Wright v. Commissioner of Correction

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Wright v. Commissioner of Correction
BILLY WRIGHT v. COMMISSIONER
OF CORRECTION
(AC 46631)
Moll, Suarez and Westbrook, Js.
Syllabus
The petitioner, who had previously been convicted of murder, appealed, on
the granting of certification, from the habeas court’s judgment denying
his petition for a writ of habeas corpus. The petitioner claimed, inter alia,
that the court improperly concluded that his second criminal trial counsel,
S, did not provide ineffective assistance of counsel when he made a decision
not to present the testimony of G, the petitioner’s former girlfriend and
mother of his child, who had offered alibi testimony at the petitioner’s first
criminal trial. Held:
The habeas court correctly concluded, in light of all of the evidence, that S
made a reasoned, strategic choice, after a thorough investigation, not to pre-
sent both an alibi defense and a misidentification defense, as S investigated
G as an alibi witness, considered her relationship to the petitioner, and
determined that she would not make a good witness, and, instead, focused
his defense on challenging the police investigation and the state’s identifi-
cation evidence.
The habeas court did not err in its determination that S’s conduct in failing
to present an alibi defense at the petitioner’s second criminal trial did not
constitute deficient performance.
The habeas court did not abuse its discretion in sustaining the objection
of the respondent’s counsel to a hypothetical question posed to an expert
witness for the petitioner related to S’s allegedly deficient performance,
as the question could not reasonably be separated from the essence of the
ultimate issue that was before the court, namely, whether the standard of
care required S to present the alibi defense.
Argued March 26, 2025—officially released February 10, 2026
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, Newson, J.; judgment denying
the petition, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.

Wright v. Commissioner of Correction
Vishal K. Garg, for the appellant (petitioner).
Christopher A. Alexy, senior assistant state’s attor-
ney, with whom, on the brief, was John P. Doyle, state’s
attorney, for the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Billy Wright, appeals,
following the granting of his petition for certification
to appeal, from the judgment of the habeas court deny-
ing his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court improperly
(1) concluded that his second criminal trial counsel made
a reasonable strategic decision not to present an alibi
defense and (2) excluded expert testimony at the habeas
trial related to his second criminal trial counsel’s alleg-
edly deficient performance. We affirm the judgment of
the habeas court.
The following facts as set forth previously by this court
in the petitioner’s first habeas appeal and procedural
history are relevant to this appeal. “The petitioner was
originally tried in 2010 for the April 27, 2008 murder of
Ronald Bethea in violation of General Statutes § 53a-54a
(a). . . . The murder occurred outside of the Cardinal’s
Club in New Haven at approximately 1:47 a.m. . . . The
trial court declared a mistrial after a hung jury, and a
retrial took place in 2011. . . . At the second trial, the
jury found the petitioner guilty of murder, and the court
imposed a sentence of sixty years of imprisonment.1 . . .
“The petitioner initiated [his first] habeas action, and,
on March 1, 2018, he filed an amended petition [(opera-
tive petition)] that contained four counts. Only the first
1 On direct appeal, this court reversed the judgment of conviction,
concluding that the trial court improperly restricted the degree of
cross-examination of certain police officers regarding the adequacy of
the investigation. State v. Wright, 152 Conn. App. 260, 261, 96 A.3d
638 (2014), rev’d, 322 Conn. 270, 140 A.3d 939 (2016). Our Supreme
Court reversed the judgment of this court and remanded the case to this
court with direction to render judgment affirming the judgment of the
trial court. State v. Wright, 322 Conn. 270, 291, 140 A.3d 939 (2016).

Wright v. Commissioner of Correction
count, in which the petitioner alleged ineffective assis-
tance of his criminal trial counsel, Richard Silverstein,
for, inter alia, failing to present an alibi defense at his
second criminal trial, is relevant to this appeal. With
respect to this claim, the petitioner alleged that a ‘fun-
damental difference between the first and second trials
was that [Silverstein] did not pursue an alibi defense
and did not produce evidence which established an alibi
defense which had been produced at the first trial. An
inference can be drawn that, but for trial counsel’s fail-
ure to produce an alibi defense and evidence in support
of an alibi defense, the result of the petitioner’s second
trial would have been different.’
“A trial on the petitioner’s habeas petition was held
on July 12 and August 30, 2018, and January 11 and
February 28, 2019. The petitioner presented multiple
witnesses. Stephanie Gonzalez, the petitioner’s girlfriend
at the time of the shooting and the mother of his child,
testified in a manner consistent with her testimony at
the petitioner’s first criminal trial. She stated that, on
the night the victim was shot, she got home between
11:30 p.m. and 12 a.m. after picking up their son from
her grandmother’s house. When she arrived home, the
petitioner was asleep in their apartment. She further
explained that she slept in the same bed as the petitioner
and woke up a few times when her son woke up, ‘around
3, 4 then around, like, 6, 7 [o’clock] in the morning.’ Each
time she woke up, the petitioner was still asleep in their
bed. She further testified that she met with Silverstein
about testifying at the petitioner’s second criminal trial.
When she arrived at Silverstein’s office on the morning
she planned to testify, however, he told her she would
not have to testify because ‘[h]e felt like he had a strong
case and he didn’t need me . . . .’
“Attorney Jeffrey Kestenband testified as a criminal
defense expert. In this capacity, he opined ‘that reason-
ably competent trial counsel would have called . . . Gon-
zalez to testify as an alibi witness at the second trial.’
He explained that Gonzalez’ testimony provided direct

Wright v. Commissioner of Correction
evidence that the petitioner had an alibi for the time of
the crime. Further, Kestenband testified that the lack of
a jury verdict in the first trial, as well as the fact that the
jury in the first trial asked to have Gonzalez’ testimony
read back during its deliberations, suggested that at least
some jurors credited her testimony. He emphasized the
importance of the hung jury, stating that ‘[i]t was six
to six, which would tend to suggest that the state had a
hard time proving its case, and when you also consider
the fact that [Gonzalez] not only provided evidence that,
if credited, would have established that [the petitioner]
was not guilty, but that she was the only witness called
by the defense. That is really important information to
consider when deciding how to defend [the petitioner] at
the second trial.’ . . . Kestenband also opined that there
was a reasonable probability that a different outcome
would have occurred in the petitioner’s second trial if
Silverstein had called Gonzalez and presented an alibi
defense. On cross-examination, Kestenband admitted
that it was possible that the jurors from the first trial
did not credit Gonzalez’ testimony, and, instead, found
that the state had not proven its case beyond a reasonable
doubt. However, he also stated that, ‘when I consider
evidence as an expert and analyze it that way, I’m not
really focusing on possibilities because almost anything
is possible. I’m focused on reasonable probabilities, and
while [I] acknowledge that it’s possible, I find it unlikely
that it’s reasonably probable that that occurred.’
“Silverstein testified that his defense theory was to
show that the police had conducted a flawed and incom-
plete investigation, and he stated that he ‘had to change
it up’ from the defense presented in the first trial because
he was ‘not gonna try the same case that didn’t result in a
not guilty.’ Silverstein also attacked the state’s identifi-
cation evidence against the petitioner during the second
criminal trial. He believed that the jury in the first trial
had voted eleven to one or ten to two in favor of convict-
ing, and stated that he had ordered the transcripts of
the first trial only through closing arguments, because
‘anything after the closing argument I’m not interested

Wright v. Commissioner of Correction
in . . . .’ After he was informed that the hung jury actu-
ally was divided six to six, Silverstein said that would
not change how he handled the petitioner’s defense.
Silverstein explained that he did not recall speaking to
Gonzalez during the petitioner’s trial but also testified
that he reviewed her testimony from the first trial and
‘didn’t find her credible and didn’t think she’d do a good
job, and I didn’t think she did a good job during the first
case . . . .’ He believed that, if Gonzalez had been credible
at the first trial, the jury would have returned a not guilty
verdict. He further explained that he listed Gonzalez
as a potential witness, served her with a subpoena, and
informed the trial court that he intended to call her as
a witness in order to keep the prosecutor ‘off balance as
much as possible’ even though he ‘had no intention of
doing it . . . .’
“On October 25, 2019, the habeas court issued a memo-
randum of decision granting the petition for a writ of
habeas corpus on the ground that Silverstein rendered
ineffective assistance of counsel when he failed to present
an alibi defense. It concluded that Silverstein rendered
deficient performance when he did not call Gonzalez as an
alibi witness and that this deficient performance preju-
diced the petitioner. The court vacated the petitioner’s
conviction and remanded the case for a new criminal trial.
“The court discussed the evidence presented at the
petitioner’s first and second trials, stating that there
were ‘several notable differences,’ with one being that
Gonzalez was not called as an alibi witness at the second
trial. The court then addressed the testimony presented
at the habeas trial. It discussed Gonzalez’ testimony
that the petitioner was asleep when she arrived home
and remained there until morning, as well as the fact
that Gonzalez was available to testify at the petitioner’s
second trial and had met with Silverstein the day he
was scheduled to present the defense. The court found
Gonzalez’ testimony to be credible. The court noted
Kestenband’s testimony and found his ‘analyses to be
persuasive.’ The court stated that Kestenband ‘con-
cluded that reasonably competent trial counsel would
have called Gonzalez as an alibi witness in the second

Wright v. Commissioner of Correction
trial. The impact that Gonzalez had on the first trial
weighs in favor of calling her to discredit or negate . . .
testimony in the second trial. According to Kestenband,
it was unreasonable for Silverstein to not call Gonzalez as
an alibi witness because no one identified the petitioner
as the shooter, but more than one witness placed the
petitioner at the [Cardinal’s] Club. Gonzalez’ testimony
would directly contradict the tenuous identification evi-
dence that placed the petitioner at the club. . . . Thus, it
was more important to call Gonzalez in the second trial
when compared to the first trial.’ . . .
“In its decision, the court emphasized the hung jury
in the petitioner’s first trial and the jury’s request for a
playback of Gonzalez’ testimony. The court stated that,
‘[a]lthough it is not possible to discern the individual
jurors’ credibility assessments, the only defense evidence
that contradicted the circumstantial evidence . . . was
the alibi supported by Gonzalez. Stated somewhat dif-
ferently, all twelve jurors in the second trial found the
tenuous circumstantial evidence sufficient to convict
the petitioner, yet one half of the first jury was not able
to conclude that the state had met its burden of proof in
light of the alibi provided by Gonzalez. Clearly, Gonzalez
had an impact on the outcome of the first trial.’ . . . The
court found that Silverstein made his assessments about
Gonzalez’ testimony ‘without the knowledge that the
jury was evenly divided in the first trial. Silverstein’s
oblique assessment of her alibi testimony was premised
on Silverstein’s overly myopic view that a hung jury
and [a] mistrial are not a defense victory.’ The court
discussed the variety of ways the defense can call into
question identification evidence and noted that Silver-
stein challenged both the identification evidence and the
police investigation. The court found that ‘attacking the
identification procedures themselves or the reliability of
eyewitness identifications may create reasonable doubt,
but not in the manner an alibi witness can.’ . . .
“The court stated that it ‘cannot determine any ratio-
nal basis for Silverstein to not present Gonzalez’ alibi
testimony, even if the state attempted to show that she

Wright v. Commissioner of Correction
was biased because she was the petitioner’s girlfriend
and mother of their child.’ The court further stated that,
‘[a]lthough the jury in the first criminal trial theoreti-
cally may have been unable to reach a unanimous verdict
solely because of disagreement as to the identification
evidence, which would require completely negating or
discounting Gonzalez’ testimony, the court does not find
such a scenario plausible. The fact that the jury requested
playback of Gonzalez’ testimony underscores that her
testimony influenced the deliberations and contributed
to the jury being unable to conclude that the state had
met its burden of proof beyond a reasonable doubt.’ . . .
“The court concluded that Silverstein rendered inef-
fective assistance of counsel, stating: ‘Given all of the
foregoing, the court concludes that [Silverstein] rendered
deficient performance by not calling [Gonzalez] as an
alibi witness . . . [and] that this deficient performance
prejudiced the petitioner. The jury did not hear alibi
evidence that previously had a discernible impact by
contributing to an evenly divided jury and mistrial.’ . . .
“On appeal, the respondent [the Commissioner of Cor-
rection] argue[d] that the habeas court incorrectly deter-
mined that the petitioner received ineffective assistance
of counsel because Silverstein did not present Gonzalez as
an alibi witness. Specifically, the respondent contend[ed]
that the court improperly based its ruling on its deter-
mination that one ‘half of the first jury was not able to
conclude that the state had met its burden of proof in
light of the alibi provided by Gonzalez . . . .’ ” (Citations
omitted; emphasis in original; footnote added; footnotes
omitted.) Wright v. Commissioner of Correction, 209
Conn. App. 50, 52–58, 267 A.3d 249 (2021), cert. denied,
341 Conn. 903, 268 A.3d 656 (2022).
This court concluded that “the [habeas] court erred
in concluding that Silverstein rendered deficient per-
formance when he did not call the alibi witness because
its determination was based on the improper assump-
tion that six jurors from the first trial were ‘influenced
[in] deliberations’ by the alibi witness and that the alibi

Wright v. Commissioner of Correction
testimony ‘contributed to the jury being unable to con-
clude that the state had met its burden of proof beyond
a reasonable doubt.’ In concluding that Silverstein’s
performance was deficient, the [habeas] court repeatedly
referenced its finding that the alibi witness’ testimony
was the cause of the hung jury at the petitioner’s first
trial. The [habeas] court determined that one ‘half of the
first jury was not able to conclude that the state had met
its burden of proof in light of the alibi provided by Gon-
zalez. Clearly, Gonzalez had an impact on the outcome
of the first trial.’ ” Id., 59.
In determining that the habeas court incorrectly con-
cluded that Silverstein rendered deficient performance,
this court noted that “ ‘[i]t is a settled doctrine in Con-
necticut that a valid jury verdict in a criminal case must
be unanimous. . . . A nonunanimous jury therefore can-
not render any finding of fact. . . . The jury’s inability
to reach a unanimous verdict . . . does not shed any light
on the jury’s assessment of the merits of the evidence
presented . . . .’ ” Id.
“Furthermore, as this court noted in Dieudonne v.
Commissioner of Correction, 141 Conn. App. 151, 162
n.6, 60 A.3d 385 (2013), appeal dismissed, 316 Conn.
474, 112 A.3d 157 (2015), ‘Yeager [v. United States,
557 U.S. 110, 121–22, 129 S. Ct. 2360, 174 L. Ed. 2d
78 (2009)] warns against guesswork in ascribing reasons
why the jury failed to reach a verdict . . . .’ ” Wright v.
Commissioner of Correction, supra, 209 Conn. App.
60. “Although decided in a different context, Yeager is
instructive on this issue. In Yeager, the United States
Supreme Court held that, ‘[b]ecause a jury speaks only
through its verdict, its failure to reach a verdict cannot—
by negative implication—yield a piece of information
that helps puts together the trial puzzle. . . . Unlike the
pleadings, the jury charge, or the evidence introduced by
the parties, there is no way to decipher what a hung count
represents. . . . A host of reasons—sharp disagreement,
confusion about the issues, exhaustion after a long trial,
to name but a few—could work alone or in tandem to

Wright v. Commissioner of Correction
cause a jury to hang. To ascribe meaning to a hung count
would presume an ability to identify which factor was at
play in the jury room. But that is not reasoned analysis;
it is guesswork.’ . . .
“Although the habeas court correctly noted that ‘it is
not possible to discern the individual jurors’ credibility
assessments,’ it then incorrectly determined that Gon-
zalez’ testimony had a positive impact on the jury when
it found that ‘[t]he jury did not hear alibi evidence that
previously had a discernible impact by contributing to
an evenly divided jury and mistrial.’ . . .
“After our thorough review of the record, we conclude
that the habeas court’s finding that Silverstein ren-
dered deficient performance by failing to call Gonzalez
as an alibi witness was inextricably intertwined with
its determination as to the reason for the hung jury in
the petitioner’s first trial. The reasons why there was a
hung jury are not ascertainable, and, therefore, it would
be ‘guesswork’ to attempt to determine such reasons. .
. . Accordingly, the judgment of the habeas court must
be reversed insofar as it was predicated on the court’s
improper assumption that one half of the members of the
jury in the first trial voted for an acquittal due to the alibi
testimony.” (Citations omitted; emphasis in original;
footnotes omitted.) Id., 60–62. This court reversed the
judgment of the habeas court only with respect to the
habeas court’s determination that Silverstein provided
ineffective assistance of counsel by failing to present
an alibi defense and remanded the case for a new habeas
trial on that issue. Id., 62.
The habeas court, Newson, J., held a new trial on Feb-
ruary 21, 2023. The habeas court heard testimony from
Gonzalez, Kestenband, Silverstein, and the petitioner.
In addition, the parties resubmitted all of the exhibits
that had been admitted during the first habeas trial and
submitted transcripts of that proceeding.
At the second habeas trial, Kestenband testified that,
at the first habeas trial, it was his opinion “[t]hat it

Wright v. Commissioner of Correction
constituted deficient performance to not call . . . Gonzalez
as an alibi witness at [the petitioner’s] second trial.” Kes-
tenband further testified that “counsel before a second
trial, especially if it’s new counsel . . . would have a duty
to review the first trial transcript. And obviously part
of that was . . . Gonzalez’ testimony at the first trial.
Based on a review of that testimony, I think virtually by
itself, given the fact that she was the only witness for
the defense and she was the only witness who provided
direct evidence on the question of guilt or innocence in
this case, that counsel had a duty to review that tes-
timony and consider strongly whether to call her as a
witness at the second trial.” He further testified that,
when he reviewed the record of the first criminal trial,
he noted that Gonzalez was “the only defense witness,
who . . . provided direct evidence on the question of guilt
or innocence and whose testimony came in relatively
unimpeached in a manner that I found to be credible,
then when you consider the fact on top of that that the
jury verdict at the first trial was split six to six and that
the jury had asked for a readback of . . . Gonzalez’ tes-
timony immediately before declaring itself deadlocked,
that bolstered, in my view, the idea that she should have
been called as a witness at the second trial.”
During his testimony, Kestenband admitted that the
question of presenting an alibi witness can be difficult and
that every case is different. According to Kestenband, a
jury could draw an adverse inference “if the alibi witness
is not credible that the defendant may have played a role
in securing a false alibi, which would tend to demonstrate
a consciousness of guilt, which, obviously, would make
it easier for the jury to convict the defendant.”
Consistent with his testimony at the first habeas trial,
Silverstein testified that he had reviewed the first crimi-
nal trial transcript and that his defense strategy was to
attack the adequacy of the police investigation. Silver-
stein further testified that he did not think Gonzalez’
testimony would have been helpful. According to him,
many attorneys “throw everything up there to see if [it]

Wright v. Commissioner of Correction
sticks,” but he prefers to “keep a case very small” and
stated that he wanted the jury in the petitioner’s second
trial to focus on the state’s identification evidence. He
explained that he did not present the alibi defense because
he does not like to present alibi defenses “unless [the
alibi witnesses are] third parties that have absolutely no
connection, no relationship.” He further testified that,
when “you put an alibi defense on there, it’s almost like
you’re switching the burden of proof . . . if [the jury does
not] believe [the alibi witness], I’ve made your case.”
According to Silverstein, “when you call one witness, it’s
an alibi witness, it’s uncorroborated, [and the petitioner
has] a relationship with that witness, it seems . . . to be
kind of [a] desperate move.”
On May 23, 2023, the court issued a memorandum
of decision in which it denied the operative petition for
a writ of habeas corpus. In rejecting the petitioner’s
claim of ineffective assistance of counsel, the court noted
“that the ineffective assistance of counsel inquiry is not
whether subsequent counsel, after having scoured the
record with the benefit of hindsight, can point to general
tactical or strategic mistakes made by trial counsel and
come up with different or ‘better’ ways to defend the case.
. . . The question is, under the facts and circumstances
then existing, whether the course of representation cho-
sen by trial counsel fell so far outside of ‘the [objective
standard of reasonable] competence demanded of attor-
neys in criminal cases’ that it deprived the defendant of a
fair trial . . . . So, the question the court has been tasked
to answer here is whether . . . Silverstein’s failure to
rely on . . . Gonzalez to provide an alibi defense for the
petitioner constituted ineffective assistance of counsel.”
(Citations omitted; emphasis omitted.)
The court noted that, for the second criminal trial,
Silverstein’s “objective was to challenge the identifica-
tion of the petitioner, primarily through challenging
the thoroughness of the police investigation.” The court
found that “Silverstein met with . . . Gonzalez, including
the morning of the last day of evidence, and considered

Wright v. Commissioner of Correction
the possibility of an alibi defense . . . . When asked why
he did not pursue the alibi, he gave the reason that he
does not like [to] use [an] alibi as a defense unless it is
unimpeachable because, notwithstanding that the jury
will be instructed that a defendant bear no affirmative
burden to establish that [he] was elsewhere . . . Silverstein
believes it places a spotlight on a defendant to ‘prove’
that he was definitely somewhere else, or the jury will
default that ‘he must have been there.’ He also reasoned
that the single individual—girlfriend, mother, family
member—alibi is too easy to impeach based on legitimate
question[s] about how far a person may be willing to go
to help a loved one.” (Footnote omitted.)
The court found that, “[i]n light of all of the evidence
in the present case . . . Silverstein’s decision to focus
on attacking the police investigation and identification
[evidence] and to not use the alibi defense was not unrea-
sonable.” In doing so, the court recognized that, “[w]hile
the state’s case as to the identity of the actual shooter
was entirely circumstantial, in that nobody testified to
actually seeing the petitioner shoot the victim, there
were multiple witnesses, if their testimony was accepted,
from which the jury could have concluded that the peti-
tioner was present at the [Cardinal’s] Club that evening
and [was] the actual shooter.” The court further noted
that “the alibi defense would have relied solely on the
credibility of the petitioner’s girlfriend.” (Emphasis in
original.) On the basis of its review of the transcripts of
the petitioner’s first criminal trial, which were admitted
as full exhibits at the second habeas trial, the court found
that “[Gonzalez] did not provide a statement to anyone
about the circumstances of the evening in question until
about nine months later. She was not able to offer any
independent corroboration [that] the two were together,
and she was impeached during the first trial not only for
knowingly violating the sequestration order by talking
with the petitioner about the case prior to testifying,
but for admitting that she and the petitioner had spe-
cifically discussed what other witnesses had testified to.
Also, although she claimed the two were no longer in a

Wright v. Commissioner of Correction
relationship at the time of the first trial, she admitted
she had regularly written, called and visited with the
petitioner for the two years he was incarcerated before
trial, including an in-person visit only a few days before
she testified.” (Footnote omitted.) The court specifically
found that “[o]ne of the express reasons . . . Silverstein
gave for not liking the girlfriend or family members alibi
defense that was not a ‘sure thing’ was the particular
complication that people in those types of relationships
are easily impeachable because of the ‘wouldn’t you do
anything’ to save a loved one idea.” The court concluded
that, “[u]nder these circumstances, [it could not] find
that it was unreasonable for . . . Silverstein to have made
the conscious decision not to complicate his defense with
a ‘soft’ alibi witness.”
Regarding the petitioner’s argument that Silverstein’s
performance was deficient for not presenting an alibi
defense in addition to attacking the identification evi-
dence, the court acknowledged that these two defenses
were not necessarily inconsistent with one another. The
court, however, found that “Silverstein gave a considered
reason for going only with an attack on the investigation
and identification of the petitioner.” It concluded that,
“[b]ased on the totality of the circumstances in this case,
it was not unreasonable for . . . Silverstein to [have]
decided that he was not going to contemporaneously
pursue an alibi defense.”
The court further found that “[t]his same reasoning
would also defeat the petitioner’s argument that . . . Sil-
verstein could have shifted his defense theory to include
the alibi once he realized that the trial judge was not
allowing him as much leeway to attack the police inves-
tigation and identification as [Silverstein] anticipated.”
(Emphasis in original.) The court noted that, “[w]hile .
. . Silverstein could have, at least in theory, made the
decision to call . . . Gonzalez once he realized the trial
court was going to limit the breadth of his attack on the

Wright v. Commissioner of Correction
identification of the petitioner, his line of attack was
already clearly before the jury.” (Emphasis in original.)
Ultimately, the court concluded that Silverstein “had a
choice between two defenses, neither substantially more
compelling than the other, and gave reasoned answers
as to why he chose one over the other under the circum-
stances he was presented with, which is entitled to great
deference.” Accordingly, the court concluded that the
petitioner failed to meet his burden of proving deficient
performance.
The petitioner filed a timely petition for certification
to appeal, which the court granted. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
On appeal, the petitioner claims that the habeas court
improperly concluded that Silverstein made a reasonable
strategic decision not to present an alibi defense. Specifi-
cally, the petitioner argues that he “alleged that counsel
was ineffective for failing to present the alibi because
counsel should have presented the alibi in addition to,
or instead of, the inadequate investigation defense.” He
further argues that “the habeas court treated the two
defenses as inconsistent and considered only whether
counsel’s decisions were reasonable in light of the pur-
ported inconsistency.” Lastly, he maintains that “rea-
sonably competent counsel would have reconsidered the
decision to present the alibi at around the time the state
rested its case . . . .” We are not persuaded.
We begin by setting forth our standard of review and
the following legal principles. “A criminal defendant’s
right to the effective assistance of counsel extends
through the first appeal of right and is guaranteed by
the sixth and fourteenth amendments to the United
States constitution and by article first, § 8, of the Con-
necticut constitution. . . . To succeed on a claim of inef-
fective assistance of counsel, a habeas petitioner must
satisfy the two-pronged test articulated in Strickland v.

Wright v. Commissioner of Correction
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)]. Strickland requires that a petitioner
satisfy both a performance prong and a prejudice prong.
To satisfy the performance prong, a claimant must dem-
onstrate that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice prong,
a claimant must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. . .
. Because both prongs . . . must be established for a habeas
petitioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong. . . .
“On appeal, [a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they [are] clearly erroneous, whether those facts consti-
tuted a violation of the petitioner’s rights [to the effec-
tive assistance of counsel] under the sixth amendment
is a mixed determination of law and fact that requires
the application of legal principles to the historical facts
of [the] case. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard. . . .
“Because our resolution of the present case turns on our
review of the performance prong, some additional expli-
cation of that prong is necessary. In any case presenting
an ineffectiveness claim, the performance inquiry must
be whether counsel’s assistance was reasonable consider-
ing all the circumstances. Prevailing norms of practice
as reflected in American Bar Association standards and
the like . . . are guides to determining what is reasonable.
. . . Nevertheless, [j]udicial scrutiny of counsel’s perfor-
mance must be highly deferential. It is all too tempting
for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . A fair assessment
of attorney performance requires that every effort be

Wright v. Commissioner of Correction
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 per-
spective 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 [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy. . . .
“Thus, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct. . . . At the same time,
the court should recognize that counsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment. . . .
“Inasmuch as [c]onstitutionally adequate assistance
of counsel includes competent pretrial investigation . .
. [e]ffective assistance of counsel imposes an obligation
[on] the attorney to investigate all surrounding circum-
stances of the case and to explore all avenues that may
potentially lead to facts relevant to the defense of the
case. . . .
“Nevertheless, strategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; [but] strategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable pro-
fessional judgments support the limitations on inves-
tigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable deci-
sion that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness

Wright v. Commissioner of Correction
in all the circumstances, applying a heavy measure of
deference to counsel’s judgments. . . .
“[T]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same
way. . . . The United States Supreme Court has cautioned
that a reviewing court, in considering whether an attor-
ney’s performance fell below a constitutionally acceptable
level of competence pursuant to the standards set forth
herein, must properly apply the strong presumption of
competence that Strickland mandates and is required
not simply to give [trial counsel] the benefit of the doubt
. . . but to affirmatively entertain the range of possible
reasons [that] counsel may have had for proceeding as
[he] did. . . . This strong presumption of professional
competence extends to counsel’s investigative efforts .
. . as well as to choices made by counsel regarding what
defense strategy to pursue. . . .
“It is [also] well established that the burden of estab-
lishing grounds for relief in a habeas corpus proceeding
rest[s] with the petitioner. . . . The petitioner, as the
plaintiff in a habeas corpus proceeding, bears a heavy bur-
den of proof. . . . [I]t is well established that a petitioner
in a habeas proceeding cannot rely on mere conjecture
or speculation . . . but must instead offer demonstrable
evidence in support of his claim. . . .
“It is equally well established that the [habeas] court, as
the trier of fact, [is] the sole arbiter of facts and credibil-
ity and [is] free to believe in whole or in part the [witness’]
testimony. . . . The court also [is] free to draw reasonable
inferences from that testimony when rendering judg-
ment.” (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) Owen v. Commissioner
of Correction, 234 Conn. App. 481, 494–99, 344 A.3d
158, cert. denied, 353 Conn. 923, 345 A.3d 812 (2025).
A
The petitioner first argues that “[c]ounsel’s deci-
sion to present the alibi is inseparable from counsel’s

Wright v. Commissioner of Correction
investigation into the merits of that defense.” He main-
tains that Silverstein had a duty to conduct an adequate
investigation into a criminal case. The petitioner further
contends that, as a result of Silverstein’s failure to order
the transcripts of any of the proceedings after closing
arguments, “he mistakenly believed that the jury had
split [eleven to one] in favor of a conviction. He also
was unaware of the jury note requesting a readback of
Gonzalez’ testimony immediately before the jury dead-
lock. . . . His decision to . . . not present Gonzalez was
premised on his belief that the hung jury in the first case
was unfavorable, which was based in turn on counsel’s
erroneous belief about the nature of the split. Rather,
because counsel believed that the jurors were mostly in
favor of conviction, he determined that he needed to
make significant changes to the defense.” This argument
ignores this court’s holding in Wright v. Commissioner
of Correction, supra, 209 Conn. App. 50.
In Wright, this court addressed the issue of Silver-
stein’s alleged deficient performance. This court con-
cluded that the first habeas court “erred in concluding
that Silverstein rendered deficient performance when he
did not call the alibi witness because its determination
was based on the improper assumption that six jurors
from the first trial were ‘influenced [in] deliberations’ by
the alibi witness and that the alibi testimony ‘contributed
to the jury being unable to conclude that the state had
met its burden of proof beyond a reasonable doubt.’ ” Id.,
59. As stated previously in this opinion, this court held
that, “[a]lthough the habeas court correctly noted that
‘it is not possible to discern the individual jurors’ cred-
ibility assessments,’ it then incorrectly determined that
Gonzalez’ testimony had a positive impact on the jury
when it found that ‘[t]he jury did not hear alibi evidence
that previously had a discernible impact by contribut-
ing to an evenly divided jury and mistrial.’ ” (Emphasis
omitted.) Id., 61. This court concluded that the habeas
court’s finding “that Silverstein rendered deficient per-
formance by failing to call Gonzalez as an alibi witness
was inextricably intertwined with its determination as

Wright v. Commissioner of Correction
to the reason for the hung jury in the petitioner’s first
trial. The reasons why there was a hung jury are not
ascertainable, and, therefore, it would be ‘guesswork’ to
attempt to determine such reasons. . . . Accordingly, the
judgment of the habeas court must be reversed insofar
as it was predicated on the court’s improper assump-
tion that one half of the members of the jury in the first
trial voted for an acquittal due to the alibi testimony.”
(Citation omitted.) Id., 62. This court remanded the
case for a new trial as to whether Silverstein rendered
ineffective assistance of counsel by failing to present an
alibi defense. Id.
A second habeas trial was conducted on February 21,
2023. At that trial, Silverstein testified that he reviewed
the transcripts from the first criminal trial and that his
strategy for the second criminal trial was to challenge
the state’s identification evidence by challenging the
adequacy of the police investigation. According to Silver-
stein, he did not think Gonzalez’ testimony was helpful.
Silverstein stated that, “when you call one witness, it’s
uncorroborated, [and the petitioner has] a relationship
with the witness, it seems . . . to be kind of [a] desperate
move.” Silverstein nevertheless spoke with Gonzalez and
issued a subpoena for her to testify at the second criminal
trial. See, e.g., Roberto A. v. Commissioner of Correc-
tion, 229 Conn. App. 104, 115, 325 A.3d 1192 (duty to
investigate alibi defense requires counsel to “make all
reasonable efforts to identify and interview potential
alibi witnesses” (internal quotation marks omitted)), cert.
denied, 350 Conn. 935, 327 A.3d 384 (2024). For those
reasons, Silverstein did not call Gonzalez as a witness. We
conclude that the habeas court correctly concluded that,
in light of all the evidence, Silverstein made a reasoned,
strategic choice, after a thorough investigation, not to
present Gonzalez as an alibi witness.
B
The petitioner next argues that the “habeas court
improperly concluded that counsel made a reasonable
strategic decision not to present both the alibi and the

Wright v. Commissioner of Correction
misidentification defense.” The petitioner contends that,
because the two defenses are complementary rather than
contradictory, no reasonable attorney would have decided
not to present the alibi defense. We disagree.
In its memorandum of decision, the habeas court noted
that, “[w]hile the petitioner is correct that the defenses
are not inherently contradictory, and could arguably
be considered complementary . . . this, again, is not the
question for the habeas court to answer. The question is
whether the alibi added so much that it was unreasonable
for . . . Silverstein to have left it out.” The court found
that Silverstein’s explanation that he likes to keep a case
“very small” was a “considered reason” for attacking only
the investigation and identification evidence presented
by the state. The court noted that, “[f]or seasoned trial
lawyers . . . this is a message often repeated: Juries like
consistency. They don’t like to feel like a lawyer is try-
ing to trick them. Pick an issue and ‘hammer it home’
as your ‘story’ to the jury. See also State v. Shabazz,
246 Conn. 746, 764, 719 A.2d 440 (1998) (‘[a]lthough
it is true that a defendant is legally permitted to raise
inconsistent defenses, when he does so a jury, applying
its common sense, is entitled to view with skepticism
the persuasiveness of all of the defenses’), citing State
v. Person, 236 Conn. 342, 359, 673 A.2d 463 (1996)
(Borden, J., concurring) (defendant’s presentation of
inconsistent defenses may be ‘self-penalizing . . . because
it will . . . encourage jury skepticism about his entire
defense’ . . .). Based on the totality of the circumstances
in this case, it was not unreasonable for . . . Silverstein
to decide that he was not going to contemporaneously
pursue an alibi defense.”
On appeal, the petitioner argues that, although the
court recognized that the alibi defense and the misiden-
tification defense were not inconsistent with each other,
the court treated them as such by relying on Shabazz and
Person. According to the petitioner, Shabazz and Person
are cases in which the defendants proffered inconsistent
defenses. The petitioner argues that the present case is

Wright v. Commissioner of Correction
“strikingly similar” to Foster v. Wolfenbarger, 687 F.3d
702 (6th Cir. 2012), cert. denied, 568 U.S. 1228, 133 S.
Ct. 1580, 185 L. Ed. 2d 576 (2013), in which “the . . .
[United States] Court of Appeals [for the Sixth Circuit]
found that an attorney who presented a misidentification
defense, but failed to present an alibi, was ineffective.”
The petitioner’s reliance on Foster is misplaced. In
Foster, the petitioner was charged with first degree mur-
der. Foster v. Wolfenbarger, supra, 687 F.3d 705. His
primary defense at trial was mistaken identification;
however, prior to trial, a potential witness sent a letter
to trial counsel claiming that the petitioner was at his
home from 2:15 to 6 a.m. on the day of the murder. Id.
Trial counsel spoke with the potential witness over the
telephone for roughly fifteen to twenty minutes. Id. The
witness was not called at trial, and the petitioner was
convicted of second degree murder. Id. The petitioner
brought a petition seeking a writ of habeas corpus in
the United States District Court for the Eastern Dis-
trict of Michigan raising a number of claims, including
ineffective assistance of trial counsel for the failure to
mount an alibi defense. Id., 705–706. At a hearing, trial
counsel testified that he found the potential alibi wit-
ness’ testimony to be “vague” and was concerned that
he was going to be a poor witness. Id., 707. “The district
court concluded that counsel’s ineffectiveness turned
not on whether trial counsel’s conclusion regarding the
[potential witness] was reasonable strategic judgment,
but rather on whether it was reasonable not to further
investigate possible support for an alibi defense in light
of the [potential witness’] testimony.” Id.
The United States Court of Appeals for the Sixth Cir-
cuit affirmed the District Court’s judgment, noting
that “trial counsel’s only investigation with regard to
the alibi defense was to question [the potential witness],
over the telephone, for approximately fifteen to twenty
minutes. Even crediting trial counsel’s conclusion that
[the potential witness] would make a poor witness, that
does not represent a full investigation of the alibi defense

Wright v. Commissioner of Correction
under the circumstances.” Id., 708. The court in Foster
further concluded that the “alibi defense was completely
consistent with, and in fact [complementary] to, trial
counsel’s theory of mistaken identification.” Id. It went
on to state that “this is not a situation where defense
counsel is required to choose between different avenues
and pick the theory of the case that counsel believed was
stronger. Instead, trial counsel chose not to investi-
gate an avenue that potentially could have bolstered the
defense that counsel was already pursuing.” Id.
By contrast, in the present case, as stated previously
in this opinion, Silverstein did investigate Gonzalez as
an alibi witness. Silverstein reviewed the transcripts of
the first criminal trial and determined that Gonzalez was
not helpful. He spoke with her and issued a subpoena for
her testimony at the second criminal trial. Moreover,
unlike in Foster, Silverstein considered Gonzalez’ rela-
tionship to the petitioner and determined that she would
not make a good witness because a family member alibi
witness is too easy to impeach on the basis of the legiti-
mate question about how far a person may be willing to
go to help a loved one. He made a reasonable strategic
decision, therefore, to challenge the police investigation
and the state’s identification evidence, and not to call
Gonzalez as an alibi witness. “[S]trategic choices made
after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable . . . .”
(Internal quotation marks omitted.) Balbuena v. Com-
missioner of Correction, 231 Conn. App. 289, 334, 332
A.3d 1008, cert. denied, 352 Conn. 905, 335 A.3d 845
(2025); see, e.g., id., 329–30 (rejecting claim that counsel
failed to investigate petitioner’s alibi defense when coun-
sel’s investigator spoke to witnesses and obtained state-
ments from them, and counsel made reasonable tactical
decision not to present alibi defense because witnesses’
stories were different and some were nonresponsive).
Accordingly, we reject the petitioner’s argument that
the habeas court improperly concluded that Silverstein

Wright v. Commissioner of Correction
made a reasonable strategic decision not to present both
the alibi and the misidentification defense.
C
Lastly, the petitioner argues, without citation to any
supporting authority, that “reasonably competent coun-
sel would have reconsidered the decision to present the
alibi at around the time the state rested its case, in light
of how the case had gone until that point.” Specifically,
the petitioner maintains that Silverstein “believed that,
at the time the state rested its case at the second criminal
trial, the petitioner was in a worse position than when
the state had rested its case at the first criminal trial.”
Therefore, the petitioner contends that, given how the
second criminal trial had progressed, Silverstein’s deci-
sion not to change strategy was deficient. We are not
persuaded.
As previously set forth in this opinion, “[o]ur review of
an attorney’s performance is especially deferential when
his or her decisions are the result of relevant strategic
analysis. . . . Thus, [a]s a general rule, a habeas petitioner
will be able to demonstrate that trial counsel’s decisions
were objectively unreasonable only if there [was] no . .
. tactical justification for the course taken. . . . [T]he
presentation of testimonial evidence is a matter of trial
strategy. . . . Defense counsel will be deemed ineffective
only when it is shown that a defendant has informed
his attorney of the existence of a witness and that the
attorney . . . without adequate explanation . . . failed to
call the witness at trial. . . . Furthermore, [t]he failure of
defense counsel to call a potential defense witness does
not constitute ineffective assistance unless there is some
showing that the testimony would have been helpful in
establishing the asserted defense. . . .
“[O]ur habeas corpus jurisprudence reveals several
scenarios in which courts will not second-guess defense
counsel’s decision not to investigate or call certain
witnesses or to investigate potential defenses, such as
when . . . counsel learns of the substance of the witness’

Wright v. Commissioner of Correction
testimony and determines that calling that witness is
unnecessary or potentially harmful to the case . . . . Thus,
an attorney’s choice to pursue a defense that focuses on
casting doubt on the state’s case rather than on calling
his or her own witnesses can be a reasonable choice. . . .
To support a defense argument that the prosecution has
not proved its case it sometimes is better to try to cast
pervasive suspicion of doubt than to strive to prove a
certainty that exonerates.” (Citation omitted; internal
quotation marks omitted.) Johnson v. Commissioner of
Correction, 166 Conn. App. 95, 140–41, 140 A.3d 1087
(2016), aff’d, 330 Conn. 520, 198 A.3d 52 (2019).
As previously noted in this opinion, Silverstein was
aware of Gonzalez’ testimony at the first criminal trial,
he spoke with her, and he subpoenaed her to testify at the
second criminal trial. He, however, ultimately decided
that her testimony was unnecessary. Silverstein made a
strategic choice to focus his defense on casting doubt on
the state’s case, rather than presenting a witness whom
he felt would not help the defense.
In reviewing counsel’s performance, we are required
to be highly deferential to counsel’s strategies and to
“indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” (Internal quotation marks omitted.) Spear-
man v. Commissioner of Correction, 164 Conn. App.
530, 564, 138 A.3d 378, cert. denied, 321 Conn. 923,
138 A.3d 284 (2016). Upon our review of the record, we
cannot conclude that the court incorrectly concluded
that Silverstein’s conduct in failing to present an alibi
defense at the petitioner’s second criminal trial did not
constitute deficient performance.
II
We next turn to the petitioner’s claim that the habeas
court improperly excluded expert testimony related to
Silverstein’s allegedly deficient performance. Specifi-
cally, the petitioner argues that the court improperly

Wright v. Commissioner of Correction
prevented Kestenband from testifying as to the standard
of care for criminal defense attorneys. We disagree.
The following additional facts and procedural history
are relevant to this claim. At the second habeas trial,
the petitioner’s counsel called Kestenband as a criminal
defense expert to testify about the reasonableness of
forgoing an alibi defense. During direct examination,
the petitioner’s counsel asked Kestenband the following
hypothetical question: “I’m going to offer a hypothetical
with a number of facts and do my best to get through
them. So, assume that trial counsel is retained to repre-
sent a criminal defendant who received a hung jury his
first trial and is facing a retrial. Counsel has the belief
that a mistrial is not a favorable outcome. He’s categori-
cally not interested in hanging the jury. Counsel reviews
the evidence and the general defense that was presented
at the first trial. Counsel is aware that the defense pre-
sented an alibi at the first trial in addition to challenging
that other identification evidence. Counsel is aware there
was a hung jury but is not aware of what the split was.
Counsel concludes that it’s important to do something
different or switch it up at the retrial. Counsel decides
to focus on—focus his defense at the new trial in an
attack on the adequacy of the police investigation into
the allegations against the client. Counsel also seeks to,
again, challenge some of that inferential identification
of the witness at the first trial.
“Now, at the retrial, counsel’s attempts to attack the
adequacy of the police investigation, his primary new
defense, are thwarted by objections by the state and
rulings by the trial court such that he’s mostly unable
to pursue that defense. He doesn’t get the jury instruc-
tion on the defense. [The] state does not call the key
witness that he would have been able to make the expert
on the investigation issue. Counsel has mixed success
with challenging the identification testimony at the new
trial. Counsel has the alibi witness ready and available
to testify but had already made the decision before the
trial to not present that witness in furtherance of his do

Wright v. Commissioner of Correction
something differen[t] approach. Would not presenting
the alibi under those circumstances be reasonable?”
The habeas court immediately instructed Kestenband
not to answer the question. The respondent’s counsel
then objected on the basis that the question called for a
legal conclusion. The court sustained the objection. The
petitioner’s counsel then asked Kestenband the following
question: “Does the standard of care require counsel to
present the alibi witness under those circumstances?” The
respondent’s counsel objected again on the same ground.
The following exchange then occurred between counsel
and the court:
“[The Petitioner’s Counsel]: I think he can offer an
opinion about . . . .
“The Court: His opinion as to the ultimate conclusion,
which is what I’m being asked to determine, which is
whether he should have presented the alibi witness, is
something an expert specifically cannot offer an opinion
on.”
On appeal, the petitioner argues that the court improp-
erly excluded testimony from Kestenband because the
hypothetical question that was objected to did not go
to the ultimate issue before the court. Specifically, he
asserts that “questions phrased in the form of a hypo-
thetical cannot constitute [an] ultimate issue question
because they are about hypothetical circumstances.”
Alternatively, he argues that “ultimate issue testimony
was permissible because it would assist the trier of fact in
resolving the issue in this case.”2 The petitioner further
contends that the court’s ruling was harmful because
“the expert’s answers to the long hypothetical questions
were the most important piece of evidence in the case—
2 The petitioner further argues that the court improperly sustained
the objection of the respondent’s counsel on the ground that the hypo-
thetical was “extremely long.” Because we conclude that the court did
not abuse its discretion in sustaining counsel’s objection on the ground
that the question constituted impermissible testimony on the ultimate
issue, we need not address this argument.

Wright v. Commissioner of Correction
they would have allowed the petitioner to establish the
standard of care, which is the heart of a claim of deficient
performance.” We are not persuaded.
We begin by setting forth our standard of review
and the following applicable legal principles. “The well
established standard of review for claims regarding the
admissibility of expert testimony is abuse of discretion.
. . . In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did . . . . Expert testimony
should be admitted when: (1) the witness has a special
skill or knowledge directly applicable to a matter in issue,
(2) that skill or knowledge is not common to the average
person, and (3) the testimony would be helpful to the
court or jury in considering the issues.” (Citation omit-
ted; internal quotation marks omitted.) State v. Ruocco,
151 Conn. App. 732, 745–46, 95 A.3d 573 (2014), aff’d,
322 Conn. 796, 144 A.3d 354 (2016).
It is equally well established that “a trial court’s evi-
dentiary 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.
. . . In reviewing claims that the trial court abused its
discretion, great weight is given to the trial court’s deci-
sion and every reasonable presumption is given in favor
of its correctness. . . . We will reverse the trial court’s
ruling only if it could not reasonably conclude as it did.”
(Internal quotation marks omitted.) Customers Bank
v. Tomonto Industries, LLC, 156 Conn. App. 441, 444,
112 A.3d 853 (2015). “To the extent [that] a trial court’s
admission of evidence is based on an interpretation of the
[Connecticut] Code of Evidence, our standard of review
is plenary. . . . We review the trial court’s decision to
admit evidence, if premised on a correct view of the law,
however, for an abuse of discretion.” (Internal quotation
marks omitted.) Id., 445.
Section 7-2 of the Connecticut Code of Evidence
provides in relevant part that a “witness qualified as
an expert by knowledge, skill, experience, training,

Wright v. Commissioner of Correction
education or otherwise may testify in the form of an
opinion or otherwise concerning scientific, technical or
other specialized knowledge, if the testimony will assist
the trier of fact in understanding the evidence or in deter-
mining a fact in issue.” Section 7-3 (a) of the Connecticut
Code of Evidence 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 . . . other than as provided in subsection (b), 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 the commentary to § 7-3
indicates, the rule adopts the common-law bar against
admission of a witness’ opinion on an ultimate issue in
a case. . . . [T]he phrase ‘ultimate issue’ is ‘not amenable
to easy definition.’ . . . [A]n ultimate issue [is] one that
cannot ‘reasonably be separated from the essence of the
matter to be decided [by the trier of fact].’ ” (Citations
omitted.) State v. Finan, 275 Conn. 60, 66, 881 A.2d 187
(2005), overruled on other grounds by State v. Gore, 342
Conn. 129, 269 A.3d 1 (2022).3
Section 7-4 of the Connecticut Code of Evidence pro-
vides: “(a) An expert may testify in the form of an opinion
3 In Gore, our Supreme Court held that “opinion testimony that relates
to the identification of persons depicted in surveillance video or photo-
graphs is not inadmissible solely because it embraces an ultimate issue.
Lay opinion testimony identifying a person in surveillance video or
photographs is admissible if that testimony meets the requirements of
§ 7-1 of the Connecticut Code of Evidence. That is, such testimony is
admissible if 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.’ Conn. Code Evid. § 7-1.
To the extent that this court’s decision in Finan is inconsistent with the
rule we adopt today, that decision and its progeny; see State v. Holley,
[160 Conn. App. 578, 127 A.3d 221 (2015)]; State v. Felder, [99 Conn.
App. 18, 912 A.2d 1054 (2007)]; are overruled.” (Footnote omitted.)
State v. Gore, supra, 342 Conn. 148–49.
Our Supreme Court in Gore, however, emphasized that “[its] narrow
holding today is limited to the context of identifications of persons
depicted in surveillance video or photographs. [It did] not address in
this appeal whether [it] should abandon the ultimate issue rule in its
entirety.” Id., 135 n.7. In response to Gore, the commentary to the Con-
necticut Code of Evidence § 7-3 (a) has been amended and now provides

Wright v. Commissioner of Correction
and give reasons therefor, provided sufficient facts are
shown as the foundation for the expert’s opinion.
“(b) The facts in the particular case upon which an
expert bases an opinion may be those perceived by or
made known to the expert at or before the proceeding.
The facts need not be admissible in evidence if of a type
customarily relied on by experts in the particular field
in forming opinions on the subject. The facts relied on
pursuant to this subsection are not substantive evidence,
unless otherwise admissible as such evidence.
“(c) An expert may give an opinion in response to a
hypothetical question provided that the hypothetical
question: (1) presents the facts in such a manner that
they bear a true and fair relationship to each other and
to the evidence in the case; (2) is not worded so as to
mislead or confuse the jury; and (3) is not so lacking in
the essential facts as to be without value in the decision
of the case. A hypothetical question need not contain all
of the facts in evidence.”
“[A]s a general rule, for a plaintiff to prevail in a legal
malpractice case in Connecticut, he must present expert
testimony to establish the standard of proper professional
skill or care.” (Internal quotation marks omitted.) Grimm
v. Fox, 303 Conn. 322, 326 n.5, 33 A.3d 205 (2012).
When a legal malpractice case is tried before a judge,
rather than a jury, however, “the trial judge need not
require the aid of expert testimony to understand the
requisite standard of care or the reasonableness of the
attorney’s actions in the context of that standard.” Id.,
331. Expert testimony may not be necessary because,
“[b]efore an expert may testify, the court must find that
the expert has knowledge beyond that exhibited by every
attorney simply as a result of membership in the legal
profession. The expert must possess special knowledge
that would help the trier of fact determine whether the
in relevant part: “The general bar to the admission of nonexpert and
expert opinion testimony that embraces an ultimate issue, with certain
exceptions, remains intact, following the decision in . . . Gore . . . .”
(Emphasis added.)

Wright v. Commissioner of Correction
defendant’s conduct was in accordance with the standard
of care applicable to attorneys under comparable circum-
stances. . . . [T]here may be no expert who knows more
about the practice of law before the Superior Court than
a judge of that court. Judges routinely rule on motions,
preside at pretrial settlement conferences, conduct jury
trials or sit as the trier of fact, among other things. . . .
A judge, therefore, is aware of the standard of care that
applies to attorneys practicing in the Superior Court.”
(Citations omitted; emphasis in original.) Dubreuil v.
Witt, 80 Conn. App. 410, 421–22, 835 A.2d 477 (2003),
aff’d, 271 Conn. 782, 860 A.2d 698 (2004).
In habeas cases, “[w]hile . . . expert testimony is not
necessarily required in every case raising a Strickland
inquiry . . . presenting expert testimony may help a
petitioner carry his burden in demonstrating deficient
performance.” (Citation omitted.) Ricardo R. v. Com-
missioner of Correction, 185 Conn. App. 787, 802 n.8,
198 A.3d 630 (2018), cert. denied, 330 Conn. 959, 199
A.3d 560 (2019). “[N]ot every petitioner claiming inef-
fective assistance of counsel need present expert testi-
mony, because as in some . . . professional malpractice
cases, the acts complained of will be such that the triers
of fact will be able to determine whether there has been
ineffective assistance of counsel without need of expert
testimony.” Evans v. Warden, 29 Conn. App. 274, 282,
613 A.2d 327 (1992).
In the present case, the ultimate issue before the court
was whether Silverstein’s decision not to present the
alibi testimony was reasonable based on the facts and
circumstances of the present case as of the time of coun-
sel’s conduct. The hypothetical question objected to by
the respondent’s counsel cannot reasonably be sepa-
rated from the essence of the ultimate issue that was
before the habeas court, namely, whether the standard
of care required Silverstein to present the alibi defense.
We therefore cannot conclude that the court abused its

Wright v. Commissioner of Correction
discretion in sustaining the respondent’s objection to the
hypothetical question posed by the petitioner’s counsel.
The judgment is affirmed.
In this opinion the other judges concurred.