Shapiro v. Hillside Village Condominium Assn., Inc.
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** VLADIMIR SHAPIRO ET AL. v. HILLSIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., ET AL. (AC 24629) Foti, Flynn and McLachlan, Js. Submitted on briefs September 16 officially released October 26, 2004 (Appeal from Superior Court, judicial district of New Haven at Meriden, Fischer, J.) John R. Williams filed a brief for the appellants (plaintiffs). Sean C. Connors and Rachel M. Segger filed a brief for the appellee (named defendant). Brock T. Dubin filed a brief for the appellees (defendant Alex Braylyan et al.). Opinion PER CURIAM. The plaintiffs, Vladimir Shapiro and Gina Shapiro, appeal from the judgment rendered in favor of the defendants, Hillside Village Condominium Assn., Inc. (Hillside), Alex Braylyan and David Braylyan, following a jury trial. On appeal, the plaintiffs claim that the trial court committed plain error when it allowed Hillside s counsel to make a missing witness argument to the jury, pursuant to General Statutes § 52-216c, concerning witnesses who had not been proven to be available to testify. We affirm the judgment of the trial court. The plaintiffs action arose out of injuries and damages sustained when Vladimir Shapiro was stabbed by an unknown assailant while attending a private party hosted by the Braylyans at the Hillside clubhouse in Hamden. The plaintiffs contend that the court made an obvious and egregious error by allowing counsel for Hillside to make an improper missing witness argument that tipped the balance between the conflicting testimony of Vladimir Shapiro and Alex Braylyan. Counsel for Hillside made the following statements in his closing argument: What is the best evidence? How do we learn what happened that evening? We learn through testimony of witnesses. We heard from [Alex Braylyan s friend] Gene Zeldon, we heard from Katie [Fedolova], we heard from [Vladimir Shapiro]. Did we hear from [Vladimir Shapiro s friend] Igor [Bedzietskiy]? Was Igor here? We don t even know Igor s last name, but I think we found it in the police report. It s referenced in the police report. We didn t hear from Igor. The guy [Vladimir Shapiro] went to the party with. Did we hear from [Vladimir Shapiro s friend] Arsen [Grigorian]? No. He wasn t around, he didn t testify. How about [Vladimir Shapiro s friend] Vladislav [Gorman]? Didn t hear from him either. Now, let s think about this, and I heard [the plaintiffs counsel say you should] use common sense, does it make sense. Take a minute, let s think about this. [Vladimir Shapiro] knows Igor, Vladislav, Arsen from prior I don t know what. Prior dinner in New York City. Prior picnic that Mrs. Shapiro was certain to tell us that it was a family picnic, but yet we don t know any of their last names. Mr. Shapiro says he has a good memory for things that matter. Well, heck, he remembered what he had for dinner at that New York City restaurant: shish cabob. But he can t remember any of the last names of the people he was with. Now, if it was ten people he was with and he remembered two last names or three last names, maybe you just know the people you talk to, but you don t remember any last names. None. You re sitting in a car with these people, you re going out to dinner with these people, you re going to a picnic with these people, you re speaking to them on the telephone, at some time you exchanged telephone numbers, but yet we don t know what their last name is. Does that make sense to you that you remember what you had for dinner, but you don t remember the people that you went to a party with, the people that you went to dinner with, the people that you went to a family picnic with, the people that after this incident you go to Eddie s Cafe two to four nights a week to learn their name? Mr. Shapiro stated he, I think he was conducting an investigation to find their last name. But he just scratched the surface when he spoke to these people. Does that make sense? The plaintiffs did not object to this argument at trial.1 Therefore, they ask for review under the plain error doctrine pursuant to Practice Book § 60-5. Review under 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. (Internal quotation marks omitted.) Nashid v. Andrawis, 83 Conn. App. 115, 119 20, 847 A.2d 1098, cert. denied, 270 Conn. 912, 853 A.2d 528 (2004). This case is not one of those truly exceptional situations that warrant plain error review. The judgment is affirmed. 1 The plaintiffs admitted in their brief that their claim on appeal is unpreserved because of their failure to object at trial. The court and counsel engaged in a colloquy on the issue of Hillside s ability to make a missing witness argument during closing arguments. The plaintiffs counsel stated to the court that although he did not believe an adverse inference was permissible in this case, if the court determined that the argument could be made, he would be able to make a countervailing argument to the jury. The plaintiffs did not specifically argue that the missing witnesses were not proven to be available. The court ruled that a sufficient offer of proof had been made for Hillside to meet the statutory requirements of General Statutes § 52-216c, and therefore, Hillside s counsel was allowed to make a missing witness argument to the jury.
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