State v. Rosario ( 2022 )

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STATE OF CONNECTICUT v. SIGFREDO ROSARIO
(AC 42827)
Bright, C. J., and Elgo and DiPentima, Js.
Syllabus
Convicted, following a jury trial, of the crime of larceny in the second degree,
the defendant appealed to this court. The defendant, a resident of a
condominium complex in Waterbury, became the president of the board
of directors of the condominium association. P, the treasurer of the
board of directors, became concerned about the association’s finances
and asked the defendant for financial information, which he failed to
provide. P examined the bank records of the association and noticed
that checks had been written from the association’s bank account to
the defendant and deposited in the defendant’s personal bank account.
The defendant explained that he made withdrawals from his personal
bank account for legitimate purchases for the condominium complex,
but admitted that he also used the funds for personal items. The defen-
dant’s sentence included probation with special conditions, including
the payment of restitution. On the defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that the trial court committed
plain error when it required him, as a special condition of probation,
to pay restitution, which was based on his claim that the court did not
first consider the factors enumerated in the applicable statute (§ 53a-
28 (c)): the court did consider the factors in § 53a-28 (c) (3), as it stated
in its second articulation that the defendant had an earning capacity
that would enable him to make restitution, and the court noted that, at
sentencing, the defendant stated that he was able to work and that he
was financially supported by his mother, and the court also considered
the rehabilitative effect on the defendant of paying restitution and the
impact on the victims.
2. The trial court did not abuse its discretion in denying the defendant’s
motion for an extension of time within which to begin making restitution
payments: the court granted the defendant an extension of time to begin
making restitution payments to six months after the original start date,
and, although the defendant claimed that he was not provided with
sufficient time to generate income, the court found that the defendant
had a responsibility to find alternative ways to earn funds to make the
restitution payments.
3. The defendant could not prevail on his unpreserved constitutional claim
that the trial court violated his due process right to a fair and impartial
trial when it questioned him and two of the state’s witnesses, H and P:
the court’s questioning of H, a detective, was not inappropriate because
the court stated that its questions were intended to clarify H’s testimony,
and the record appeared consistent with this purpose; moreover, the
court properly intervened to clarify the self-represented defendant’s
testimony, particularly in light of his inclusion of irrelevant material in
his testimony and his disruptive conduct, the fact that the court’s ques-
tions may have drawn attention to the strength of the state’s case did not
render those questions improper, the court’s questions did not suggest
anything about the credibility of any witnesses or advocate in favor of
a particular verdict, and the court’s questions did not prejudice the
defendant because the elicited facts were not truly in dispute; further-
more, the court did not act as an advocate for the state when it questioned
P regarding the defendant’s identity, as the court’s questions, viewed in
the context of the entire trial, did not prejudice the defendant or improp-
erly influence the outcome of the proceedings.
Argued October 12, 2021—officially released January 4, 2022
Procedural History
Substitute information charging the defendant with
the crime of larceny in the second degree, brought to
the Superior Court in the judicial district of Waterbury,
geographical area number four, and tried to the jury
before Crawford, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Joseph S. Danielowski, assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, J. The defendant, Sigfredo Rosario,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of larceny in the second degree in
violation of General Statutes §§ 53a-119 (1) and 53a-
123 (a) (2). On appeal, the defendant claims that the
court (1) improperly ordered that he pay restitution
without first considering the factors enumerated in Gen-
eral Statutes § 53a-28 (c), (2) abused its discretion in
denying his motion for an extension of time within
which to begin making restitution payments and (3)
violated his due process right to a fair and impartial
trial when it questioned him and two of the state’s
witnesses.1 We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant. The
defendant resided at the Lincoln Park condominium
complex in Waterbury and became the president of the
board of directors of the Lincoln Park condominium
association (association) in May, 2013. In November,
2014, Omayra Pizarro, the treasurer of the board of
directors of the association, became concerned about
the finances of the association and asked the defendant
for financial information related to her concerns. When
the defendant failed to provide such information,
Pizarro examined the bank records of the association
and noticed that checks had been written from the
association’s bank account to the defendant. Pizarro
shared her concerns with James Loughlin, the general
counsel for the association, and Loughlin asked the
defendant for an accounting, which the defendant
declined to provide.
Pizarro then contacted Detective Kyle Howles of the
Waterbury Police Department and provided him with
the association’s bank records and bylaws, which state
that no member of the board of directors shall receive
compensation from the association for acting as such.
Howles then contacted the defendant, who provided
Howles with his personal bank records. Howles’ investi-
gation revealed that thirteen checks, totaling $47,931.60,
had been written from the association’s bank account to
the defendant and had been deposited in the defendant’s
personal bank account. The defendant made withdraw-
als from that same personal bank account for legitimate
purchases for the condominium complex, as well as
for personal items such as gasoline, groceries, fast food,
mortgage payments and cell phone bills. The defendant
explained to Howles that he had placed the money into
his personal bank account because he needed cash to
pay for projects around the condominium, to pay day
laborers who only accepted cash and to negotiate better
prices with contractors; he did concede, however, that
there was no accounting, notes, or record of those
expenses. Howles did not include in his calculation of
personal expenses any withdrawals that possibly were
related to condominium improvements. Howles deter-
mined that the defendant had withdrawn ‘‘just short of
$20,000’’ from the subject bank account for expenses
that the defendant had acknowledged were personal.
The defendant testified at trial that he ‘‘took thirteen
checks for $47,131.60’’ from the association and that he
used $17,515.09 of that amount for personal expenses.
Following a jury trial, the defendant was convicted
of larceny in the second degree. The court, Crawford, J.,
sentenced the defendant to five years of imprisonment,
execution suspended, and five years of probation with
special conditions, including the payment of restitution
in the amount of $17,500, to be paid at a rate of $400
per month beginning in February, 2019. This appeal
followed.
The defendant filed a motion for stay of execution
of his probation, a motion for stay of the conditions of
his probation and a motion for extension of time to
start making the restitution payments, which motions
the trial court denied. The defendant filed a motion for
articulation on December 11, 2019, requesting that the
court articulate the basis, according to the factors in
§ 53a-28 (c), for its order of restitution. On January
8, 2020, the court issued an articulation in which it
referenced an excerpt of the transcript of a June 17,
2019 hearing on the defendant’s postverdict motions
for stay of execution of his probation, for stay of the
conditions of his probation and for an extension of time
to start making the restitution payments. The defendant
filed a second motion for articulation on January 23,
2020, requesting a further articulation as to the court’s
decision to impose restitution pursuant to § 53a-28 (c).
The court issued a second articulation on March 4, 2020,
explaining the factual and legal basis for its decision
to impose restitution. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims that the court committed
plain error when it required him, as a special condition
of probation, to pay restitution in the amount of $400
per month without first considering the factors enumer-
ated in § 53a-28 (c).2 He argues that the court had before
it no evidence that he had any income, assets or the
ability to generate enough income to pay $400 per
month in restitution. We are not persuaded.
‘‘Plain error review may be appropriate when a court
fails to follow or apply a statute that is clearly relevant
to the case. . . . Nevertheless, [r]eview under the plain
error doctrine is reserved for truly extraordinary situa-
tions where the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . [T]he core
of the plain error doctrine . . . concerns whether a
defendant can prevail on the merits of a claim, not
simply whether the claim can be reviewed. . . . Conse-
quently, [w]here a trial court’s action does not result
in any manifest injustice, a defendant’s claim under the
plain error doctrine does not warrant review.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Moore, 85 Conn. App. 7, 11, 855 A.2d 1006, cert.
denied, 271 Conn. 937, 861 A.2d 510 (2004).
Section 53a-28 (c) (3) provides in relevant part that,
‘‘[i]n determining the appropriate terms of financial res-
titution, the court shall consider: (A) The financial
resources of the offender and the burden restitution
will place on other obligations of the offender; (B) the
offender’s ability to pay based on installments or other
conditions; (C) the rehabilitative effect on the offender
of the payment of restitution and the method of pay-
ment; and (D) other circumstances, including the finan-
cial burden and impact on the victim, that the court
determines make the terms of restitution appropriate.
. . . The court shall articulate its findings on the record
with respect to each of the factors set forth in subpara-
graphs (A) to (D), inclusive, of this subsection. . . .’’
We conclude that the court’s remarks at sentencing,
combined with its second articulation, make clear that
the court considered the relevant factors in § 53a-28 (c)
(3) (A) through (D).3 In light of our determination that
the alleged error did not occur, we need not address the
defendant’s argument that § 53a-28 (c) (3) mandates that
the court articulate its findings on the record with respect
to the four factors in subparagraphs (A) through (D).
With respect to the factors enumerated in subpara-
graphs (A) and (B) of § 53a-28 (c) (3), which concern the
defendant’s ability to pay restitution and the defendant’s
financial resources and the burden restitution would
place on him, the court, in its second articulation, stated
that ‘‘[t]he defendant has an earning capacity that would
enable him to make . . . restitution.’’ The court further
elaborated that the defendant graduated from high
school, received a certificate from a Turbo Jet Flight
Engineer course, earned credits from two other pro-
grams, has experience in real estate, ‘‘can be of help
in the community in reviving vacant office buildings,’’
has computer skills, can work as a consultant related
to computers and has worked as a consultant from
2008 through 2015. The court also noted in that second
articulation that, at sentencing, in requesting probation,
the defendant stated that he has the ability to work and
further noted that the defendant is supported financially
by his mother.
The court also considered the rehabilitative effect on
the offender of paying restitution and the impact on
the victims pursuant to subparagraphs (C) and (D) of
§ 53a-28 (c) (3). At the sentencing hearing, the court
stated to the defendant: ‘‘[Y]ou knew you had no access
to the funds, and I didn’t know at what point you
decided that you were entitled to it, but . . . these are
hardworking people and I think it’s more important that
there be restitution.’’ In its second articulation, the court
explained that ‘‘[t]he victims here are the individual
condo unit owners who paid their condo fees to the
association so that those funds would be available to
pay the expenses connected with common ownership.
The defendant said he was really sorry and remorseful.
Therefore, the defendant making restitution would
make the victims whole, be an acceptance of responsi-
bility for his criminal conduct, and a step towards reha-
bilitation.’’ For the foregoing reasons and in light of the
fact that the court articulated its findings on the record
regarding the four factors in § 53a-28 (c) (3) (A) through
(D), we conclude that reversal under the plain error
doctrine is not warranted.
II
The defendant next claims that the court abused its
discretion by denying his motion for an extension of
time within which to begin making restitution pay-
ments. We are not persuaded.
We employ an abuse of discretion standard to this
claim. ‘‘When reviewing claims under an abuse of dis-
cretion standard . . . great weight is due to the action
of the trial court and every reasonable presumption
should be given in favor of its correctness . . . . In
determining whether there has been an abuse of discre-
tion, the ultimate issue is whether the court could rea-
sonably conclude as it did.’’ (Internal quotation marks
omitted.) State v. Francis, 338 Conn. 671, 679, 258 A.3d
1257, cert. denied, Francis v. Connecticut, U.S. ,
142 S. Ct. 292, 211 L. Ed. 2d 136 (2021); see also See
State v. Doriss, 84 Conn. App. 542, 548–49, 854 A.2d 48(court has broad discretion in imposing sentence), cert.
denied, 271 Conn. 922, 859 A.2d 581 (2004).
As previously stated, the court, at the December 14,
2018 sentencing hearing, ordered the defendant to make
restitution payments of $400 per month beginning in
February, 2019. On May 1, 2019, the defendant filed a
motion for extension of time to begin making restitution
payments. At a May 15, 2019 hearing on that motion,
the defendant stated that he had not made any payments
because the start date of February, 2019, did not provide
him with sufficient time and that he has been trying to
find ways to generate income in order to make the
restitution payments. The court noted that the defen-
dant failed to comply with the terms of probation and
that it had stated at the sentencing hearing that if the
defendant missed two consecutive payments, then the
matter could be referred for a violation of probation.
The court stated that further argument on the motion
would be heard at the next court date in order to provide
the then self-represented defendant with time to pro-
vide appropriate documentation.
At a June 17, 2019 hearing,4 the court denied the
motion for an extension of time but ordered the defen-
dant to start making restitution payments beginning on
August 1, 2019. The court noted that, other than pursu-
ing job prospects that were ‘‘highly unlikely’’ to materi-
alize, the defendant did not immediately look for ways
to generate income after having been sentenced in
December, 2018, and that the defendant had a responsi-
bility to find alternative ways to earn the funds to make
the restitution payments. In light of the foregoing,
including the extension of time to August 1, 2019, to
begin making restitution payments, which date was six
months after the original start date of February, 2019,
we conclude that the court’s denial of the motion for
extension of time, was not an abuse of its wide discre-
tion.
III
The defendant claims that the court violated his due
process right to a fair and impartial trial when it ques-
tioned him and two of the state’s witnesses, Howles
and Pizzaro, at trial. The defendant acknowledges that
his claim is unpreserved and seeks review pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015). Under Golding, ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served 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 magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . 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; footnote omitted.) State v. Golding, supra, 239–
40. The record is adequate for review and the claim,
which alleges a violation of a fundamental right, is of
constitutional magnitude. See, e.g., State v. Swilling,
180 Conn. App. 624, 633, 639, 184 A.3d 773 (claim that
court violated defendant’s right to due process by ques-
tioning witnesses was of constitutional magnitude),
cert. denied, 328 Conn. 937, 184 A.3d 268 (2018).
We begin with the following principles. ‘‘Due process
requires that a criminal defendant be given a fair trial
before an impartial judge and an unprejudiced jury in
an atmosphere of judicial calm. . . . In a criminal trial,
the judge is more than a mere moderator of the proceed-
ings. It is [the trial judge’s] responsibility to have the
trial conducted in a manner which approaches an atmo-
sphere of perfect impartiality which is so much to be
desired in a judicial proceeding. . . . Consistent with
[her] neutral role, the trial judge is free to question
witnesses or otherwise intervene in a case in an effort
to clarify testimony and assist the jury in understanding
the evidence so long as [the trial judge] does not appear
partisan in doing so. . . . One of the chief roles of the
trial judge is to see that there is no misunderstanding
of a [witness’] testimony. . . . A trial judge can do this
in a fair and unbiased way . . . [and an] attempt to do
so should not be a basis of error. . . . Whether or not
the trial judge shall question a witness is within [her]
sound discretion . . . [and] [i]ts exercise will not be
reviewed unless [s]he has acted unreasonably, or, as it
is more often expressed, abused [her] discretion. . . .
The trial judge can question witnesses both on direct
and cross-examination. . . . [I]t may be necessary to
do so to clarify testimony as [the judge] has a duty to
comprehend what a witness says . . . [and] to see that
the witness communicates with the jury in an intelligible
manner. . . . While no precise theorem can be laid
down, we have held that it is proper for a trial court
to question a witness in endeavoring, without harm to
the parties, to bring the facts out more clearly and to
ascertain the truth . . . and [intervene] where the wit-
ness is embarrassed, has a language problem or may
not understand a question. . . . Whe[n] the testimony
is confusing or not altogether clear the alleged jeopardy
to one side caused by the clarification of a [witness’]
statement is certainly outweighed by the desirability
of factual understanding. The trial judge should strive
toward verdicts of fact rather than verdicts of confu-
sion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Iban C., 275 Conn. 624, 651–52, 881
A.2d 1005 (2005). ‘‘Any claim that the trial judge crossed
the line between impartiality and advocacy is subject
to harmless error analysis.’’ State v. Burke, 51 Conn.
App. 328, 335, 723 A.2d 327 (1998), cert. denied, 248
Conn. 901, 732 A.2d 177 (1999).
Mindful of these principles, we first examine the
court’s questioning of Detective Howles and the defen-
dant. Howles testified to the following on direct exami-
nation. He became involved in the matter as a result
of Pizarro’s November, 2014 complaint concerning the
finances of the association. Following that complaint
and upon examining the defendant’s personal bank
records, he discovered that the defendant had deposited
into his personal account thirteen checks, totaling
$47,931.60, which had been written from the association
to the defendant and that the defendant had made with-
drawals from that same account for expenses related
to the condominium complex as well as for expenses
that the defendant had admitted to Howles were per-
sonal, such as for gasoline, groceries, fast food, mort-
gage payments and cell phone bills. Howles also testi-
fied that the defendant’s personal bank records showed
that the only deposits into the defendant’s bank account
were from the association, with the exception of
approximately $1200 to $1300. He further explained that
he only included in his calculation of the defendant’s
personal expenses those that could not possibly be
related to the improvement of the condominium com-
plex. The defendant had no questions for Howles.
Thereafter, the court stated that Howles needed to
‘‘clarify a couple of things’’ and proceeded to elicit the
following testimony from Howles: a phone call from
the treasurer of the association prompted Howles’
involvement; Howles did not recall when the defendant
became the president of the association; Howles had
examined the bank accounts of both the association
and the defendant from January until November or
December, 2014, during which time frame the defendant
was the president of the association; the defendant had
written checks from the association to his personal
bank account in his role as the president of the associa-
tion; approximately $1200 to $1300 was deposited into
the defendant’s personal banking account from sources
other than the association; the defendant had written
checks from the association to himself, and Howles
included in his calculation of personal expenses only
the withdrawals that could not be possibly related to
expenses for the condominium complex.
We cannot conclude, on the basis of the record, that
the court’s questioning of Howles was inappropriate.
The court stated that its questions were intended to
clarify certain points in Howles’ testimony, and the
record appears consistent with this stated purpose.
‘‘Unlike an appellate court, the trial court is able to
observe the testimony of witnesses firsthand and, there-
fore, is better able to assess the relative clarity—or lack
thereof—of any particular testimony.’’ State v. Gonza-
lez, 272 Conn. 515, 536, 864 A.2d 847 (2005). ‘‘[T]he
trial judge is free to question witnesses or otherwise
intervene in a case in an effort to clarify testimony and
assist the jury in understanding the evidence so long
as [s]he does not appear partisan in doing so.’’ (Internal
quotation marks omitted.) State v. Brown, 56 Conn.
App. 26, 29, 741 A.2d 321 (1999), cert. denied, 252 Conn.
927, 746 A.2d 790 (2000).
The defendant, who was the sole defense witness,
testified that he became the president of the association
in order to improve the association, that he used his
personal bank account to fund projects for the associa-
tion and for personal expenses, that he personally did
work to improve the grounds of the condominium com-
plex, that the association owed him $4558.09 for damage
to his condominium unit that the association had been
reimbursed through an insurance claim, that he wrote
thirteen checks totaling $47,131.60 from the association
to himself in 2014, and that he used $17,515.09 of that
amount for personal expenses. Following the defen-
dant’s redirect testimony, the court, through its ques-
tions, elicited the following responses from the defen-
dant: his bank account was ‘‘mixed, business and
personal’’; he began writing checks to himself from the
association’s account in February, 2014; the associa-
tion’s bank account was electronic and did not require
a signature, but he signed the checks in order to cash
them; the entire $47,931.60 that he deposited from the
association’s account to his personal bank account was
spent to benefit the association and that he reimbursed
himself $17,515.09 that he believed was owed to him,
including $5000 in relation to a lawsuit against the asso-
ciation that he had filed and withdrew concerning an
insurance payment to the association.
Relevant to our analysis, we also note that, during
the self-represented defendant’s narrative testimony on
the third day of trial and outside the presence of the
jury, the court warned the defendant that he had been
told ‘‘time and time again’’ that he could not make
comments or give his opinion of the evidence, that
he was including ‘‘a lot of irrelevant material’’ in his
testimony and that the court did not see any good faith
on his part. The court noted that the defendant had
become disruptive in terms of how he chose to conduct
himself.5
Under these circumstances, we cannot conclude that
the court abused its discretion in intervening to clarify
the defendant’s testimony, particularly in light of his
inclusion of irrelevant material in his testimony and his
disruptive conduct. ‘‘It is appropriate for the trial judge
from time to time to intervene in the conduct of a case.
Thus, when it clearly appears to the judge that for one
reason or another the case is not being presented intelli-
gibly to the jury, the judge is not required to remain
silent. On the contrary, the judge may, by questions to
a witness, elicit relevant and important facts.’’ (Internal
quotation marks omitted.) State v. Fernandez, 198
Conn. 1, 11, 501 A.2d 1195 (1985). The court’s ques-
tioning of the defendant, whose testimony lacked clar-
ity, reflected a reasonable and impartial attempt to clar-
ify his testimony to assure that the witness
communicated to the jury in an intelligible manner.
Such an attempt should not be a basis of error. See
State v. Gonzalez, supra, 272 Conn. 535–36. ‘‘Whe[n]
the testimony is confusing or not altogether clear the
alleged jeopardy to one side caused by the clarification
of a [witness’] statement is certainly outweighed by the
desirability of factual understanding.’’ (Internal quota-
tion marks omitted.) Id., 536.
The defendant argues that the court’s questions to
him and to Howles related to testimony that was detri-
mental and central to his case. However, the fact that
the court’s questions may have drawn attention to the
strength of the state’s case does not render those ques-
tions improper. See State v. Smith, 200 Conn. 544, 550,
512 A.2d 884 (1986) (court’s questioning of witness is
not necessarily improper merely because it draws atten-
tion to strengths or weaknesses of party’s case). The
court’s questions did not suggest anything about the
credibility of any witnesses, did not advocate in favor
of a particular verdict, or otherwise suggest that it
believed or disbelieved any particular version of the
events. See State v. Swilling, supra, 180 Conn. App.
644–45. Rather, the court impartially asked Howles and
the defendant to restate certain portions of their testi-
mony. Therefore, the questions served merely to clarify
their testimony for the jury. See State v. Gonzalez,
supra, 272 Conn. 537 (‘‘[a court’s] comments or ques-
tions for the purpose of clarifying . . . testimony are
permissible and often necessary’’ (internal quotation
marks omitted)), quoting State v. Mack, 197 Conn. 629,
641, 500 A.2d 1303 (1985).
Moreover, the court’s questions did not prejudice the
defendant because the relevant elicited facts were not
truly in dispute. The defendant testified before being
questioned by the court: ‘‘I took the $47,000 from the
condominium complex. I deducted the $17,515.09 that
I used for personal things, such as my mortgage, cable,
and blah, blah, blah, blah, blah, blah. At the end of that,
that leaves a balance of $30,416.51, which were used for
Lincoln Park condominium basics. Therefore, it clearly
illustrates that that account was being used for dual
purposes. Even though, now, it’s a major mistake, I
realize that now.’’ Furthermore, during its charge, the
court, Doyle, J.,6 issued the following curative instruc-
tion to the jury: ‘‘You should not be influenced by the
court’s actions during the trial in ruling on motions or
objections by counsel, or in comments to counsel, or
in questions to witnesses, or in setting forth the law in
these instructions. You are not to take any actions by
the court, either Judge Crawford or myself, as . . .
any indication of our opinion as to how you should
determine the issues of fact.’’ ‘‘Our appellate courts
have always given great weight to curative instructions
in assessing claimed errors . . . especially in assessing
a defendant’s claim of prejudice.’’ (Citations omitted;
internal quotation marks omitted.) State v. Brown,
supra, 56 Conn. App. 29–30.
Finally, the defendant argues that, in the court’s ques-
tioning of Pizarro regarding the defendant’s identity, it
acted as an advocate for the state when it asked her
to identify the defendant in the courtroom. During the
prosecutor’s redirect examination of Pizarro, the court
engaged in the following colloquy with Pizarro:
‘‘The Court: Okay. I just have a couple of questions
. . . what I’m not clear on is: first of all, the person
you refer to as the president, Mr. Rosario, the defendant,
would you identify him for the record, please—that’s
not what I wanted to do. . .
‘‘[Pizarro]: Yeah, the person I was identifying as the
president is Mr. Rosario.
‘‘The Court: Just a second—no, is that person in the
courtroom?
‘‘[Pizarro]: Yes, he is.
‘‘The Court: All right. Would you identify him, please.
‘‘[Pizarro]: Mr. Rosario, the defendant.
‘‘The Court: I need—and you need to just describe
something that he’s wearing for the record.
‘‘[Pizarro]: He’s wearing a black suit with a bur-
gundy tie.
‘‘The Court: Okay. All right.
‘‘[Pizarro]: It looks black.
‘‘The Court: Thank you. Okay.’’
This exchange is somewhat troubling. Although
Pizarro had testified on direct examination about her
concerns regarding ‘‘Mr. Rosario’s’’ actions involving
the association’s finances, she did not, either in
response to questioning by the prosecutor or the defen-
dant, make an in-court identification of the defendant
as the person she knew to be ‘‘Mr. Rosario.’’ Thus, this
was not a situation in which the court was clarifying a
witness’ prior ambiguous in-court identification of the
defendant. See, e.g., State v. Swilling, supra, 180 Conn.
App. 641–42 (no due process violation when court ques-
tioned victim as to whether ‘‘the person she had identi-
fied as the perpetrator of the crimes, and who was
present in the courtroom, was the person she had pre-
viously identified as ‘Mr. Swilling’ ’’ because court was
clarifying victim’s prior ambiguous in-court identifica-
tion of defendant). The court’s questions in the present
case, however, when viewed in context of the entire
trial, did not prejudice the defendant.7
A review of the record reveals that, during the defen-
dant’s questioning of the state’s witnesses, he identified
himself as the person whose conduct was at issue. Dur-
ing the defendant’s cross-examination of Pizarro, which
preceded the court’s questioning of her, he asked: ‘‘On
November 18, you called the police department to say
that I misappropriated $52,931.60.’’ During his cross-
examination of Loughlin, who also testified prior to
Pizarro, the defendant inquired as to how Loughlin
became the counsel for the association, and Loughlin
explained, ‘‘[i]t was before I met you and it was
[Pizarro], I think, called me and asked if I was interested.
It was a call out of the—was it you who called?’’ The
defendant responded, ‘‘[i]t was me.’’ When the defen-
dant further inquired as to whether Loughlin had any
financial records of the association, Loughlin explained,
‘‘I do have that, that you generated as a summary of—‘‘
at which point the defendant interjected, ‘‘[t]hat I gener-
ated. But [what] I’m asking is something [independent]
of me. . . .’’ During the defendant’s recross-examina-
tion of Pizarro, the defendant identified himself as the
individual who allegedly wrote checks in his own name
from the association’s bank account. He asked: ‘‘When
was the first check that I wrote to myself?’’ Pizarro
explained that it was sometime in 2014, and that she
had provided the relevant information to the Waterbury
Police Department. Tremaine Williams, a resident of the
condominium complex, testified on direct examination
that, in 2014, he had performed work in relation to the
condominium complex and that his relationship with
‘‘Mr. Rosario’’ was positive until he received letters from
Pizarro that the accounts of the association were not
balanced. On cross-examination and in response to a
question from the defendant regarding the status of
their friendship prior to 2015, Williams responded:
‘‘[W]e were friends. I’m the one [who] voted you . . .
wanted [you] to be president.’’ The defendant then
asked whether Williams worked for him in 2014, and
Williams responded in the affirmative. In light of ques-
tions and responses such as these, we do not see how
the judge’s questioning of Pizarro regarding the defen-
dant’s identity could have improperly influenced the
outcome of the proceedings.
For the foregoing reasons, we conclude that the
defendant has failed to demonstrate that a constitu-
tional violation exists that deprived him of a fair trial.
Accordingly, his claim fails under Golding’s third prong.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the court abused its discretion in denying
his motion for stay of execution of his probation and his motion for stay
of the conditions of probation. At oral argument before this court, defense
counsel withdrew this claim. We note that this challenge is not reviewable
on appeal. See, e.g., Practice Book § 61-14; Clark v. Clark, 150 Conn. App.
551, 575–76, 91 A.3d 944 (2014) (declining to review claim that trial court
improperly lifted appellate stay because it was improperly presented for
resolution on appeal, rather than by motion for review).
2
The defendant also contends that the court’s first and second articula-
tions are inconsistent with each other because, at the June 17, 2019 hearing
on the defendant’s postverdict motions, which was incorporated by refer-
ence into the court’s first articulation, the court determined that there was
no documentation confirming the defendant’s income or employment but
the court in its second articulation had clarified that the defendant had an
earning capacity that would enable him to make the restitution payments.
Even if we were to assume that the court’s statements at the June 17, 2019
postsentencing hearing—that the defendant had not provided the court with
documentation of income or employment—were somehow relevant to the
defendant’s ability to pay restitution at the time of sentencing, those state-
ments are not inconsistent with the court’s statement in its second articula-
tion that the defendant has an earning capacity, which relates to an ability
to earn money in the future. Accordingly, because the actions that form the
basis for the claim of error did not occur, there can be no manifest injustice
warranting reversal of the judgment pursuant to the plain error doctrine.
See, e.g., State v. Moore, 85 Conn. App. 7, 11, 855 A.2d 1006 (claim under
plain error doctrine does not warrant review when trial court’s action does
not result in any manifest injustice), cert. denied, 271 Conn. 937, 861 A.2d
510 (2004).
3
We do not consider the court’s January 8, 2020 articulation, which refer-
enced the June 17, 2019 hearing on postverdict motions at which the defen-
dant testified, in this analysis. We instead confine our review to the evidence
before the court at the time of sentencing.
4
The defendant was represented by counsel at this hearing.
5
At the conclusion of the third day of trial, during which the defendant
testified, the court concluded that the defendant had forfeited the right to
continue to represent himself. The following day, however, the court vacated
its ruling and permitted the defendant to continue to represent himself with
standby counsel.
6
It appears from the record that Judge Doyle charged the jury because
Judge Crawford was unavailable. Neither party raises this as an issue on
appeal.
7
The record does not reflect whether the court’s questioning in this
instance played a role in the defendant’s decision to testify. Nevertheless,
as we discuss, the record reflects that the defendant’s identity was not in
dispute at this point.