymon" and that she had reason to expect violence from the defendant and to fear for her safety. The court thereafter found that the beneficial purposes of the defendant's probation were no longer being served and revoked the defendant's probation, sentencing the defendant to a ten year term of imprisonment, suspended after five years served, and three years of probation. This appeal followed. I The defendant first claims that the court improperly interpreted the special condition of his probation that stated "no violence toward victim" by interpreting "violence" in accordance with the definition of "family violence" set forth in § 46b-38a (1). The defendant claims that violence requires the use of physical force to cause injury, and that its definition is, therefore, much more narrow than the definition of "family violence" codified in § 46b-38a (1). We disagree. The interpretation of a condition of probation "presents a question of law, over which our review is de novo." State v. Faraday, 268 Conn. 174, 191, 842 A.2d 567 (2004). The defendant argues that we should afford the word "violence" its usual and ordinary meaning. We agree. As the defendant suggests, violence does encompass the exertion of "rough or injurious physical force, action or treatment." Random House Webster's Unabridged Dictionary (2d Ed. 2001). Violence, however, likewise is defined as "a violent act or proceeding" or "rough or immoderate vehemence, as of feeling or language . . . ." Id. Violence is also defined as "[a]n act or instance of violent action or behavior" and "[v]ehe-mence of feeling or expression." American Heritage Dictionary of the English Language (1981). Violent is defined as the display of "undue mental or emotional force." Id. We are persuaded that the ordinary meaning of violence is not limited to the use of injurious physical force, as the defendant suggests, but encompasses the use of vehement or forceful language or expression, especially the utterance of threats to cause physical injury when there is a likelihood that physical violence will occur. General Statutes § 46b-38a (1) provides: " 'Family violence' means an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical abuse, bodily injury or assault between family members or household members. Verbal abuse or argument shall not constitute family violence unless there is present danger and the likelihood that physical violence will occur." The court's reliance on that statutory provision was appropriate because it describes certain types of violence, including the use of vehement or forceful language, such as that which threatens physical injury. The definition of "family violence" in § 46b-38a (1) is not materially inconsistent with the customary meaning of violence in that "family violence" is a type of violence. Further, we deem the court's reliance on § 46b-38a (1) to be reasonable under the facts of this case. The special condition of probation at issue was imposed following the defendant's conviction for stabbing the victim, who was his wife at the time of the present proceeding. It was not unreasonable for the court to seek guidance from a legislative enactment concerning violence between family members in determining whether the defendant committed an act of violence against his wife. II The defendant next claims that he did not have fair notice that his behavior would constitute violence toward the victim. We disagree. The defendant does not dispute that he had actual notice of the special conditions of his probation. He argues that he lacked notice that the court would rely on the definition of "family violence" in § 46b-38a (1) in interpreting the special condition of "no violence toward victim." The issue of whether a condition of probation affords a probationer fair notice of proscribed conduct is an issue of law that we review de novo. State v. Faraday, supra, 268 Conn. 191. "Due process requires, at a minimum, that an individual receive notice of probation conditions and an opportunity to be heard. . . . The purpose of notice of conditions is to ensure that the probationer understands the precise terms of his obligations and that he risks termination of his probation if he fails to meet those obligations. "Written conditions of probation formally imposed by a court order usually provide notice sufficient to satisfy due process. Therefore, where there is an alleged violation of an explicit condition, it would be difficult for a defendant to claim successfully that he was denied due process on the ground of no fair notice. Obviously, a finding of actual notice impliedly includes a finding of fair notice." (Internal quotation marks omitted.) State v. Boseman, 87 Conn. App. 9, 17, 863 A.2d 704 (2004), cert. denied, 272 Conn. 923, 867 A.2d 838 (2005). As we concluded in part I, the court's reliance on § 46b-38a (1) was not improper because family violence is a type of violence. The defendant had actual notice that he was not to engage in violence toward the victim. The word violence defines a category of conduct that can be, for example, verbal or physical in nature. "[F]air warning [of a probation order] is not to be confused with the fullest, or most pertinacious, warning imaginable. Conditions of probation do not have to be cast in letters six feet high, or to describe every possible permutation, or to spell out every last, self-evident [detail. . . . Conditions] of probation may afford fair warning even if they are not precise to the point of pedantry. In short, conditions of probation can be written — and must be read — in a commonsense way." (Internal quotation marks omitted.) United States v. Balon, 384 F.3d 38, 43 (2d Cir. 2004), quoting United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994). The court's use of the word violence was sufficient to put the defendant on notice that the type of threatening behavior that he engaged in toward the victim was prohibited. The defendant's claim, therefore, fails. Ill Finally, the defendant argues that even if the court properly relied on the definition of family violence, the evidence did not support a finding that family violence occurred because there was no evidence that the victim was in fear of imminent physical harm, bodily injury or assault. We disagree. "[T]o support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. . In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court's initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. . A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . In making this determination, every reasonable presumption must be given in favor of the trial court's ruling." (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002). The court had before it Linda Gaymon's statement, in which she represented that the defendant had threatened to "hit or harm [her] in some way." She represented: "I am afraid for my safety." The court deemed the statement to be credible after finding that the statement was notarized, was in Linda Gaymon's handwriting and was not made in the defendant's presence, and that Linda Gaymon had appeared in person at the office of adult probation to give the statement to the defendant's probation officer. Those findings are supported by the evidence. The court also heard testimony from the defendant's probation officer that when Linda Gay-mon arrived unannounced at his office on March 8, 2003, she told him that "she wanted to give a statement indicating that the defendant had been violent and harassing toward her." The defendant's probation officer testified that she had made the written statement after he informed her of the consequences of her statement and that she had indicated that she understood those consequences. On the basis of that evidence, as well as the defendant's prior criminal conduct toward her, it was reasonable for the court to find that the defendant's conduct caused a fear of imminent physical harm, bodily injury or assault and that her statement and conduct reflected that fear of imminent harm. The judgment is affirmed. In this opinion the other judges concurred. Courts typically find the common understanding of words and phrases to be expressed in a dictionary. See State v. Love, 246 Conn. 402, 408, 717 A.2d 670 (1998); State v. McCoy, 91 Conn. App. 1, 4, 879 A.2d 534, cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005).

Opinion PER CURIAM. The petitioner, Jancis L. Fuller, appeals following the habeas court's denial of her petition for certification to appeal from the judgment dismissing her amended petition for a writ of habeas corpus. We dismiss the appeal. The defendant was convicted of two counts of attempt to commit assault in the first degree and one count of carrying a pistol or revolver without a permit. This court affirmed the judgment of conviction. State v. Fuller, 56 Conn. App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). In 1998, the petitioner, alleging ineffective assistance of counsel, filed a petition for a writ of habeas corpus. The court dismissed the petition on the ground of the petitioner's failure to prosecute the action with reasonable diligence. This court affirmed the dismissal. Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817 A.2d 1274, cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003). In 2004, the petitioner filed the present petition for a writ of habeas corpus. On June 10, 2004, the respondent commissioner of correction filed a motion to dismiss the action on the ground that the petitioner had abused the writ. The respondent argued that the petitioner had reasserted legal claims that she raised in the first petition, changing only the factual basis of the claims, and that she could have raised these claims in her first petition. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991) ("petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice"). On August 18, 2004, the court held a hearing on the respondent's motion to dismiss. The petitioner presented ample evidence and argument in opposition to the respondent's motion. In an oral ruling, the court concluded that the petition essentially set forth the same claims, "in a reformulated or reworded fashion," as those that appeared in the petitioner's prior petition. The court further concluded that to the extent that the petition contained newly presented claims, the petitioner had had a full and fair opportunity to present those claims in her prior petition for a writ of habeas corpus. The court dismissed the petition on the grounds of abuse of the writ and procedural default. The court subsequently denied the petition for certification to appeal. The petitioner bears the burden of demonstrating that the court abused its discretion in denying her petition for certification to appeal. The petitioner claims that she was entitled to a hearing on the merits for all of the claims raised in her petition for a writ of habeas corpus and that the court improperly granted the respondent's motion to dismiss her petition. We carefully have reviewed the record, the court's ruling and the briefs submitted by the parties. The petitioner has not demonstrated that the issues raised with regard to the court's dismissal of her petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). Having failed to satisfy any of those criteria, the petitioner has failed to demonstrate that the court's denial of her petition for certification to appeal reflects an abuse of discretion. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). The appeal is dismissed. he petitioner appeared pro se before the habeas court and before this court. The court also concluded that to the extent that the petitioner had raised a claim of actual innocence, she failed to substantiate her claim with newly discovered evidence and, to the extent that she had challenged the legality of her sentence, that she was barred from raising such a claim for the first time in the present action.

Opinion LAVERY, C. J. The defendant, William Loughlin, Jr., appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Sharon Loughlin, and claims that certain of the court's financial orders were improper. He argues that the court improperly (1) relied on the length of the parties' entire relationship, rather than that of the marriage at issue, in violation of General Statutes § 46b-81 and 46b-82, (2) considered the needs of the parties' adult children and a grandchild when fashioning its award of alimony to the plaintiff, and (3) ordered that the defendant pay a portion of the plaintiffs attorney's fees. We agree that the court relied on improper considerations in crafting its financial orders and, accordingly, reverse the judgment. The following facts and procedural history are relevant. The parties initially were married from 1981 to 1992. Their three children were bom during that marriage. Within a year or so of the 1992 divorce, the parties resumed cohabiting. In 1998, they remarried. The judgment of dissolution that is the subject of this appeal was rendered in 2004. At that time, the parties' children were twenty-two, twenty and sixteen years old. The middle child, who was unmarried, recently had become a mother. During the period of time that the parties were cohabiting but unmarried, the plaintiff attended nursing school, receiving an associate's degree in 1996. Thereafter, she worked in various nursing positions. The defendant also pursued his education at that time, completing a bachelor's degree primarily between 1993 and 1998 and, subsequently, a master's degree. He began working at Sikorsky Aircraft Corporation in 1986 and remained with that employer through the time of the second divorce. In 2000, the parties purchased a house for $315,000. In 2001, the defendant accepted an assignment from his employer that required him to live in Turkey. After his departure, the parties grew apart and, in October, 2003, the plaintiff filed for divorce. A hearing was held on June 9 and 10, 2004, at which each of the parties testified. At the time of the hearing, the plaintiff was forty years old and the defendant was forty-three. The plaintiffs annual full-time salary was determined to be $52,676 and the defendant's, $153,495. The parties were in partial agreement as to the terms of a proposed property division and financial orders. They disagreed, however, as to the specifics of an alimony award, particularly as to its term, and to the distribution of the marital residence and the defendant's retirement accounts. The defendant was willing to pay alimony for two and one-half years, while the plaintiff requested a permanent award. With respect to the residence, the defendant was willing to transfer his interest therein to the plaintiff in exchange for $60,500. As to his retirement accounts, he submitted that only the amounts accrued during the second marriage were at issue and requested that they be awarded to him in full. The plaintiff requested the residence outright and 50 percent of the entire value of the defendant's retirement accounts. The court rendered an oral decision at the conclusion of the hearing and, thereafter, reduced its judgment to writing. Pursuant to the court's judgment, the parties were awarded joint legal custody of their one minor child, the sixteen year old son. The son's primary residence was to be with the plaintiff, and the defendant was ordered to pay $272 weekly in child support and provide for the son's health insurance. With respect to the distribution of the parties' assets and liabilities, the defendant was ordered to transfer his interest in the marital home, and all of its contents, to the plaintiff, and the defendant was awarded the entirety of his 401 (k) retirement account. The court considered the equity in the home and the value of the defendant's 401 (k) to be roughly equal. The defendant was to assume responsibility for payment of the elder daughter's student loan and to pay for the entirety of the son's college education. The parties were to divide equally the expenses of the younger daughter's attendance at a community college. The defendant also was to repay the younger daughter's automobile loan. The defendant additionally was to convey to the plaintiff, by way of a qualified domestic relations order, 50 percent of the current value of his pension, which had accrued over the whole of his employment at Sikorsky Aircraft Corporation. Finally, the court ordered him to pay $7500 of the plaintiffs attorney's fees, which totaled $10,000. The plaintiff was to be responsible for her own car- loan and a credit card account. With respect to alimony, the court ordered the defendant to pay the plaintiff $600 weekly for twelve years. The court explained that it set the alimony rate at an amount that essentially would cover the mortgage payment on the marital home and set its term for the amount of time left on the mortgage. It specified that the duration of the alimony would be nonmodifiable by either party. The court further ordered the defendant to obtain life insurance, initially naming the children as beneficiaries and then, once the children reached the age of twenty-three, naming the plaintiff as beneficiary for the duration of the alimony obligation and in a declining amount equal to the remaining alimony payments. The defendant thereafter filed motions to reargue and for articulation. In his motion to reargue, he took issue with the term of the alimony award, his failure to receive any interest in the marital residence, the awarding of one half of his pension to the plaintiff and the requirement that he pay a portion of her attorney's fees. A hearing on the motions was held on June 29, 2004, at which the court further articulated some of the reasoning underlying its orders. The court also issued a written articulation on September 30, 2004. This appeal followed. At the outset, we note the standard of review governing the defendant's claims. "We review financial awards in dissolution actions under an abuse of discretion standard. . In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . In making those determinations, we allow every reasonable presumption . in favor of the correctness of [the trial court's] action." (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 82 Conn. App. 768, 772, 847 A.2d 1017 (2004), aff'd, 275 Conn. 348, 880 A.2d 872 (2005). To the extent that the defendant's claims require us to interpret the statutes governing dissolution of marriage, however, our review is plenary. See Robinson v. Robinson, 86 Conn. App. 719, 724, 862 A.2d 326 (2004). We now turn to the issues on appeal. Additional facts will be provided where pertinent. I The defendant claims first that, in fashioning its financial orders, the court improperly relied on the total length of the parties' relationship rather than on the length of their second marriage only, in violation of § 46b-81 and 46b-82. We agree. A trial court in a dissolution action, when dividing the parties' property and determining whether, or how much of, an alimony award is warranted, is guided by factors enumerated in § 46b-81 and 46b-82, respectively. Both statutes provide for the court's consideration of "the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . ." (Emphasis added.) General Statutes § 46b-82 (a); see also General Statutes § 46b-81 (c). Section 46b-81 further directs the court, when effecting a property distribution, to consider the parties' liabilities, their opportunities for future acquisition of capital assets and income and their contributions toward their respective estates. General Statutes § 46-81 (c). Section 46b-82 provides additionally that the court, when considering alimony, should take into account the orders it made pursuant to § 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment. General Statutes § 46b-82 (a). For both statutes, however, the specified criteria are not exhaustive, and the court properly may consider other equitable factors when crafting its property distribution and alimony orders. See Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982); Demartino v. Demartino, 79 Conn. App. 488, 500, 830 A.2d 394 (2003). The defendant claims that the court here, in fashioning its orders, improperly relied on the total length of the parties' relationship rather than on the "length of the marriage" as contemplated by the statutes. According to the defendant, the total length of the parties' relationship was "a critical factor" underlying the court's decision to award twelve years of alimony and that consideration was not one authorized by § 46b-81 or 46b-82. He argues that the court's approach "effectively recognize[d] cohabitation as a marital status." The following additional facts and procedural history are pertinent to the claim. When testifying at the June 9, 2004 hearing, the plaintiff stated that during the time the parties lived together but were not married, she and the defendant lived like husband and wife. She testified that she thought the court should look at the marriage as longer than six years because she and the defendant had "been together for almost twenty-three years." According to the plaintiff, during the six year period between the two marriages, "even though [she and the defendant] weren't remarried, [they] acted as if [they] were married." The court apparently found this testimony persuasive, as evidenced by remarks it made at several junctures in the proceedings. To begin, it prefaced its oral pronouncement of the alimony award with the following comment: "Well, first of all, obviously we go back to 1981 in some respects . . . it's a long-term relationship which maybe . . . should have been severed permanently but it wasn't, and here we are back again." Thereafter, at the June 29, 2004 hearing on the defendant's motions to reargue and for articulation, the court explained that in fashioning its orders, it had "considered the totality of their relationships." It elaborated further that it "saw [the plaintiff] from sixteen years old [and that she and the defendant had] stayed together all those years." The court reiterated, "It goes back to sixteen years old, unfortunately. Right." Finally, in its September 30, 2004 written articulation, the court noted that "[t]he plaintiff helped support the family while the defendant earned a bachelor's [degree] and master's degree at night," events that occurred in substantial part during the parties' period of unmarried cohabitation. It again stated explicitly that it "considered the totality of the relationship between the parties." The court noted that "[t]he plaintiff had devoted almost twenty-four years to the relationship" and stated in conclusion that it "did not feel constrained in its decision by the length of the second marriage, which lasted from [1998] to 2004. . . . The plaintiff was awarded alimony for twelve years nonmodifiable as to the term so that she would be able to live in the family home until the mortgage [loan] was paid in full." It is clear from the foregoing comments that the court, in fashioning its financial orders, considered not only the six year marriage, which was the subject of the current dissolution action, but also the parties' six years of unmarried cohabitation and, further, their initial eleven year marriage, the dissolution of which was adjudicated in a previous action. To begin, pursuant to the unambiguous language employed in § 46b-81 (c) and 46b-82 (a), the statutory factor of "length of the marriage" contemplates only the marriage presently being dissolved. "Marriage" repeatedly is referred to in the singular and, moreover, it is unlikely that the drafters of the statutes, when compiling lists of considerations for courts to weigh, had in mind the unusual circumstance of serial marriages between the same parties. As to cohabitation, it cannot reasonably be argued that that living arrangement is encompassed within the plain meaning of "marriage." Because "prior marriages of the parties" and "cohabitation prior to marriage" are not factors specifically enumerated in § 46b-82 (a), the question thus presented is whether the court here properly took into account the parties' entire relationship history as an additional equitable consideration. See Robinson v. Robinson, supra, 187 Conn. 72; Demartino v. Demartino, supra, 79 Conn. App. 500. When the parties first were divorced in 1992, they reassumed the legal status of two single people, regardless of their intentions. See General Statutes 46b-67 (b) ("decree of . . . dissolution shall give the parties the status of unmarried persons"); see also Hames v. Hames, 163 Conn. 588, 594, 316 A.2d 379 (1972) ("[i]n the eyes of the law . a divorced pair could be but two single persons desirous of acquiring marital status"). The fact that they soon recommenced living together did nothing to alter that status. With respect to the effect of cohabitation by those who hold themselves out as husband and wife, the law of this jurisdiction is clear. "Although other jurisdictions may recognize common-law marriage or accord legal consequences to informal marriage relationships, Connecticut definitely does not. . It follows that although two persons cohabit and conduct themselves as a married couple, our law neither grants to nor imposes upon them marital status." (Citations omitted.) McAnerney v. McAnerney, 165 Conn. 277, 285, 334 A.2d 437 (1973); see also Hames v. Hames, supra, 163 Conn. 592-93, 597; State ex rel. Felson v. Allen, 129 Conn. 427, 432, 29 A.2d 306 (1942). "The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit outside the marital relation ship." Boland v. Catalano, 202 Conn. 333, 339, 521 A.2d 142 (1987). Consistent with those principles, property and support disputes between unmarried cohabitants must be resolved by means outside the statutory scheme for dissolution of marriages, typically, under general contract principles. See, e.g., id.; Herring v. Daniels, 70 Conn. App. 649, 805 A.2d 718 (2002); see also 6 A. Rutkin, Family Law & Practice (2005) § 65.03 [1] [a] ("[C]ohabitation in and of itself does not create any support obligation for either party. Any 'support' obligation must arise from the terms of a cohabitation agreement."). The property rights of cohabitants "are not based on the equitable distribution provisions of the marriage and divorce laws because the judicial recognition of mutual property rights between unmarried cohabitants would violate the policy of the state to strengthen and preserve the integrity of marriage, as demonstrated by its abolition of common-law marriage." 24 Am. Jur. 2d 644-45, Divorce & Separation § 494 (1998). In Gurliacci v. Mayer, 218 Conn. 531, 562-64, 590 A.2d 914 (1991), our Supreme Court, like courts in most other jurisdictions, refused to recognize a husband's lost consortium claim, which was based on an injury to his wife that occurred prior to the couple's marriage. The court explained the rationale for the marital relation requirement, noting that it "form[ed] the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance." Id., 564. The requisite level of commitment thus could not be presumed from cohabitation alone. In Eisenbaum v. Eisenbaum, 44 Conn. App. 605, 691 A.2d 25 (1997), we had occasion to address indirectly the question of whether the statutory authorization for alimony was applicable to cohabitants with a history of marriage. In Eisenbaum, a previously married and divorced couple resumed cohabitating and, thereafter, had two children together. Id., 606. The parties then separated, and the plaintiff brought an action seeking child support and custody. Id., 607. The defendant appealed from a pendente lite order requiring that he pay certain household expenses, arguing that the order was not for child support but, rather, disguised alimony. Id., 607-608. This court upheld the order, but only in part. Specifically, we sustained the order only to the extent that the trial court's characterization thereof, as "in kind child support," was consistent with the evidence. With respect to a credit card bill, we concluded that the court had no authority to order its payment under the guise of child support, because there was no evidence that such payment was necessary for the maintenance of the children. Id., 609. Implicit in that holding was a rejection of the notion that cohabitants who were once married to each other and who later separate may be held responsible for, or entitled to, payments in the nature of spousal support. The foregoing cases evince a policy of Connecticut's courts to draw a clear distinction between marriage and mere cohabitation, even when that cohabitation was preceded by, or ultimately led to, a marital relationship. Pursuant to that policy, parties who have made the formal commitment of marriage are afforded greater rights and protections than those who choose to reside together informally. Given that policy, it would be incongruous to conclude that a court, when entering financial orders pursuant to § 46b-81 and 46b-82, may take into account a period of premarital cohabitation as an additional equitable consideration. Accordingly, the court's consideration here of the parties' six years of cohabitation was improper. We note that courts of our sister states, in like contexts, have concluded similarly. See, e.g., In re Marriage of Bukaty, 180 Cal. App. 3d 143, 149, 225 Cal. Rptr. 492 (1986) (concluding that court in making limited support award properly refused to consider parties' lengthy period of premarital cohabitation); Murray v. Murray, 374 So. 2d 622, 623 (Fla. App. 1979) (noting that marriage was of short duration and that parties' cohabitation for several years prior did not provide proper basis for award of rehabilitative alimony); In re Marriage of Goldstein, 97 Ill. App. 3d 1023, 1028, 423 N.E.2d 1201 (1981) (holding evidence of parties' premarital cohabitation, including showing wife's support of husband while he attained medical degree, properly excluded in dissolution proceedings); but see In re Matter of Long, 159 Or. App. 471, 475, 978 P.2d 410 (1999) (courts in some cases may consider entire length of relationship, including period of cohabitation preceding marriage), review denied, 329 Or. 589, 994 P.2d 130 (2000). The question of whether the court, in shaping its financial orders, properly considered the parties' first marriage is a closer one. We conclude, however, that consideration of the earlier marriage in the parties' second dissolution action also was improper. First, as previously explained, the plain language of § 46b-81(c) and 46b-82 (a) directs a court in a dissolution action to consider the length of only the marriage presently being dissolved and does not contemplate the consideration of any previous marital relations between the parties. Second, the parties' first marriage already had been the subject of an earlier dissolution action, and allowing the matter litigated therein to be revisited twelve years later would run counter to our policy favoring "finality of litigation and stability of judgments . . . Billington v. Billington, 220 Conn. 212, 222, 595 A.2d 1377 (1991); cf. 24 Am. Jur. 2d 572-73, supra, § 411 ("The doctrine [of res judicata] is fully applicable to judgments and decrees entered in an action for a divorce . Thus, a final decree of divorce is res judicata with respect to all issues which were, or could have been, litigated in the proceeding."). Finally, we find guidance in decisions of our sister courts declining, in dissolution matters involving serial marriages, to view those marriages in the aggregate. See In re Marriage of Bukaty, supra, 180 Cal. App. 3d 147-50 (deciding that court in parties' second divorce action properly refused to consider parties' first marriage in weighing statutory factor of duration of marriage); Wooldridge v. Wooldridge, 791 A.2d 107, 108 (Me. 2002) (concluding that remarriage of parties did not reestablish as marital property what had been awarded to parties separately in first divorce); Hildebrand v. Hildebrand, 239 Neb. 605, 613-14, 477 N.W.2d 1 (1991) (holding that upon parties' second divorce, wife entitled only to portion of husband's pension that accrued during second marriage); Henderson v. Henderson, 764 P.2d 156, 159 (Okla. 1988) (concluding that court, in determining property distribution in parties' third divorce, properly refused to view their relationship as one continuous marriage from date of first marriage). On the basis of the foregoing analysis, we conclude that the court improperly considered the length of the parties' entire relationship, rather than the marriage at issue, in crafting its financial orders. II The defendant argues next that in fashioning the award of alimony, the court improperly relied on the presence of the parties' adult children and grandchild in the house, which the alimony was designed to secure to the plaintiff. According to the defendant, the court effectively ordered the payment of unauthorized, post-majority child support. Again, we agree. The following additional facts are relevant to the claim. When the plaintiff testified on June 9, 2004, she explained why she thought it fair that she be awarded the marital residence. According to the plaintiff, "I need a place for the kids and I to live. They miss — they look forward — [the elder daughter] looks forward to coming home. I give them a sense of security and a place of— a place to come to. They — that's what they've expressed to me . . . ." On cross-examination, she reiterated her belief that it was fair for her to get the house and, when the defendant's counsel then noted that two of the children were adults, she replied, "Yes, they're adults, but they're still my children." During their closing arguments, counsel for the parties addressed the matter of what would be a proper term for an alimony award. At one point, the court suggested to the plaintiffs counsel, "Why don't you argue [that] obviously the house is a help for the children. I guess I'm telling you too many things. . . . But would — how—would she be able to handle the house if she only got six years of alimony?" When the defendant's counsel argued that alimony should be limited, noting that the defendant would have no house or furnishings when he returned from Turkey, the court responded that "I also have to think about three children." When the defendant's counsel observed that the two older children were twenty and twenty-two, and that the only minor child would be graduating soon from high school, the court replied, "They still need a place, though," and remarked further that the younger daughter "has special needs right now." When setting the amount of alimony, the court made it clear that its decision was based on the amount of the mortgage payments and the time left on the mortgage loan. See footnote 17. In making some closing comments to the parties, the court stated that the plaintiff, as a result of the property distribution and financial orders, "has a house for the kids to be at, and that's important. No matter how old they are, they have to have a house to come home to." At the September 29, 2004 hearing on the defendant's motions to reargue and for articulation, the court explained further that the plaintiff "still has a family in need" and that "the children are still being educated," and it indicated that it had taken those considerations into account when fashioning the award. In its September 30, 2004 written articulation, the court stated that "[t]he mortgage on the family home had an additional twelve years, which the plaintiff could ill afford to pay on her own salary. Also, this family home was the residence of the minor child, two adult children and a grandchild." According to the defendant, the court's articulated rationale for the alimony order demonstrates that alimony was awarded for an improper purpose, namely, for postmajority child support in the form of housing. He argues that the court's reliance on the needs of his adult children and grandchild was an abuse of discretion. We agree. We start with general principles. "Alimony is payment for support of a former spouse and child support is payment for support of a minor child." Wolfburg v. Wolfburg, 27 Conn. App. 396, 402, 606 A.2d 48 (1992); see also 24A Am. Jur. 2d, Divorce & Separation § 608 (1998) ("sole object of alimony is the provision of food, clothing, habitation, and other necessaries for the support of a spouse" [emphasis added]). "[T]he two must be kept separate when the court determines the appropriate awards as to each . . . ." (Citation omitted.) Wolfburg v. Wolfburg, supra, 402. A reviewing court is not necessarily bound by the trial court's characterization of a financial order in a dissolution action when evaluating the order's propriety. See, e.g., Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983) (concluding that disproportionately high child support award was, in reality, disguised alimony for custodial parent, who was supporting her adult daughter in addition to minor child for whom support had been ordered). As a general matter, "[t]he obligation of a parent to support a child terminates when the child attains the age of majority, which, in this state, is eighteen. General Statutes § 1-1d; Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25 (1979); Sillman v. Sillman, 168 Conn. 144, 358 A.2d 150 (1975). The statutory grant of jurisdiction to the Superior Court in matters relating to child support incident to the dissolution of a marriage likewise expressly circumscribes the court's jurisdiction to orders involving only minor children." (Internal quotation marks omitted.) Cariseo v. Cariseo, 190 Conn. 141, 142-43, 459 A.2d 523 (1983). Additional statutory provisions may apply, however, to modify this general rule. Pursuant to General Statutes § 46b-66 (a), a court in a dissolution proceeding may enter an order providing for postmajority child support when the parties have agreed in writing to the terms of that order. Under a more recently enacted provision, upon motion of a party and after making certain subsidiary findings, a court may issue an educational support order for college age children. See General Statutes § 46b-56c (b), (c), (e); see also Robinson v. Robinson, supra, 86 Conn. App. 725. Such an order may require one or both parties to a dissolution action to provide support to a child, until the child reaches the age of twenty-three, for certain enumerated educational expenses. In the absence of a statute or agreement providing for postmajority assistance, however, a parent ordinarily is under no legal obligation to support an adult child. We note here that because the court did not make its orders on the basis of a written agreement of the parties, nor did it adhere to the statutory procedure dictated for an educational support order; see footnotes 24 and 25; General Statutes § 46b-66 (a) and 46b-56c are not implicated. Under certain circumstances, the economic impact on an alimony recipient of caring for a minor child may be a proper consideration for the court when setting the term of alimony. Wolfburg v. Wolfburg, supra, 27 Conn. App. 396. In Hopfer v. Hopfer, 59 Conn. App. 452, 757 A.2d 673 (2000), however, we held that the court, in calculating an alimony award, properly excluded any evidence regarding the postmajority expenses of the parties' two children. Id., 460-61. We rejected the recipient's argument that the § 46b-82 factor of "station" "refers to the lifestyle or standard of living of the parties during the marriage, including their commensurate expectations for the education and advancement of their children." (Emphasis added.) Id., 461; see also 24A Am. Jur. 2d 218, supra, § 837 ("court may not order an increase in alimony based on the recipient spouse's need for funds to pay for a college education for the couple's postmajority-aged children . . . because to do so is an indirect method of compelling unwilling divorced parents to provide college costs for their capable adult children"). Relatedly, in Cariseo v. Cariseo, supra, 190 Conn. 141, an alimony recipient sought an upward modification based in part on her increased expenses, which she attributed partially to the circumstance that two of the parties' adult children were living with her and attending college. Id., 142. The trial court ordered the relief sought, reasoning that although the children "had attained their majority, the mother was still feeding them and providing a roof over their heads and . it was disproportionate to have her bear the burden of maintaining [them]." Id. Our Supreme Court reversed the court's order, holding that "financial obligations arising out of a parent's maintenance of adult children in the family home while they are attending college" was not a substantial change in circumstances on which a modification of alimony properly could be predicated. Id., 143. Although the factors underlying an' initial alimony award differ from the standard for a modification, the court's holding lends support to the notion that adult children's needs are not a proper basis for alimony payments. Our research of decisions in other jurisdictions has revealed several cases in which awards of spousal support were invalidated due to indications that they were intended to provide continuing assistance to adult children. In Lesko v. Lesko, 184 Mich. App. 395, 405, 457 N.W.2d 695 (1990), the Michigan Court of Appeals held that a trial court, when awarding alimony, improperly considered the recipient's voluntary assumption of the payment of living expenses for adult children residing with her, explaining that it was "declin[ing] to allow a court to order support for adult children through the back door by alimony where it cannot order it through the front door by child support." In Laporte v. Howell, 452 So. 2d 420 (La. App. 1984), the Court of Appeal of Louisiana affirmed an order terminating alimony payments where the recipient admitted that her expenses included substantial contributions to the support of two adult children. The court stated that "[t]he needs of major children should have no influence in determining a spouse's need for alimony." Id., 422. In Wobser v. Wobser, 91 App. Div. 2d 826, 458 N.Y.S.2d 113 (1982), the Appellate Division of the Supreme Court of New York held improper the award of exclusive possession of the marital home to the wife when the children residing there were grown. The court stated that the "husband should not be compelled to subsidize his adult children by providing living quarters for them." Id., 827; see also Thomas v. Thomas, 427 So. 2d 259, 260 (Fla. App. 1983) (holding award of exclusive possession of marital home while children attended college improper postmajority child support); Patterson v. Patterson, 288 S.C. 282, 286-87, 341 S.E.2d 819 (App. 1986) (same). Similar considerations apply to grandchildren, for whom their grandparents have no legal duty of support, even where the parent of the grandchild is still a minor. See 3 A. Rutkin, Family Law & Practice, supra, § 33.02 [3] [g]. In Nichols v. Nichols, 14 S.W.3d 630 (Mo. App. 2000), the Missouri Court of Appeals held that the expenses and care of the parties' grandchildren could not properly be considered in a trial court's determination of whether the spouse with whom the grandchildren resided was in need of maintenance. Id., 637-38. The court allowed that the payor spouse might have a moral responsibility toward his grandchildren but concluded that he was not legally responsible for their support. Id., 637; see also Baker v. Baker, 866 P.2d 540, 545-46 (Utah 1993) (holding similarly). Guided by the foregoing, we conclude that the court's award of alimony was improper because it was ordered on the basis of illegal considerations, specifically, on the needs of the parties' adult children and grandchild. The court's comments on the record and in its articulation indicate that the alimony award was meant to ensure that the plaintiff retain the marital home. Although it generally is acceptable for a court to set the term of time limited alimony to expire with some future event, such as the maturation of a mortgage loan; see Henin v. Henin, 26 Conn. App. 386, 392-93, 601 A.2d 550 (1992); the court here went much further by opining repeatedly that the reason the plaintiff ought to have the house, and whatever support was necessary to retain it, was the ongoing needs of her adult children, and grandchild, to have a place to live. The plaintiff suggests that even if this court should find error in the court's rulings, its judgment should remain intact because, due to the wide discretion afforded to a court in a dissolution action, any improper considerations were harmless. We are not convinced. "The defendant is entitled to relief from the court's improper rulings only if one or more of those rulings were harmful." Berry v. Berry, 88 Conn. App. 674, 678, 870 A.2d 1161 (2005). "To meet this burden in a civil case, the appellant must show that the ruling would likely affect the result." (Internal quotation marks omitted.) Tevolini v. Tevolini, 66 Conn. App. 16, 31, 783 A.2d 1157 (2001). We recognize that, as a general matter, a court may order alimony for whatever term it considers equitable and that the court enjoys broad leeway in this regard. Here, however, it is abundantly clear that the court, when weighing the statutory factors of the length of the marriage and the needs of the parties, relied heavily on considerations outside the statutory framework, namely, the length of the parties' entire relationship and the needs of their adult children and grandchild. Cf. id., 31 (court's improper exclusion of evidence pertaining to alimony recipient's health not harmless because health is material factor under § 46b-82). The court's repeated statements that those considerations underpinned its orders convinces us that, had it been clear to the court that its rationale was improper, the result likely would have differed. "We are acutely aware that trial courts have wide discretion to formulate remedies in domestic relations cases, and . . . [that] [t]he power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute . Nevertheless, when invoking principles of equity, a court must examine both the public policy implicated and the basic elements of fairness." (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 362, 880 A.2d 872 (2005). Here, the court's orders were contrary to the policy of Connecticut to treat marriage and cohabitation differently, and were unfair to the extent that they required the defendant to support his adult children absent statutory authorization or written agreement of the parties. "[W]hen a portion of the court's financial order is found to be flawed, we return the matter to the trial court for a new hearing on the ground that in marital dissolution jurisprudence, financial orders often are interwoven." (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 848, 882 A.2d 731 (2005). "The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Id. Accordingly, the judgment must be reversed except for the granting of the dissolution of marriage and the awarding of custody of the minor child. The judgment is reversed as to the property and financial awards only and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. The parties previously were married to one another and divorced. This case concerns the dissolution of their second marriage to each other. In light of our disposition of the defendant's first and second claims, which involve the court's orders regarding property distribution and alimony, we do not reach his third claim relating to attorney's fees. Because we conclude that remand of the case is necessary for a reconsideration of all financial orders, it is entirely possible that a different order as to attorney's fees will result. The eldest child, a daughter, was bom on January 1, 1982, the middle child, a daughter, on August 29, 1983, and the youngest child, a son, on December 4, 1987. The parties financed the purchase, in part, with a fifteen year mortgage loan. At the time of the dissolution proceedings, the monthly mortgage payments were approximately $2700. The parties stipulated that the house then was worth $390,000. Although the plaintiff at the time of trial was working thirty-two hours weekly, extra hours were available to her. The defendant's salary consisted of approximately $93,000 base pay plus various increases to which he was entitled for working abroad, as well as income imputed to him for his housing and other expenses paid by his employer while he was in Turkey. A copy of the transcript of the court's remarks was signed by the trial judge and submitted to this court on appeal as an oral decision. See Practice Book § 64-1 (a). The defendant was awarded the right to take the federal income tax exemption for the son. The plaintiff also was awarded the right to claim the mortgage interest and property tax deductions for federal income tax purposes. In the event of the defendant's death, the three children were to be named the beneficiaries of the 401 (k) death benefit until they reached the age of twenty-three. The plaintiffs affidavit valued the equity at $137,000, and the defendant's affidavit valued it at $161,761. The defendant's 401 (k) balance was $127,042. The student loan balance was approximately $35,500. The elder daughter recently had finished college and was planning to attend graduate school. The son was in his junior year of high school. The younger daughter had given birth two weeks prior to the hearing and was living with the plaintiff. The balance of the daughter's automobile loan was approximately $6700. At trial, the defendant agreed voluntarily to take responsibility for that loan, and for his children's educational debt and expenses as stated herein. The present value of the pension at the time of the hearing was $92,047. The parties' son was to be named the beneficiary of the pension, in the event of the defendant's death, until the son reached the age of twenty-three. The balance of the plaintiffs automobile loan was $15,500. According to the plaintiffs financial affidavit, the credit card account did not have a balance. The court stated: "[T]he reason I'm making it $600 a week alimony is because that's basically what it's going to cost for the — between the taxes and insurance — excuse me, taxes and the mortgage. Now, the question is, how long? And I'm going to say twelve years. All right? Because it's roughly twelve years when that will be paid off. . . . That's the length of the mortgage [loan] on the house." Although the defendant's argument focuses on the alimony award, insofar as he relies on both § 46b-81 and 46b-82, we construe it also as contesting the property distribution. Further, it is clear that in this case, the order regarding alimony related directly to the order regarding ownership of the marital residence. A number of photographs depicting the parties and their children engaged in various vacation and holiday activities, taken between 1992 and 1998, were introduced into evidence by the plaintiff, presumably to prove that point. Parents have an independent duty to support their minor children, regardless of whether the parents are married. Although we concluded in part I that the court abused its discretion by considering the entire length of the parties' relationship in fashioning its financial orders such that anew hearing is required, we nevertheless address the defendant's second claim because it raises a legal issue likely to arise on remand. See Gervais v. Gervais, 91 Conn. App. 840, 849, 882 A.2d 731 (2005). See General Statutes § 46b-84. Applying that principle, Connecticut's appellate courts have invalidated orders of trial courts that directly or indirectly provided for support of adult children and, therefore, were in excess of those courts' jurisdiction. See Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980) (court lacked jurisdiction to order defendant to name children as irrevocable beneficiaries of life insurance); Keeys v. Keeys, 43 Conn. App. 575, 576-77, 684 A.2d 1214 (1996) (court lacked jurisdiction to order defendant to provide medical, dental insurance and pay one half of unreimbursed medical, dental expenses for adult child); Louney v. Louney, 13 Conn. App. 270, 274-75, 535 A.2d 1318 (1988) (court exceeded authority in restricting mother's use of funds in joint account to payment of adult daughter's educational expenses); Zering v. Zering, 5 Conn. App. 249, 252-53, 497 A.2d 1023 (1985) (if children were not irrevocable beneficiaries of savings trust, court improperly awarded it to mother with limitation that it be used for their postmajority educational expenses). A written agreement is mandatory, serving to confer jurisdiction on the court; Lowe v. Lowe, 47 Conn. App. 354, 357, 704 A.2d 236 (1997); and oral stipulations, thus, do not qualify. Arseniadis v. Arseniadis, 2 Conn. App. 239, 246, 477 A.2d 152 (1984). We observe that in this case, there is no indication that the parties executed a written agreement providing for their children's postmajority support. In this case, although the court in its judgment cited Public Acts 2002, No. 02-128, now codified as General Statutes § 46b-56c, as the basis for its continuing jurisdiction over the issue of educational support, it does not appear that either party filed a motion for an educational support order. Furthermore, the court did not make the factual findings mandated by the statute. The court's order is prescribed by the terms of the statute. The court may not order support for expenses not listed. See Kelman v. Kelman, 86 Conn. App. 120, 125-26, 860 A.2d 292 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1079 (2005). In Wolfburg, this court concluded that an alimony award coextensive with tlie remainder of the minority of the parties' child was proper because there was evidence that during their marriage, the parties had agreed that the recipient would "shape the time spent in a career or employment to the needs of the family during the minority of the child . . . Wolfburg v. Wolfburg, supra, 27 Conn. App. 401-402. We rejected the appellant payor's claim that the award was disguised additional child support,. Id., 400.

Opinion WEST, J. The defendants, D. W. Fish Realty Company (D. W. Fish) and JoAnn Marozzi, appeal from the judg ment of the trial court rendered following a jury verdict in favor of the plaintiffs, Christine Heller and Richard Heller. The plaintiffs also appeal, challenging the court's denial of their motion for attorney's fees. In the first appeal, AC 25624, the defendants claim that the court improperly denied their motion to set aside the verdict. In the second appeal, AC 26102, the plaintiffs claim that the court improperly denied their motion for attorney's fees. We affirm the judgment of the trial court as to the motion to set aside the verdict and reverse the judgment as to the motion for attorney's fees. The jury reasonably could have found the following facts. The plaintiffs sought to purchase their first home and contacted D. W. Fish, a real estate agency. Marozzi, an agent with D. W. Fish, showed the plaintiffs a home at 18 French Road in Bolton. During their visit to the home, the plaintiffs and Marozzi saw a well in the backyard. Marozzi told the plaintiffs that she would ask the listing agent about the well. The plaintiffs and Marozzi then returned to D. W. Fish's office, where the plaintiffs signed a contract to purchase the home. The "well inspection contingency" rider to the contract provided in relevant part that the "[cjontract is contingent upon a satisfactory test of the well system to be performed by a competent well inspector at [b]uyer's expense." Although there was no written buyer agency contract between the plaintiffs and the defendants, Marozzi told the plaintiffs that she would arrange all necessary inspections of the home, including a well inspection. She later assured the plaintiffs that the well functioned properly. The plaintiffs then closed the sale and moved into the home. Approximately seven weeks later, the plaintiffs noticed a problem with their water quality and discovered that rodents had entered the well and died there. The plaintiffs replaced the well, known as a dug well, with a drilled well. They later learned that the inspector whom Marozzi had hired performed a water test, but was not qualified to perform a well inspection, which would have revealed holes through which rodents could enter the well. The plaintiffs then commenced this action, alleging that the defendants had breached their contract with the plaintiffs, acted negligently and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. After a trial, the jury returned a verdict in favor of the plaintiffs on all counts and awarded them $18,500 in economic damages and $25,000 in noneconomic damages. The court denied the defendants' motion to set aside the verdict and rendered judgment in accordance with the verdict. The court subsequently denied the plaintiffs' motion for attorney's fees. These appeals followed. I In AC 25624, the defendants claim that the court should have granted their motion to set aside the verdict. We disagree. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. . A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted." (Internal quotation marks omitted.) Cousins v. Nelson, 87 Conn. App. 611, 624-25, 866 A.2d 620 (2005). In support of their claim that the court should have granted their motion to set aside the verdict, the defendants argue that they (1) had no contractual obligation to inspect the well, (2) were not negligent because they had no duty to inspect the well and that their failure to inspect the well did not cause the plaintiffs' damages, and (3) did not violate CUTPA. We disagree with all of those arguments. A The defendants first argue that they did not have a contractual obligation to inspect the well. That argument merits little discussion. "The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence." (Internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 572, 845 A.2d 417 (2004). The evidence indicated that Marozzi promised to arrange a well inspection and failed to do so. Although no written buyer agency contract existed, the jury reasonably could have concluded, on the basis of Marozzi's oral promise, that the defendants had a contractual obligation to inspect the well and breached that obligation. B The defendants next argue that they were not negligent in failing to inspect the well. We begin by addressing whether the defendants had a duty to inspect the well. "The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis." Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005). As to the first prong, "[d]uty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. . . . [In other words], would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Id., 115. As to the second prong, "[i]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Id., 118. We reject the defendants' argument that they had no duty to inspect the well. Not only was Marozzi aware of the presence of the well, she told the plaintiffs that she would ask the listing agent about it and arrange an inspection of it pursuant to the contract of sale. Marozzi later told the plaintiffs that the well functioned properly, even though the inspector she had hired was not qualified to inspect wells. In the absence of a written buyer agency contract, the jury reasonably could have determined that Marozzi orally had promised to order a proper well inspection. Those circumstances lead us to determine that it was foreseeable to Marozzi that harm could result from a failure to inspect the well properly. The defendants argue that Marozzi did not know that a well inspection is different from the water test that was performed, but her lack of knowledge regarding the specific nature of a well inspection does not affect the foreseeability of the harm. The factors relating to public policy also support the imposition of a duty on the defendants. In particular, the parties expected that Marozzi would arrange a well inspection because she promised the plaintiffs that she would do so. Furthermore, because it is desirable to promote home ownership, public policy favors requiring real estate agents to fulfill the promises they make to buyers. We do not believe that imposing a duty on the defendants to inspect the well in the present case will increase litigation because the facts clearly indicate that Marozzi told the plaintiffs that she would take the responsibility of arranging a well inspection. In view of the distinctive facts of the present case, we find it unnecessary to consider the decisions of other jurisdictions. In sum, our determination of foreseeability and public policy analysis lead us to reject the defendants' argument that they had no duty to inspect the well. We next address whether the defendants' failure to inspect the well caused the plaintiffs' damages. To establish causation, the plaintiffs were required to demonstrate that the defendants' conduct was a cause in fact and the proximate cause of the plaintiffs' damages. "The test for cause in fact is [w]ould the injury have occurred were it not for [the defendant's] negligent . . . conduct . . . ? Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm . The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005). We conclude that the plaintiffs produced sufficient evidence for the jury reasonably to have concluded that the defendants' failure to inspect the well caused the plaintiffs' damages. The test for cause in fact is satisfied because the plaintiffs' damages would not have occurred if Marozzi had arranged a well inspection by a competent professional. The defendants' failure to inspect the well was the proximate cause of the plaintiffs' damages because the lack of a proper inspection was a substantial factor in the resulting harm. The harm that occurred, namely, the rodent infestation of the well, was of the same general nature as the foreseeable risk that Marozzi took in failing to inspect the well. Marozzi knew or should have known that a failure to inspect the well properly could result in a failure to discover defects in the well, and those defects in fact allowed rodents to enter the well. The jury, therefore, reasonably could have concluded that the defendants caused the plaintiffs' damages by failing to inspect the well. C The defendants' last argument is that they could not have violated CUTPA because they did not contract with the plaintiffs to inspect the well and were not negligent. Having rejected the defendants' arguments regarding their contractual obligation and negligence, we also reject their argument that they did not violate CUTPA. Accordingly, we conclude that the court did not abuse its discretion in denying the defendants' motion to set aside the verdict in favor of the plaintiffs. II In AC 26102, the plaintiffs claim that the court improperly denied their motion for attorney's fees. We agree. General Statutes § 42-1 lOg (d) provides in relevant part that "[i]n any action brought by a person [pursuant to CUTPA], the court may award . . . costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .''As we have stated previously, "[a]n award of attorney's fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case." (Internal quotation marks omitted.) LaMontagne v. Musano, Inc., 61 Conn. App. 60, 63-64, 762 A.2d 508 (2000). The court ordered the plaintiffs to submit "evidence as to the portion of the fees requested specifically related to the CUTPA [claim] . . . ." The plaintiffs, however, could not distinguish the amount of attorney's fees related to their CUTPA claim from the amounts related to their breach of contract and negligence claims. The court consequently denied their motion for attorney's fees, relying on Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 752 A.2d 1098 (2000). That case involved protracted litigation concerning two different contracts. The trial court in that case awarded the named defendant $19,413.50 in attorney's fees related to her CUTPA counterclaim in regard to one of the contracts. Id., 195. On cross appeal, the named defendant claimed that the court should have awarded her $53,605.50 in attorney's fees incurred in the defense of the entire litigation. Id., 199 n.4. In rejecting that claim, we stated that § 42-1 lOg (d) "relates solely to claims related to the prosecution of a CUTPA claim and not to all claims." Id., 200. Because the named defendant's CUTPA counterclaim related only to one of the two contracts involved in the parties' lengthy litigation, we determined that the court properly awarded her $19,413.50 in attorney's fees rather than $53,605.50. Id. In the present case, the plaintiffs' breach of contract and negligence claims were related to their CUTPA claim because they depended on the same facts. As we stated in Jacques All Trades Corp., § 42-110g (d) encompasses "claims related to the prosecution of a CUTPA claim"; id.; not only one claim explicitly labeled as a CUTPA claim. The court therefore should not have ordered the plaintiffs to submit evidence apportioning their attorney's fees among their claims. In AC 26102, the judgment is reversed only as to the denial of the plaintiffs' motion for attorney's fees and the case is remanded for a hearing regarding the appropriate amount of attorney's fees. In AC 25624, the judgment is affirmed. In this opinion the other judges concurred. We note that the plaintiffs requested $48,017.17 in attorney's fees and that the defendants have conceded that that request is reasonable.

Opinion LAVERY, C. J. This appeal presents a question of statutory interpretation of General Statutes § 45a-441, our testamentary antilapse statute. The appellant, Kathleen Smaldone, appeals from the judgment of the Superior Court on appeal from the Probate Court, which found the statute inoperative in the present case. We disagree and, accordingly, reverse the judgment of the Superior Court. The facts are undisputed. On March 1, 1990, John N. Swanson executed a will. The residuary clause contained therein bequeathed, inter alia, "one-half . of [the residue] property to Hazel Brennan of Guilford, Connecticut, if she survives me . . . ." Brennan died on January 2,2001, seventeen days prior to the testator's death. Brennan was the testator's stepdaughter, a relation encompassed by § 45a-441. The appellant is the child of the deceased legatee, Brennan, and is a residuary legatee in the will, and, thus, was an object of affection of the testator. On February 9,2001, the will was admitted to probate. In a memorandum of decision dated April 26, 2002, the Probate Court concluded that, as § 45a-441 "is not operative," the bequest to Brennan lapsed and passed to the intestate estate. The plaintiffs, Fred Ruotolo and Charlene Ruotolo, beneficiaries under the will, filed a motion for appeal to the Superior Court. The Probate Court issued a decree allowing the appeal. The appellant thereafter filed a cross appeal. Following a de novo hearing, the court issued a memorandum of decision affirming the judgment of the Probate Court, and this appeal followed. The sole issue on appeal is whether the court properly concluded that the antilapse statute does not apply. Section 45a-441 has never been scrutinized by appellate eyes and, thus, presents a question of first impression. Accordingly, our review is plenary. See Genesky v. East Lyme, 275 Conn. 246, 252, 881 A.2d 114 (2005). Pursuant to General Statutes § l-2z, we consider first the text of § 45a-441 to determine whether it is ambigu ous. The statute provides: "When a devisee or legatee, being a child, stepchild, grandchild, brother or sister of the testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed." General Statutes § 45a-441. The bequest in the present case specified "one-half . of [the residue] property to Hazel Brennan of Guilford, Connecticut, if she survives me . . . ." Because the bequest contained the condition, "if she survives me," both the Probate Court and the Superior Court concluded that a provision had been made in the will for such contingency. The appellant disagrees, arguing that because the will contained no provision as to the fate of Brennan's share in the event that she predeceased the testator, a provision had not been made in the will for such contingency. Both readings present plausible interpretations of the salient statutory language. In light of that ambiguity, we turn our attention to extratextual evidence to determine its proper meaning. See General Statutes § l-2z. "According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. . . . In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." (Citation omitted; internal quotation marks omitted.) Regency Savings Bank v. Westmark Partners, 70 Conn. App. 341, 345, 798 A.2d 476 (2002). "A legislative act must be read as a whole and construed to give effect and to harmonize all of its parts." (Internal quotation marks omitted.) Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984). In addition, "[w]here the meaning of a statute is in doubt, reference to legislation in other states and jurisdictions which pertains to the same subject matter, persons, things, or relations may be a helpful source of interpretative guidance." (Internal quotation marks omitted.) Johnson v. Manson, 196 Conn. 309, 318-19, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986). I HISTORY At common law, when a named beneficiary under a will predeceased the testator, the share of the deceased beneficiary passed not to his descendants, but rather "lapsed." See 4 W. Bowe & D. Parker, Page on the Law of Wills (Rev. Ed. 2005) § 35.15, p. 645; see also Clifford v. Cronin, 97 Conn. 434, 438, 117 A. 489 (1922). Thus, the rule of lapse automatically conditions all devises on the survival of the legatee. "At common law, all legacies, not affected by substitutionary disposition, became intestate estate whenever the legatee died before the testator." Ackerman v. Hughes, 11 Conn. Sup. 133, 135 (1942). As Judge O'Sullivan explained in Ackerman, "[s]ome pretty oppressive results were occasioned by these principles which frequently blocked the way for carrying out the testator's expressed intention. These injustices were most significant in those instances where the will provided legacies for close relatives." Id. To prevent such a harsh and presumably unintended result, legislatures of the United States in the late eighteenth century began crafting statutes designed to protect certain devises from lapsing. In 1783, the Massachusetts legislature enacted the first antilapse statute. It provided: "When a devise of real or personal estate is made to any child or other relation of the testator, and the devisee shall die before the testator, leaving issue who survive the testator, such issue shall take the estate so devised, in the same manner as the devisee would have done, if he had survived the testator; unless a different disposition thereof shall be made or required by the will." 1783 Mass. Acts, ch. 24, § 8, quoted in S. French, "Antilapse Statutes Are Blunt Instruments: A Blueprint for Reform," 37 Hastings L.J. 335, 339 n.16 (1985). "In 1810, Maryland went even further and adopted a statute that prevented lapse altogether. . . . These two statutes provided the basic models on which all subsequent antilapse statutes have been constructed." S. French, 37 Hastings L.J., supra, 339. In England, the Wills Act of 1837 took antilapse statutes across the Atlantic Ocean, providing that "when there was a devise or bequest to a child or other issue of the testator, and the child or issue predeceased the testator, leaving issue who survived the testator, the devise or bequest should not lapse, 'but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.' " 6 W. Bowe &D. Parker, supra, § 50.10, p. 91. Today, antilapse statutes have been enacted in every state except Louisiana. "[T]he antilapse statutes in effect across the United States vary significantly [and] so much . . . that no typical or 'majority' antilapse statute exists." E. Kim-brough, "Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection," 36 Wm. & Mary L. Rev. 269, 271 (1994). Although varying in scope, all antilapse statutes provide that when a particular devisee predeceases the testator, the devise does not fall into the residue or pass to the testator's heirs by intestacy, but rather descends to the issue of the predeceased devisee. "Although . . . commonly called 'antilapse' statutes, the label is somewhat misleading. Contrary to what the label implies, antilapse statutes do not reverse the common-law rule of lapse because they do not abrogate the law-imposed condition of survivorship. . . . What the statutes actually do is modify the devolution of lapsed devises by providing a statutory substitute gift in the case of specified relatives." E. Halbach, Jr. & L. Waggoner, "The UPC's New Survivorship and Antilapse Provisions," 55 Alb. L. Rev. 1091,1101 (1992). With that background in mind, we turn our attention to § 45a-441. II OUR ANTILAPSE STATUTE Connecticut's antilapse statute was enacted in 1821 as part of "An Act for the settlement of Estates, testate, intestate, and insolvent." It provided: "Whenever a devi-see or legatee in any last will and testament, being a child or grand-child of the testator, shall die before the testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed, as the devisee or legatee would have done, had he or she survived the testator; and if there be no such issue, at the time of the testator's death, the estate disposed of by such devise or legacy, shall be considered and treated as intestate estate." General Statutes (1821 Rev.) tit. 32, ch. 1, § 4. The antilapse statute today provides that "[w]hen a devisee or legatee, being a child, stepchild, grandchild, brother or sister of the testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed." General Statutes § 45a-441. Other than adding siblings and stepchildren to the class of applicable devisees and legatees; see Public Acts 1987, No. 87-355, § 2; no substantive change has been made to our antilapse statute since 1821. Moreover, the pertinent language at issue in the present dispute, namely, "and no provision shall be made for such contingency,'' was part of the original 1821 statute and remains unaltered today. Plainly, the purpose underlying our antilapse statute is the prevention of unintended disinheritance. Its passage reflects a legislative determination that, as a matter of public policy, when a testator fails to provide for the possibility that a particular beneficiary might predecease him, the lineal descendants of that beneficiary take the applicable share. In the years since its enactment, Connecticut courts have stated that the antilapse statute is remedial and should receive a liberal construction. See, e.g., Clifford v. Cronin, supra, 97 Conn. 438; Ackerman v. Hughes, supra, 11 Conn. Sup. 135-36. When a dispute arises regarding application of that statute, therefore, the burden rests on the party seeking to deny the statutory protection. Under Connecticut law, the antilapse statute applies unless a "provision has been made in the will for such contingency...." General Statutes § 45a-441. A review of the antilapse statutes presently in effect in forty-eight other jurisdictions reveals that this language is unique to our statute. It is not disputed that the "contingency" referenced in § 45a-441 is the death of a devisee or legatee prior to that of the testator. What is contested is the proper construction of the "provision has been made in the will" language. The appellees contend that inclusion of words of survivorship in a will constitutes a provision for such contingency, thereby rendering the antilapse statute inapplicable. Because the bequest in the present case contains the condition "if she survives me," they claim § 45a-441 is inoperative. That simple and seemingly persuasive argument fails, however, on closer examination. First, it is significant that the language at issue dates back to 1821, the inception of our antilapse statute. The first antilapse statute, enacted in Massachusetts in 1783, provided that it would apply "unless a different disposition thereof shall be made or required by the will." 1783 Mass. Acts, ch. 24, § 8, quoted in S. French, supra, 37 Hastings L.J. 339 n.16. The Maryland statute enacted in 1810 contained no such condition. Like every other antilapse statute that followed, ours was modeled on those statutes. Today, amajority of jurisdictions contain some variation of the "unless a different disposition thereof' condition. See Ark. Code Ann. § 28-26-104 (2004) ("[ujnless a contrary intent is indicated by the terms of the will"); Cal. Prob. Code § 21110 (b) (Deering 2004) ("issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary intention or a substitute disposition"); Del. Code Ann. tit. 12, § 2313 (b) (2001) (section shall not apply in case of wills wherein provisions have been made for distribution of property different from this section); Fla. Stat. Ann. § 732.603 (West 2005) ("[ujnless a contrary intention appears in the will"); 755 Ill. Comp. Stat. Ann. § 5/4-11 (West 1992) ("[ujnless the testator expressly provides otherwise in his will"); Iowa Code Ann. § 633.273 (2) (West 1992) ("unless from the terms of the will, the intent is clear and explicit to the contrary"); Kan. Prob. Code Ann. § 59-615 (a) (West 1994) ("unless a different disposition is made or required by the will"); Ky. Rev. Stat. Ann. § 394.400 (same) (LexisNexis 1999); Md. Code Ann. Est. & Trusts § 4-403 (a) (LexisNexis 2001) ("[ujnless a contrary intent is expressly indicated in the will"); Mass. Ann. Laws ch. 191, § 22 (Law. Coop. 1994) (same); Nev. Rev. Stat. § 133.200 (2003) ("in the absence of a provision in the will to the contrary"); N.Y. Est. Powers & Trusts Law § 3-3.3 (a) (McKinney 1998) ("[ujnless the will whenever executed provides otherwise"); N.C. Gen. Stat. § 31-42 (a) (2005) ("[ujnless the will indicates a contrary intent"); Ohio Rev. Code Ann. § 2107.52 (B) (West 2005) ("[ujnless a contrary intention is manifested in the will"); Or. Rev. Stat. Ann. § 112.395 (West 1990) ("[ujnless otherwise provided in the will of the testator"); R.I. Gen. Laws § 33-6-19 (1995) ("unless a contrary intention shall appear by the will"); Tenn. Code Ann. § 32-3-105 (a) (2001) ("unless a different disposition thereof is made or required by the will"); Tex. Prob. Code Ann. § 68 (e) (Vernon 2003) ("unless the testator's last will and testament provides otherwise"); Vt. Stat. Ann. tit. 14, § 558 (2002) ("unless a different disposition is required by the will"); Va. Code Ann. § 64.1-64.1 (2002) ("[ujnless a contrary intention appears in the will"); Wash. Rev. Code Ann. § 11.12.110 (West 1998) ("[u]nless otherwise provided"); W. Va. Code § 41-3-3 (LexisNexis 2004) ("unless a different disposition thereof be made or required by the will"); Wis. Stat. Ann. § 854.06 (4) (a) (West 2002) ("section does not apply if there is a finding of contrary intent of the decedent"). Thus, although the precise wording of the condition in our antilapse statute is unique, its existence is not. Like other states, Connecticut enacted its statute to counteract the harsh results of the common-law rule of lapse. Like other states, Connecticut conditioned operation of the antilapse statute on the intent of the testator as expressed in the will. Accordingly, the critical inquiry is whether an intent contrary to § 45a-441 is so manifested. Our inquiry into whether words of survivorship evince a contrary intent sufficient to defeat the antilapse statute is guided by the following principles. Antilapse statutes "will apply unless testator's intention to exclude its operation is shown with reasonable certainty." 6 W. Bowe & D. Parker, supra, § 50.11, p. 96. Section 5.5 of the Restatement (Third) of Property, Wills and Other Donative Transfers (1999), addresses anti-lapse statutes. Comment (f) to that section provides in relevant part: "Antilapse statutes establish a strong rule of construction, designed to carry out presumed intention. They are based on the constructional preference against disinheriting a line of descent . Consequently, these statutes should be given the widest possible sphere of operation and should be defeated only when the trier of fact determines that the testator wanted to disinherit the line of descent headed by the deceased devisee." 1 Restatement (Third), Property, Wills and Other Donative Transfers § 5.5, comment (f), p. 383 (1999). Hence, the burden is on those who seek to deny the statutory protection rather than on those who assert it. Finally, we are mindful that our statute was enacted to prevent operation of the rule of lapse. Our statute is remedial in nature and must be liberally construed. Clifford v. Cronin, supra, 97 Conn. 438; Ackerman v. Hughes, supra, 11 Conn. Supp. 135-36. Accordingly, we resolve any doubt in favor of the operation of § 45a-441. The bequest at issue states, "one-half . of [the residue] property to Hazel Brennan of Guilford, Connecticut, if she survives me . . . ." (Emphasis added.) Our task is to determine the significance of those words of survivorship. While the present case is one of first impression in Connecticut, numerous other states have considered the question of whether words of survivor-ship, such as "if she survives me," demonstrate a contrary intent on the part of the testator sufficient to negate operation of the antilapse statute. Ill OTHER AUTHORITY Whether words of survivorship alone constitute sufficient evidence of a contrary intent on the part of the testator so as to prevent application of the antilapse statute is a question on which sibling authority is split. Some courts have concluded that words of survivorship demonstrate sufficient contrary intent. Illustrative of that line of cases is Bankers Trust Co. v. Allen, 257 Iowa 938, 135 N.W.2d 607 (1965). In that case, the Supreme Court of Iowa stated: "The bequest to Mary in Item III is conditioned on her surviving the testator. We have held many times . . . that our antilapse statute . . . does not apply to a bequest so conditioned. . . . This is on the theory that a bequest to one 'if she survives me' manifests an intent that the bequest would lapse if the named beneficiary dies before the testator." (Citations omitted.) Id., 945; see also In re Estate of Todd, 17 Cal. 2d 270, 109 P.2d 913 (1941); In re Estate of Stroble, 6 Kan. App. 2d 955, 960, 636 P.2d 236 (1981) ("when the testator uses words of survivorship in the will expressing an intent that the legatee shall take the gift only if he outlives the testator, the statute against lapses has no application and the expressed intention of the testator is controlling"); Slattery v. Kelsch, 734 S.W.2d 813 (Ky. App. 1987); In re Holtforth's Estate, 298 Mich. 708, 299 N.W. 776 (1941); In re Robinson's Will, 37 Misc. 2d 546, 236 N.Y.S.2d 293 (1963); Hummell v. Hummell, 241 N.C. 254, 85 S.E.2d 144 (1954); In re Estate of Burns, 78 S.D. 223, 228, 100 N.W.2d 399 (1960) ("if the testator uses words indicating an intention that the named beneficiary shall take the gift only if he outlives the testator, there is nothing upon which the statute can operate"). Underlying that view is the presumption that the testator knowingly and deliberately included the words of survivorship. As one New York court explained: " [T]hese words were used by the testator in a will drawn by an experienced attorney. Some meaning must be attributed to them — and the meaning is clear — that sur-vivorship was a condition precedent to the receipt of the residuary estate. If words were held to be devoid of meaning, then this court would be rewriting the testator's will." In re Robinson's Will, supra, 37 Misc. 2d 548. That presumption has pitfalls of its own, however. Inclusion of words of survivorship provides neither objective evidence that a conversation about § 45a-441 took place nor objective evidence that the testator considered seriously the possibility of nonsurvival or inquired about the meaning of expressions such as "lapsed bequest" and the protections of the antilapse statute. "Because such a survival provision is often boiler-plate form-book language, the testator may not understand that such language could disinherit the line of descent headed by the deceased devisee. When the testator is older than the devisee and hence does not expect the devisee to die first . it seems especially unlikely that a provision requiring the devisee to survive the testator was intended to disinherit the devisee's descendants." 1 Restatement (Third), supra, § 5.5, comment (h), p. 385. At oral argument, counsel for the appellees alleged that inclusion of the words "if she survives me" indicates that the testator intended for the bequest to Brennan to lapse. While plausible, it remains conjecture nonetheless. As one commentary aptly stated: "The argument can reasonably be extended to urge that the use of words of survivorship indicates that the testator considered the possibility of the devisee dying first and intentionally decided not to provide a substitute gift to the devisee's descendants. The negative inference in this argument, however, is speculative. It may or may not accurately reflect reality and actual intention. It is equally plausible that the words of survivorship are in the testator's will merely because, with no such intention, the testator's lawyer used a will form containing words of survivorship. The testator who went to lawyer X and ended up with a will containing devises with a survivorship requirement could by chance have gone to lawyer Y and ended up with a will containing devises with no survivorship requirement — with no different intention on the testator's part from one case to the other." E. Halbach, Jr. & L. Waggoner, supra, 55 Alb. L. Rev. 1112-13. Furthermore, words of survivorship "might very well be no more than a casual duplication of the survivorship requirement imposed by the rule of lapse, with no independent purpose. Thus, they are not necessarily included in the will with the intention of contradicting the objectives of the antilapse statute." Id., 1109-10. As this court recently observed, "[speculation and conjecture have no place in appellate review." Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). Put simply, the intent of the testator cannot definitely be discerned on the basis of words of survivorship alone. If he intended the bequest to lapse, the testator could have explicitly so provided. The testator also could have made an alternative devise, which "indicates a contrary intent, and hence overrides an antilapse statute . . . ." 1 Restatement (Third), supra, § 5.5, comment (g), p. 384; see also E. Halbach, Jr. & L. Waggoner, supra, 55 Alb. L. Rev. 1110 (when actually intended to call for result contrary to antilapse statute, words of survivor-ship likely to be accompanied by additional language). That the testator did neither in the present case informs our consideration of whether he intended disinheritance. The argument is further weakened by the fact that, under the interpretation of § 45a-441 provided by the Probate Court and the Superior Court, the result is not merely that Brennan's share lapses; her share passes to the intestate estate. Thus, at its crux, the contention of the appellees asks us to presume that, although not explicitly provided for, the testator intended intestacy as to Brennan's share. That argument confounds Connecticut law, which presumes that a testator designed by his will to dispose of his entire estate and to avoid intestacy as to any part of it. See, e.g., Colonial Bank & Trust Co. v. Stevens, 164 Conn. 31, 41, 316 A.2d 768 (1972); Hartford-Connecticut Trust Co. v. Hartford Hospital, 141 Conn. 163, 172, 104 A.2d 356 (1954); Ansonia National Bank v. Kunkel, 105 Conn. 744, 750, 136 A. 588 (1927); Beardsley v. Johnson, 105 Conn. 98, 112, 134 A. 530 (1926). In addition, the bequest to Brennan was residuary in nature. "Residuary language expresses an intention to . . . avoid intestacy." Hechtman v. Savitsky, 62 Conn. App. 654, 663, 772 A.2d 673 (2001); see also Hartford Trust Co. v. Wolcott, 85 Conn. 134, 139, 81 A. 1057 (1912). Indulging in the presumption that the testator intended to avoid intestacy militates against a finding that he intended for Brennan's share to lapse. Another presumption bears consideration. In Clifford v. Cronin, supra, 97 Conn. 438, our Supreme Court, quoting 2 J. Alexander, Commentaries on Wills, § 874, stated that "the testator is presumed to know the law and that his will is drawn accordingly." As one court has noted, however, "[w]ith respect to any individual, the argument of knowledge and approval of the state law is sheer fiction." Trimble v. Gordon, 430 U.S. 762, 775 n.16, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). Discounting that observation, the presumption is revealing nevertheless. If we must presume that the testator was aware of our antilapse statute, we must also equally presume that he was aware that it is remedial in nature and provided a liberal construction in Connecticut. In that event, the testator would have known that any ambiguity arising from the probate of his will, absent an express indication to the contrary, would be resolved in favor of operation of the statute. Alternatively, another line of cases from various jurisdictions concludes that words of survivorship alone are insufficient to defeat an antilapse statute. As the Supreme Court of Appeals of West Virginia stated, "In order to prevent application of the [antilapse] statute . a testator must clearly and unequivocally indicate his intent that the statute not apply." Kubiczky v. Wesbanco Bank Wheeling, 208 W. Va. 456, 460, 541 S.E.2d 334 (2000); see also In re Estate of Bulger, 224 Ill. App. 3d 456, 586 N.E.2d 673 (1991); Galloupe v. Blake, 248 Mass. 196, 142 N.E. 818 (1924); In re Estate of Ulrikson, 290 N.W.2d 757, 759 (Minn. 1980); Royston v. Watts, 842 S.W.2d 876, 880 (Mo. App. 1992); Estate of Kehler, 488 Pa. 165, 411 A.2d 748 (1980); In re Estate of Allmond, 10 Wash. App. 869, 520 P.2d 1388, review denied, 84 Wash. 2d 1004 (1974). A similar case is Detzel v. Nieberding, 7 Ohio Misc. 262, 219 N.E.2d 327 (Prob. Ct. 1966). In Detzel, the will provided in relevant part, "To my beloved sister, Mary Detzel, provided she be living at the time of my death . . . ." (Internal quotation marks omitted.) Id., 263. Mary Detzel predeceased the testator. Id. In considering the operation of Ohio's antilapse statute, the court noted that "[a]ntilapse statutes are remedial and should receive a liberal construction"; id., 267; echoing a precept shared by Connecticut law. Accordingly, "[a]ll doubts are to be resolved in favor of the operation of the antilapse statute . . . . [T]o render [the] statute inoperative contrary intent of testator must be plainly indicated." (Citations omitted.) Id., 266-67. The court continued: "To prevent operation of the Ohio antilapse statute when a devise is made to a relative conditioned upon the survival of the testator by the relative, and the relative predeceases the testator leaving issue who survive the testator, it is necessaiy that the testator, in apt language, make an alternative provision in his will providing that in the event such relative predeceases or fails to survive the testator such devise shall be given to another specifically named or identifiable devisee or devisees." Id., 274. Although we do not agree that the only way to negate operation of an antilapse statute is by providing an alternate devise, Detzel is persuasive nevertheless. Detzel has never been reversed, although another Ohio court characterized it as "clearly and completely erroneous." Shalkhauser v. Beach, 14 Ohio Misc. 1, 6, 233 N.E.2d 527 (Prob. Ct. 1968). The Uniform Probate Code, however, seems to agree with the logic of Detzel. In 1990, a revised Uniform Probate Code was promulgated, which contained a substantially altered antilapse statute. Notably, § 2-603 (b) (3) provides that "words of survivorship, such as in a devise to an individual 'if he survives me,' or in a devise to 'my surviving children,' are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section." Unif. Prob. Code § 2-603 (b) (3). The comment to that section explains that this expansion of antilapse protection was necessary because "an anti-lapse statute is remedial in nature . [T]he remedial character of the statute means that it should be given the widest possible latitude to operate" in considering whether in an individual case there is an indication of a contrary intent sufficiently convincing to defeat the statute. Id., comment. The Restatement Third of Property agrees; see 1 Restatement (Third), supra, § 5.5, comment (f), p. 383; and that proposition is consonant with Connecticut law. In sum, we agree with those jurisdictions that have held that mere words of survivor-ship do not defeat antilapse statutes. IV CONCLUSION Our antilapse statute was enacted to prevent operation of the rule of lapse and unintended disinheritance. The statute is remedial and receives a liberal construction. Any doubts are resolved in favor of its operation. We therefore conclude that words of survivorship, such as "if she survives me," alone do not constitute a "provision" in the will for the contingency of the death of a beneficiary, as the statute requires, and thus are insufficient to negate operation of § 45a-441. Our conclusion today effectuates the intent of the General Assembly in enacting this remedial statute. Should a testator desire to avoid application of the antilapse statute, the testator must either unequivocally express that intent or simply provide for an alternate bequest. Because the testator in the present case did neither, the protections of the antilapse statute apply. Accordingly, the bequest to Brennan does not lapse, but rather descends to her issue. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. Kathleen Smaldone is also known as Kathleen Ziegler. The plaintiffs in the appeal from probate were Fred Ruotolo and Charlene Ruotolo, while the defendants were Riefe Tietjen, executor of the estate of John N. Swanson, and Smaldone, Stella Szollosi, Yolanda Szollosi, Marion Fessenden, Geraldine Augeri and Michael Pesce. Only Smaldone has appealed to this court. For clarity, we refer in this opinion to Smaldone as the appellant and the other parties as appellees or by name. The terms "bequest" and "devise" are similar but not synonymous. In Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737 n.17, 675 A.2d 430 (1996), our Supreme Court explained that a devise is equivalent to a bequest "except that it applies to land." General Statutes § l-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." The authors of that commentary were members of the joint editorial board for the Uniform Probate Code. Professor Waggoner served as reporter of article II of the Uniform Probate Code (1990). E. Halbach, Jr. & L. Waggoner, supra, 55 Alb. L. Rev. 1091. The Maryland statute provided: "That from and after the passage of this act, no devise, legacy or bequest, shall lapse or fail of taking effect by reason of the death of any devisee or legatee named in any last will or testament, .or any codicil thereto, in the life-time of the testator, but every such devise, legacy or bequest, shall have the same effect and operation in law to transfer the right, estate and interest, in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator." 1810 Md. Laws, ch. 34, § 4, quoted in E. Kimbrough, supra, 36 Wm. & Mary L. Rev. 274 n.35. The antilapse statutes of sixteen states operate unconditionally. See Ala. Code § 43-8-224 (1991); Ga. Code Ann. § 53-4-64 (b) (1997) ("unless there appears a clear intent of the contrary" provision applicable only to class gifts); Idaho Code § 15-2-605 (Michie 2001); Ind. Code Ann. § 29-1-6-1 (g) (LexisNexis 2000); Minn. Stat. Ann. § 524.2-6031 (West 2002); Miss. Code Ann. § 91-5-7 (2004); Mo. Rev Stat. § 474.460 (2000); Neb. Rev. Stat. § 30-2343 (1995); N.H. Rev. Stat. Ann. § 551.12 (1997); N.J. Stat. Ann. § 3B:3-35 (West 1983); N.D. Cent. Code § 30.1-09-05 (1996); Okla. Stat. Ann. tit. 84, § 142 (West 1990); 20 Pa. Cons. Stat. Ann. § 2514 (9) (West 2005); S.C. Code Ann. § 62-2-603 (Law. Co-op. 1987); S.D. Codified Laws § 29A-2-603 (Michie 1997); Wyo. Stat. Ann. § 2-6-106 (2005). "Antilapse statutes typically provide, as a rebuttable rule of construction, that devises to certain relatives who predecease the testator pass to specified substitute takers, usually the descendants of the predeceased devisee who survive the testator." 1 Restatement (Third), Property, Wills and Other Donative Transfers § 5.5, p. 381 (1999). In ascertaining the intent and meaning of a particular statute, Lord Coke prescribed four general inquiries: "(a) What was the law before the Act was passed, (b) what was the mischief or defect for which the law had not provided, (c) what remedy did the legislature prescribe, and (d) what was the reason for the remedy." Merchants Bank & Trust Co. v. Pettison, 112 Conn. 652, 655, 153 A. 789 (1931). As our Supreme Court noted, "the meaning of legislative language . is best understood by viewing not only the language at issue, but by its context and by the purpose . . . behind its use." Frillici v. Westport, 231 Conn. 418, 431 n.15, 650 A.2d 557 (1994). "[T]here is always some gap in time between the execution of a will and the date the will takes effect, and that during this gap death may take its toll of some or all of the intended beneficiaries. The careful draftsman, of course, foresees this situation and provides specifically in the will exactly what is to happen to the share of an intended beneficiary who dies before the testator. The careless or ignorant draftsman fails to meet the problem squarely with the result that the desire of the testator as to the disposition of his property is not expressed, and the court is forced to guess wha.t he would have intended had the matter been brought to his attention." A. Casner, "Class Gifts — Effect of Failure of Class Member to Survive the Testator," 60 Harv. L. Rev. 751, 751 (1947). It is "axiomatic in this jurisdiction that, if a gift of a portion of the residue of an estate fails, that portion becomes intestate property." Bronson v. Pinney, 130 Conn. 262, 270, 33 A.2d 322 (1943); see also Clark v. Portland Burying Ground Assn., 151 Conn. 527, 531, 200 A.2d 468 (1964); Daboll v. Daboll, 101 Conn. 142, 147, 125 A. 253 (1924); Bristol v. Bristol, 53 Conn. 242, 260, 5 A. 687 (1885); accord 6 W. Bowe & D. Parker, supra, § 50.18, p. Ill ("[i]t is now settled, by the weight of authority, that a lapsed part of the residuum does not itself pass into the remainder of the residuum, but that it passes to the testator's next of kin as intestate property"); but see 1 Restatement (Third), supra, § 5.5, comment (o), p. 389 (rejecting "no-residue-of-a-residue" rule); In re Frolich Estate, 112 N.H. 320, 326, 295 A.2d 448 (1972) (adopting rule that failure of portion of residue results in division of such portion among remaining residuary legatees). The latter rule seemingly is consistent with the presumption that a testator intends to avoid intestacy. See Colonial Bank & Trust Co. v. Stevens, 164 Conn. 31, 41, 316 A.2d 768 (1972); Hechtman v. Savitsky, 62 Conn. App. 654, 663, 772 A.2d 673 (2001).

The plaintiffs petition for certification for appeal from the Appellate Court, 94 Conn. App. 547 (AC 26706), is denied.