332637 v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Angel Robles, brings this petition for a writ of habeas corpus claiming that his trial attorney failed to convey a plea offer and provided ineffective assistance during the criminal trial.   He seeks an order that his conviction be vacated.   The court denies the petition and finds all of the issues for the respondent.

After a jury trial, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2) and risk of injury to a child in violation of General Statutes § 53–21(2).   The trial court sentenced the petitioner to twenty-five (25) years suspended after fifteen years (15) of incarceration, followed by fifteen (15) years probation.   The petitioner appealed his convictions to the Appellate Court, which affirmed them.  State v. Robles, 103 Conn.App. 383, 930 A.2d 27 (2007).   The petitioner's petition for certification of his appeal to the Supreme Court was denied.  State v. Robles, 284 Conn. 928, 934 A.2d 244 (2007).

According to the Appellate Court, the jury could reasonably found the following facts:

The victim had known the defendant since she was approximately five to seven years old.   When she first came into contact with the defendant, the victim and her immediate family lived in Poughkeepsie, New York, where the defendant, who was the boyfriend of the victim's aunt, also lived.   At that time, the defendant would occasionally watch the victim and her siblings while the victim's mother and her aunt went out.   The victim testified that on many of these occasions, while the victim and the defendant were in her mother's room, the defendant initiated sexual contact with her by rubbing her chest and vagina underneath her clothing and attempted unsuccessfully to engage in sexual intercourse with her.   The victim's mother testified that the defendant was in his early twenties at the time.

When the victim was approximately eight years old, she and her family moved to an apartment in Bridgeport.   Shortly after the victim moved to Bridgeport, the victim's aunt and the defendant moved there as well, taking up residence in an apartment upstairs from the victim and her family.   The victim testified that, during the period when she was between the ages of eight to approximately eleven or twelve years old, the defendant continued to engage in the same type of sexual contact with her.   She testified specifically to an incident that occurred in her aunt's upstairs apartment when the defendant began groping and touching her chest area, removed her shorts and attempted to have sexual intercourse with her.   She testified that she was successful in warding off his attempts at that time.

Both the victim and the defendant changed residences on at least two subsequent occasions;  however, they stayed in Bridgeport and always remained in relative proximity to each other.   When the victim was approximately twelve years old, she began to baby-sit for her younger cousin at the home of her aunt and the defendant.   The victim testified that one night, when she was twelve years old, the defendant came into her cousin's room where she was sleeping and had sexual intercourse with her.   She testified that this occurred on other occasions, at times when she would sleep overnight at her aunt's house.   She gave a detailed account of another incident that occurred in her cousin's room when the defendant attempted unsuccessfully to engage in anal intercourse with her.   After this incident, the victim confronted the defendant and warned him that she would tell her mother what was occurring if it continued.   According to the victim, the sexual assaults stopped after this confrontation.

The victim first reported the sexual assaults to her former boyfriend's mother, J, years later, in 2001.   J advised the victim not to tell her boyfriend, S, because J feared that her son would get hurt or do something irrational after hearing that the abuse had occurred.

Eventually, the victim told S about the assaults approximately two years after she made the initial disclosure to J.

In July 2003, the victim and S wete in an argument on the street outside of the victim's home, which eventually required police intervention.   Many other people were present, including the victim's mother, her aunt, the defendant and J. At some point during the argument, the victim's aunt got involved.   In response to a comment made to S by the victim's aunt, S stated, “you shouldn't be worried about me, you should be worried about [the defendant].   He molested her when she was little.”

After this argument, the victim admitted to her mother that she had been sexually assaulted by the defendant.   The assaults eventually were reported to the authorities in July 2003.

State v. Robles, supra, 103 Conn.App. 385–7 (footnote omitted).

The petitioner filed this petition for a writ of habeas corpus on January 31, 2008.   The petition is in two counts.   Count one of the second amended petition, dated June 20, 2012, is directed to trial counsel's conduct at a trial.   In particular, the petitioner claims that his trial counsel, David Abbamonte, now deceased, was ineffective in that he “opened the door” to damaging testimony concerning prior misconduct of the petitioner toward the victim.   In addition, the petitioner claims that during the course of the trial, trial counsel failed to:

1.  Present the testimony of the petitioner's employer to rebut the issue of “flight as admission of guilt.”

2. Present as witnesses the victim's former boyfriend and his mother to undermine the credibility of the victim.

3. “raise and preserve the ‘marshalling of evidence’ issue as to the Judge's instructions having a prejudicial fashion emphasized the State's evidence to the jury, when there existed reason and cause to have raised the issue per State v. Davis, 255, 782, 789, 772 A.2d 559 (2001).”

4. “properly address and preserve for appeal the evidentiary issue concerning the ‘consciousness of guilt’ flight issue per State v. Robles, supra, 103 Conn.App. 391–92.”

5. “effectively and properly address and preserve for appeal the damaging use by the State of a ‘substitute information’ against the defendant, after such time as the defendant has [sic] already proven the dates contained in the prior information were to an extent impossible, given the period of time petitioner could prove he lived abroad.”

6. “Object or rebut hearsay statements made by the petitioner;  specifically Diana Nieves testimony that the petitioner admitted guilt.”

The petitioner claims that but for the conduct of his trial counsel, the result of his criminal trial and appeal would have been different and favorable to the petitioner.

In the second count of the second amended petition, the petitioner claims that trial counsel rendered ineffective assistance in failing to convey a plea offer made by the pretrial judge, prior to the petitioner's criminal trial.   The petitioner asserts that had trial counsel communicated the Court's plea offer to him, he would have accepted it and received a significantly lesser sentence.   By way of relief on both counts, the petitioner seeks an order vacating the petitioner's convictions and returning the case to the trial court for further proceedings.

As to each count, the respondent asserts the special defense of laches.

A trial was held on the petition on March 28, 2012.   The petitioner presented testimony from Supervisory Assistant State's Attorney, Howard Stein, Maria Hudyberdi, the petitioner's girlfriend, Attorney Thomas E. Farver, the petitioner's expert witness, and the petitioner.   The petitioner's trial attorney, David Abbamonte died sometime prior to the habeas trial in this case.   The respondent introduced certain documents, primarily transcripts and records from the underlying criminal pretrial and trial proceedings.   Both parties filed post-trial briefs.

A. Count Two—Communication of Plea offer

The petitioner asserts in count two of the second amended complaint that his trial counsel failed to convey to him a plea offer, made by the pretrial judge, Judge Damiani, in March 2005.   With respect to this claim, the court finds the following facts:

At all times relevant to this claim, the petitioner was represented by public defender David Abbamonte.   Attorney Abbamonte was an experienced defense attorney having practiced in Bridgeport for many years and had participated in numerous pretrials presided over by Judge Damiani.

In March 2005, prior to trial and before the case was placed on a jury list, a pretrial was held in the chambers of Judge Damiani.   The state had not made any offers to the petitioner to resolve the case, prior to the March 2005 pretrial.   Again, the state did not make a plea offer at the pretrial.   However, the court made an offer of fourteen (14) years suspended after seven (7) years incarceration followed by twenty (20) years probation to resolve all charges if the petitioner accepted the court's offer that day.   Supervisory Assistant State's Attorney Howard Stein and petitioner's trial counsel were present at the pretrial, as well as other attorneys that had pretrials before Judge Damiani in other cases.   The petitioner was not present during the pretrial in Judge Damiani's chambers, but was in the courthouse, having made bail.   Attorney Stein had no objection to the Court's plea offer.

After Judge Damiani made his offer, Attorney Abbamonte left the Judge's chambers, presumably to discuss the offer with the petitioner.   Since the offer was open for that day only, it may be presumed from the general way that Judge Damiani conducted pretrials that he expected a response to his offer that day.   A short time later, Attorney Abbamonte returned to Judge Damiani's chambers and indicated that the petitioner had no interest in the offer and wished to proceed to trial.   The case was then placed on the trial list.   It was Judge Damiani's practice to place cases on the trial list after the last offer was rejected by the defendant.

The petitioner was aware that his exposure on the charges was thirty years.

It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of a criminal proceeding.  Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.  Baez v. Commissioner of Correction, 34 Conn.App. 236, 242–43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994).

The United States Supreme Court has recently held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the Sixth Amendment right to effective assistance of counsel.  Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010);  Missouri v. Frye, 566 U.S. (2012);  Lafler v. Cooper, 566 U.S. (2012).  “In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial is almost always a critical point for a defendant.”  Missouri v. Frye, supra, 566 U.S. The decision to plead guilty is “ordinarily the most important single decision in any criminal case.”  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, 2010, cert. granted 297 Conn. 912, 995 A.2d 954 (2010), quoting Boria v. Keane, 99 F.3d 492, 496–97 (2d Cir.1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).  “Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome.   A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial ․ Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981).”  Copas v. Commissioner of Correction, 234 Conn. 139, 153–54, 662 A.2d 718 (1995).

Because the plea bargaining process is a critical stage in a criminal proceeding, “criminal defendants require effective assistance of counsel during plea negotiations.”  Missouri v. Frye, supra, 566 U.S. Lafler v. Cooper, supra, 566 U.S. “Anything less ․ might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’  “ Missouri v. Frye, supra, 566 U.S. (internal quotations omitted).

In Missouri v. Frye, supra, 566 U.S., the United States Supreme Court held that:  “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”   When defense counsel allows an offer to expire without advising the defendant or allowing him to consider it, defense counsel does not render the effective assistance the Constitution requires.  Id.

“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.   Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.   To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.   Cf. Glover v. United States, 531 U.S. 198, 203 (2001) ( “[A]ny amount of [additional] jail time has Sixth Amendment significance”).”   Missouri v. Frye, supra, 566 U.S.

“In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.”  Id.

Here, like the petitioner in Missouri v. Frye, supra, the petitioner claims that his trial counsel was ineffective in that he failed to communicate the court's plea offer.   The court rejects this claim because the petitioner has failed to prove that his attorney did not communicate the Court's plea offer.   The only evidence presented to support this claim at the habeas trial was the petitioner's and his girlfriend's testimony, which the court did not find credible on this point.

The court credits the testimony of Supervisory Assistant State's Attorney Stein, who testified as to the manner in which Judge Damiani conducted pretrials in 2006.   Stein participated in the pretrial discussions in Judge Damiani's chambers in this case and testified that after Judge Damiani proffered his offer to resolve the case that day, the petitioner's counsel left to discuss the matter with the petitioner.   Attorney Abbamonte returned a short time later and indicated that the petitioner was not interested in the offer and, therefore, wanted to proceed to trial.   The case was then placed on the trial list.   Although Stein was not present during Abbamonte's conversations with the petitioner regarding the offer, when Abbamonte returned to Judge Damiani's chambers, he indicated that the petitioner had interest in the court's offer to resolve the case.   The case was then placed on the trial list.   From these facts, together with the fact that the Attorney Abbamonte was an experienced public defender, the court finds that Attorney Abbamonte conveyed the court's offer to the petitioner and that the petitioner rejected it.

Accordingly, the court concludes that the petitioner has failed to prove his claim in count two that his trial counsel did not convey Judge Damiani's plea offer to him.   Count two of the petition is, therefore, denied.

B. Count One—Trial Claims

Count one of the petition asserts that trial counsel was ineffective in conducting the trial in a number of ways set forth above.   The standards the court must apply in determining these claims are well established.

To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “To satisfy the ‘performance prong,’ a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by Sixth Amendment.'  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom.   Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 667.

Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.  Strickland v. Washington, supra, 466 U.S. 687.   Ultimately, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 686.

When assessing trial counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689–90.   The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”  ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

The petitioner's first claim in count one of the second amended petition is that trial counsel “opened the door” to certain damaging evidence from a witness, which trial counsel had been successful in precluding.   The petition does not specify the nature of this damaging evidence and the petitioner's brief is equally vague.   However, when describing this claim in his posttrial brief, the petitioner refers to the Appellate Court decision in this case and therefore, the court presumes that the petitioner's claim relates to testimony of the victim's former boyfriend to substantiate the victim's testimony with regard to prior uncharged misconduct related to a prior sexual assault of the victim.  State v. Robles, supra, 103 Conn.App. 393.   According to the Appellate Court:

During trial, the state indicated that it intended to call S to testify regarding the circumstances surrounding his July 2003 argument with the victim but also intended to question S as a constancy of accusation witness with respect to the disclosures that the victim had made to him previously that the defendant had abused her sexually.   After a lengthy discourse with the court about the admissibility of the evidence under the constancy of accusation exception to the rule against hearsay, the state abandoned its request for permission to question S regarding the disclosure and agreed to limit the testimony to the July 2003 incident, which it did on direct examination.   On cross-examination, however, defense counsel inquired about the disclosure.   On redirect, the state then elicited further information about the details of the disclosure in which S testified that the victim had explained to him that the defendant had used Vaseline during the sexual assaults.   The state referred to S's redirect testimony in its closing argument.   See footnote 9. The defendant did not object either to the testimony elicited by the state on redirect examination of S or to the prosecutor's comments during closing argument.

(Footnotes omitted.)

Based on this procedural background, the Appellate Court found that trial counsel had “opened the door” to the introduction of this evidence on redirect examination by the State and in the State's closing argument, by asking questions about this matter on cross examination.   Because trial counsel is deceased, he did not testify at the habeas trial regarding his reason for inquiring about these matters on cross examination.   However, the Appellate Court proffered a possible reasonable strategic reason for trial counsel to have decided to question the witness about prior misconduct on cross examination:

Here, the defendant successfully prevented the state on direct examination from introducing testimony from S about the victim's disclosure that the defendant had sexually assaulted her.   On cross-examination, the defendant then sought, however, to introduce selected portions of the excluded evidence for his own advantage.   Specifically, the record reveals that the defendant sought to attack the victim's credibility by highlighting the fact that she made vague disclosures to S about the sexual assaults and that her disclosures were limited to incidents that occurred outside of the time frame of the charged offenses, thereby creating a misleading impression.   Moreover, in closing argument, defense counsel also sought to capitalize on the vagueness of the victim's disclosures to S.

State v. Robles, supra, 103 Conn.App. 396–7 (footnotes omitted).

While the petitioner introduced the testimony of an expert witness to opine on this issue, such testimony was not sufficient to overcome the presumption of competence or to prove this claim that trial counsel's strategy in introducing this evidence on cross examination to attack the victim's credibility was unreasonable.   An attorney's line of questioning of a witness is a tactical decision.  Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 770, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).   The court will not second guess a trial attorney's strategic trial decisions.

Nor has the petitioner established prejudice as to this claim of “opening the door.”  “[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.   Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways.   Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect ․ [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors ․ To establish prejudice, the petitioner must show that as a result of that [deficient] performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in [the] appeal.”  (Citation omitted;  internal quotation marks omitted.)  Nieves v. Commissioner of Correction, 51 Conn.App. 615, 621, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).”  Gibson v. Commissioner, supra, 118 Conn.App. 875.

Evidence of prior acts of the petitioner toward the victim had been introduced to the jury through other witnesses, which undermines the petitioner's claim that somehow the outcome of the trial would have been different had trial counsel not opened the door to additional evidence on this point, by questioning a witness about the petitioner's prior bad acts on cross examination.   Accordingly the petitioner has not established prejudice.

Next, the petitioner claims, again vaguely, that trial counsel failed to “address and preserve for appeal the evidentiary issue of consciousness of guilt.”   In his post-trial brief, the petitioner states that trial counsel “failed to rebut the consciousness of guilty [sic] charge.”   The court presumes that this claim stems from the findings in the Appellate Court decision that trial counsel failed to object to, and therefore preserve for appeal, questions by the State to two witnesses, regarding the petitioner leaving the State for Poughkeepsie New York after the allegations against him had surfaced.   On direct appeal, the petitioner argued that the prosecutor improperly questioned the witnesses concerning flight because such questions had not basis in the evidence and that such evidence implied consciousness of guilt.  State v. Robles, supra, 103 Conn.App. 383.   In response to the State's questions, the witnesses denied that the petitioner fled the State.

As to this claim, the Appellate Court found that:

The defendant has referred to nothing in the record to indicate that the state used the purported inference of flight in closing argument, and no consciousness of guilt instruction was requested.   Essentially, the defendant argues that it was improper for the prosecutor to have questioned the witnesses about the defendant's flight from the state because the trial witnesses denied that the event occurred, and, therefore, there was no evidence that it occurred.

State v. Robles, supra, 103 Conn.App. 391 (footnotes omitted).

There was no evidence presented at the habeas trial as to why trial counsel did not object to the prosecutor's questions regarding the petitioner leaving the State.   It is certainly possible that since the witnesses denied that the petitioner fled the state that trial counsel saw no reason to object to the State's questions.   The petitioner has not established that trial counsel's conduct in failing to object to questions regarding petitioner's flight was deficient.  Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009) (to show objectively unreasonable decision by trial counsel requires showing of no tactical justification for the course taken).

Nor has the petitioner established that he was prejudiced by trial counsel's failure to object to the prosecutor's questions regarding flight.   As the Appellate Court pointed out in its decision, while the questions were asked, the information was not used in any way by the State.   The state did not mention the issue during its closing argument nor was the jury instructed on this issue.   Moreover, the premise of the petitioner's appeal was that he did not flee, that there was no evidence that he did so, and that the witnesses denied the claim.   Accordingly, under such circumstances, the petitioner has not proved that the outcome of the trial would have been different had trial counsel objected to these questions regarding flight.

Accordingly, this claim is denied.

The following remaining claims can be easily disposed of because the petitioner did not produce any evidence to prove them at trial:  (1) that trial counsel failed to present evidence of the petitioner's employer or “address and preserve the flight issue”;  (2) that trial counsel failed to present as a witness the victim's former boyfriend or his mother;  (3) the jury instruction claim;  and (4) the claim related to the substitute information.¹

As to petitioner claims as to witnesses, the petitioner's expert witness testified generally that if such evidence existed and was helpful, it should have been introduced.   However, these witnesses did not testify at the habeas trial, and therefore, this court can make no finding as to what they would have testified to at trial and if that testimony could have impacted the result in this case.   The failure of the petitioner to offer evidence as to what particular witnesses would have testified to at trial is fatal to the petitioner's claim.  Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622–24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999);  Ostolaza v. Warden, 26 Conn.App. 758, 766–67, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

As to the petitioner's claims regarding the jury instruction and substitute information, the petitioner did not produce any evidence of these claims at trial, nor include any legal argument as to these claims in his post-trial brief.   Having failed to prove these claims, they are, therefore, denied.²

Conclusion

Accordingly, for all of the foregoing reasons, the petition is denied in its entirety.   So ordered.

Cobb, J.

FOOTNOTES

FN1. At trial, petitioner's expert testified that trial counsel should have objected to other unspecified evidence.   Such claims are not alleged in the petitioner's second amended petition and no motion oral or written was made by the petitioner to amend his petition to include additional evidentiary claims.   As a result, the court will not consider them.   Grant v. Commissioner of Correction, 121 Conn.App. 295, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010)..  FN1. At trial, petitioner's expert testified that trial counsel should have objected to other unspecified evidence.   Such claims are not alleged in the petitioner's second amended petition and no motion oral or written was made by the petitioner to amend his petition to include additional evidentiary claims.   As a result, the court will not consider them.   Grant v. Commissioner of Correction, 121 Conn.App. 295, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

FN2. Because the court has denied both counts of the petition it is unnecessary for the court to determine the respondent's special defense of laches..  FN2. Because the court has denied both counts of the petition it is unnecessary for the court to determine the respondent's special defense of laches.

Cobb, Susan Quinn, J.