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 STATE OF CONNECTICUT v. KENYON JOSEPH
               (AC 36908)
        DiPentima, C. J., and Gruendel and Prescott, Js.
   Argued September 24—officially released December 22, 2015

(Appeal from Superior Court, judicial district of New
  London, geographical area number twenty-one,
 Newson, J. [motion to present necessity defense];
            Strackbein, J. [judgment].)
  W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
  Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Michael L. Regan, state’s attorney,
and Thomas M. DeLillo, senior assistant state’s attor-
ney, for the appellee (state).
                         Opinion

   DiPENTIMA, C. J. The defendant, Kenyon Joseph,
appeals from the judgment of conviction, rendered after
his conditional plea of nolo contendere, of assault of a
correction officer in violation of General Statutes § 53a-
167c (a). On appeal, the defendant claims that the trial
court improperly denied his motion to assert the com-
mon-law affirmative defense of necessity at trial.
Because we conclude that this appeal does not meet
the conditions necessary to bring an appeal following
a conditional nolo contendere plea as provided by Gen-
eral Statutes § 54-94a and does not fall within the nar-
row exception for review set forth by our Supreme
Court in State v. Revelo, 256 Conn. 494, 503–504, 775
A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151
L. Ed. 2d 558 (2001), we decline to review it. Because
the defendant’s plea was conditioned on the right to
appeal, the judgment must be reversed and the case
remanded for further proceedings.
  The defendant entered a conditional plea of nolo
contendere to the state’s recitation of the following
facts. On September 10, 2012, the defendant was incar-
cerated at Corrigan-Radgowski Correctional Center
(Corrigan). During a briefing from the warden regarding
recreational time, the defendant became disruptive and
was escorted from the presentation. While walking back
to his cell, the defendant broke free from the escort
and approached the warden. At this point, the victim,
the deputy warden of the facility, intervened. The defen-
dant took a sharpened toothbrush and struck the deputy
warden in the face, causing a puncture wound to the
cheek that required medical attention.
   In an information dated February 11, 2014, the state
charged the defendant with assault of a correction offi-
cer in violation of § 53a-167c (a)1 and possession of a
dangerous instrument in a correctional institution in
violation of General Statutes § 53a-174a (a).2 Later that
month, the defendant filed a notice of intent to use the
defense of necessity.3 In his accompanying memoran-
dum of law, the defendant alleged the following facts
in support of his request to use the necessity defense.4
The defendant was serving a fifty-six year sentence and,
on March 25, 2010, was housed at Corrigan. During a
therapy session on that date, two inmates assaulted the
defendant. Following this attack, the defendant was
transferred to Northern Correctional Institution, and
then to MacDougall-Walker Correctional Institution
(MacDougall). The defendant suffered from mental ill-
ness and was traumatized by the attack at Corrigan.
Defense counsel stated that, when the defendant fears
for his safety, he ‘‘has a history of [disassociating] and
flying into uncontrollable and violent rages during
which he is not conscious of himself and is capable
of inflicting great harm upon others.’’ Following his
transfer back to Corrigan, the defendant feared for his
safety and that he would be attacked again. The defen-
dant informed employees at Corrigan that he wanted
to be transferred out and would do what was necessary
to accomplish this, including assaulting the staff. On
September 10, 2012, the defendant went into a ‘‘[disasso-
ciated] rage’’ and assaulted the deputy warden.
  On April 7, 2014, the court held a hearing on the
defendant’s motion to present the defense of necessity.
Following the argument of defense counsel, the prose-
cutor contended that the defendant had failed to meet
his burden of establishing the three elements of that
defense to warrant its use in this case. The court agreed
with the prosecutor. It denied the defendant’s motion,
ruling that he was prohibited from offering evidence
regarding the necessity defense.5
   On April 21, 2014, the defendant withdrew his prior
plea of not guilty and entered a plea of nolo contendere.
Prior to entering the plea, defense counsel stated the
following: ‘‘All right. It’s a plea of nolo contendere,
reserving the right to appeal the following issue, which
is whether the trial court correctly ruled, on April 7,
2014, that the defendant had not made a sufficient show-
ing to entitle him to use the defense of necessity.’’ The
prosecutor responded as follows: ‘‘I have no objection
to the plea entering in this fashion, but the state does
not concede that there is any merit to the appeal, nor
does the state concede that the defendant is even enti-
tled to take an appeal on this issue, so I don’t want
counsel to be misled into believing that by accepting
the plea, somehow the state acknowledges that there
is a valid appealable issue here, or that he’s entitled to
take an appeal of this particular issue.’’
  On the plea form signed by the defendant, he filled
out the conditional plea of nolo contendere section.6
After a canvass,7 the court accepted the defendant’s
plea. The court did not indicate whether a dispositive
ruling had been made in the case and left that section
of the form blank.8 In accordance with the plea
agreement, the court sentenced the defendant to two
years incarceration, to be served consecutively to his
current sentence.
   The defendant filed the present appeal on May 30,
2014. On December 30, 2014, the state moved for per-
mission to file a late motion to dismiss, which we
granted. The state then filed its motion to dismiss, claim-
ing that the requirements of § 54-94a had not been met
in this case. We denied the state’s motion without preju-
dice and ordered, sua sponte, the defendant to file a
supplemental brief addressing why this court should
exercise its supervisory power to review his claim on
appeal in accordance with the three factors described
in State v. Revelo, supra, 256 Conn. 503–504, and State
v. Chung, 202 Conn. 39, 44–45, 519 A.2d 1175 (1987).9
  We begin our analysis with the text of § 54-94a, which
provides: ‘‘When a defendant, prior to the commence-
ment of trial, enters a plea of nolo contendere condi-
tional on the right to take an appeal from the court’s
denial of the defendant’s motion to suppress or motion
to dismiss, the defendant after the imposition of sen-
tence may file an appeal within the time prescribed by
law provided a trial court has determined that a ruling
on such motion to suppress or motion to dismiss would
be dispositive of the case. The issue to be considered
in such an appeal shall be limited to whether it was
proper for the court to have denied the motion to sup-
press or the motion to dismiss. A plea of nolo conten-
dere by a defendant under this section shall not
constitute a waiver by the defendant of nonjurisdic-
tional defects in the criminal prosecution.’’ (Empha-
sis added.)
   Our Supreme Court has concluded that this statute
does not implicate the subject matter jurisdiction of an
appellate court. State v. Piorkowski, 236 Conn. 388, 400,
672 A.2d 921 (1996); see also State v. Revelo, supra, 256
Conn. 501 n.14; State v. Palkimas, 116 Conn. App. 788,
796, 977 A.2d 705 (2009) (statute did not ‘‘create a new
jurisdictional doorway into [the Appellate Court] [inter-
nal quotation marks omitted]). Section 54-94a ‘‘modified
the broad waiver of nonjuridictional defects implicit in
a plea of nolo contendere.’’ (Internal quotation marks
omitted.) State v. Palkimas, supra, 795. It provides a
defendant with an expedited route to an appellate court
after fully litigating a suppression or dismissal issue in
the trial court, without expending additional resources.
State v. Paradis, 91 Conn. App. 595, 602, 881 A.2d 530
(2005). ‘‘The appellate courts in this state consistently
have required that § 54-94a be interpreted strictly.’’ Id.,
603. Our Supreme Court has refused to expand this
statutory right to plead conditionally and appeal beyond
the issues explicitly enumerated in § 54-94a. State v.
Commins, 276 Conn. 503, 516, 886 A.2d 824 (2005),
overruled in part on other grounds, State v. Elson, 311
Conn. 726, 754, 91 A.3d 862 (2014).
   The defendant’s appeal does not meet the require-
ments of § 54-94a. The appeal was not taken from the
judgment of conviction following the denial of a motion
to dismiss or a motion to suppress. The sole basis for
appeal was that the court improperly denied the motion
to present the defense of necessity. See, e.g., State v.
Lasaga, 269 Conn. 454, 480, 848 A.2d 1149 (2004)
(declining to review claim that trial court improperly
denied motion for continuance to change counsel
because that claim not within scope of § 54-94a); State
v. Jenkins, 82 Conn. App. 802, 812–15, 847 A.2d 1044
(declining to review claim that trial court improperly
denied motion to reopen hearing on motion to suppress
because that claim was not within scope of § 54-94a),
cert. denied, 269 Conn. 915, 852 A.2d 745, cert. denied,
543 U.S. 1025, 125 S. Ct. 667, 160 L. Ed. 2d 503 (2004).
   Furthermore, the court never made the mandatory
finding that the denial of this motion was dispositive
of the case. We will not review the defendant’s claim
on appeal in the absence of such a determination. State
v. Jevarjian, 124 Conn. App. 331, 353, 4 A.3d 1231 (2010)
(no appellate review of denial of motion for disclosure
because that motion is not identified in § 54-94a and
trial court did not make determination that ruling on
motion was dispositive of case), appeal dismissed, 307
Conn. 559, 58 A.3d 243 (2012) (appeal moot); State v.
Munoz, 104 Conn. App. 85, 93, 932 A.2d 43 (2007) (ruling
on whether motion being appealed was dispositive is
not waivable); see also State v. Rhoads, 122 Conn. App.
238, 244, 999 A.2d 1 (review afforded pursuant to § 54-
94a only if conditions of statute are met), cert. denied,
298 Conn. 913, 4 A.3d 836 (2010).
  The defendant requests that we exercise our supervi-
sory authority over the administration of justice to
review his appellate claim and directs our attention to
State v. Revelo, supra, 256 Conn. 494. In that case, the
defendant received a plea offer in which he would serve
eight years. Id., 497. The defendant, however, wanted
a hearing on his motion to suppress. Id. The trial court
stated that if he pleaded guilty after ‘‘losing that
motion,’’ then he would receive a sentence of nine years.
Id., 497–98. Following the denial of the motion to sup-
press, the defendant accepted the plea offer to serve
nine years incarceration conditioned on the right to
appeal the denial of the motion to suppress pursuant
to § 54-94a. Id., 498.
  In his appeal to this court, the defendant claimed not
only that the court improperly denied his motion to
suppress, but also that the court violated his right to
due process by sentencing him to nine years, rather
than eight, for exercising his right to a determination
of the merits of his motion to suppress. Id., 499. This
court concluded that the trial court properly denied the
defendant’s motion to suppress and declined to review
his due process claim because that claim was outside
of the parameters of § 54-94a. Id., 500.
   Our Supreme Court granted certification to appeal,
inter alia, the defendant’s due process claim. Id., 501.
At the outset of its analysis, the court noted that ‘‘in
the absence of a showing of good cause, an appellate
court should decline to review an issue that has not
been raised in accordance with the provisions of § 54-
94a. We also recognize that such good cause is likely
to be established only infrequently.’’ Id., 503. The court
then identified three reasons why, under the facts and
circumstances present in Revelo, good cause existed
and review of the defendant’s claim was warranted,
even though the appeal was not brought in accordance
with the provisions of § 54-94a. ‘‘First, the defendant’s
due process claim gives rise to an important issue,
namely, the proper role of our trial judges in the plea
bargaining process, the significance of which tran-
scends this particular case. Second, the undisputed
facts of this case bear out the defendant’s claim of a
constitutional violation. Finally, in explaining its deci-
sion not to review the issue, the Appellate Court indi-
cated in dictum that the practice challenged by the
defendant is permissible. . . . In light of our contrary
determination, we are unwilling to allow that dictum
to stand lest it be construed by our trial judges as
approval of a practice that violates principles of due
process.’’ (Citation omitted; footnotes omitted.) Id.,
503–504; see also State v. Chung, supra, 202 Conn.
43–45.
   In the present case, the defendant has failed to estab-
lish good cause as defined by Revelo, and therefore we
decline to review his claim that the court improperly
denied his request to pursue the defense of necessity.
The issue raised in this appeal by the defendant does
not transcend his particular case. Further, the facts here
do not bear out the defendant’s claim of a constitutional
violation. See, e.g., State v. Lasaga, supra, 269 Conn. 480
(defendant’s claim outside narrow exception of Revelo
because undisputed facts do not clearly establish con-
stitutional violation and no need to overrule unconstitu-
tional dicta from Appellate Court).10 We also note that
the defendant could have proceeded to trial, and if
convicted and sentenced, then filed an appeal from that
judgment challenging the court’s ruling on the motion to
present the defense of necessity; instead, the defendant
chose to enter a conditional plea and take his chances
that his claim would be reviewed pursuant to Revelo.
Heeding the observation that ‘‘courts very rarely have
undertaken review on the basis of this supervisory
power’’; State v. Palkimas, supra, 116 Conn. App. 797;
we decline to review this claim.
   As a final matter, we address whether we should
affirm the judgment of the trial court, as requested by
the state, or remand the case for further proceedings.
It is clear from his plea form and defense counsel’s
remarks that the defendant in this case conditioned his
plea of nolo contendere on the right to appeal the denial
of his request to present the defense of necessity. Cf.
State v. Commins, supra, 276 Conn. 518–19 (defendant
did not state during canvass, or indicate on plea form,
that plea was conditional); State v. Gilnite, 202 Conn.
369, 372–73, 521 A.2d 547 (1987) (same). Because the
condition of his plea, that is the right to appeal the
denial of his motion to present a necessity defense,
cannot be fulfilled under our law; see State v. Kelley,
206 Conn. 323, 337, 537 A.2d 483 (1988); State v. Madera,
198 Conn. 92, 107–108, 503 A.2d 136 (1985); a condi-
tional plea of nolo contendere should not have been
accepted in this case. See State v. Madera, supra, 108.
Under these circumstances, the defendant’s conviction
cannot stand; the judgment must be reversed and the
case remanded for further proceedings. See State v.
Olson, 67 Conn. App. 562, 564, 787 A.2d 664 (2002).
   The judgment of conviction is reversed and the case
is remanded with direction to vacate the plea and for
further proceedings.
      In this opinion the other judges concurred.
  1
     General Statutes § 53a-167c (a) provides in relevant part: ‘‘A person is
guilty of assault of public safety, emergency medical, public transit or health
care personnel when, with intent to prevent a reasonably identifiable . . .
employee of the Department of Correction . . . from performing his or her
duties, and while such . . . employee . . . is acting in the performance
of his or her duties, (1) such person causes physical injury to such . . .
employee . . . .’’
   2
     The state subsequently nolled the charge of possession of a dangerous
instrument in a correctional institution.
   3
     The defense of necessity is not found in our statutes. See In re Juvenile
Appeal, 184 Conn. 157, 163–64, 439 A.2d 958 (1981). We have, however,
recognized it as a common-law defense under certain narrowly defined
circumstances. ‘‘The defense rests upon the proposition that there may be
circumstances where the value protected by the law is, as a matter of public
policy, eclipsed by a superceding value which makes it inappropriate and
unjust to apply the usual criminal rule. . . . The defense of necessity tradi-
tionally covered the situation where physical forces beyond the actor’s
control rendered illegal conduct the lesser of two evils. . . . The defense,
however, deals with obvious and generally recognized harms, not with those
which are debatable and, indeed, the subject of legislation and government
regulation.’’ (Citations omitted; emphasis added; internal quotation marks
omitted.) State v. Drummy, 18 Conn. App. 303, 308–309, 557 A.2d 574 (1989);
see also State v. Woods, 23 Conn. App. 615, 617–18, 583 A.2d 639 (1990).
   To prevail on the defense of necessity a defendant must show that (1)
there is no third and legal alternative available, (2) the harm to be prevented
was imminent and (3) a direct causal relationship may be reasonably antici-
pated to exist between the defendant’s action and the avoidance of harm.
State v. Drummy, supra, 18 Conn. App. 309; State v. Woods, supra, 23 Conn.
App. 618.
   4
     ‘‘The defendant is required to make a preliminary showing through an
offer of proof before the necessity defense may be submitted to the jury.
. . . Therefore, as a threshold question of law, the trial court must determine
whether a necessity defense is warranted under the facts presented by the
defendant. . . . If the court determines that there is sufficient evidence
available to support the defense of necessity, then a defendant is entitled
as a matter of law to a defense of necessity instruction.’’ (Citations omitted.)
State v. Woods, 23 Conn. App. 615, 617–18, 583 A.2d 639 (1990).
   We note that both parties assume that the evidence required for the
preliminary showing is the standard for a jury instruction on a general
defense, which is that a defendant is entitled to present a defense to the
jury so long as there is some evidential basis, ‘‘no matter how weak or
incredible . . . .’’ State v. Montanez, 277 Conn. 735, 750, 894 A.2d 928 (2006);
see State v. Varszegi, 236 Conn. 266, 282, 673 A.2d 90 (1996). Our Supreme
Court, however, has set forth a different standard in cases involving affirma-
tive defenses. ‘‘It is well established in Connecticut that a defendant is
entitled to have the jury instructed on any general defense for which there
is any foundation in the evidence, no matter how weak or incredible. . . .
This standard is appropriate when a defendant raises a general defense and
the state has the burden of disproving that defense beyond a reasonable
doubt. . . .
   ‘‘The any evidence standard has been improperly applied, however, to
affirmative defenses. . . . In those cases, the fact that it is the defendant
who shoulders the burden of proving an affirmative defense by a preponder-
ance of the evidence was not taken into consideration. To the extent that
those cases have held that any evidence is sufficient for a defendant to be
entitled to a requested instruction regarding an affirmative defense, they are
overruled. Because the defendant bears the burden of proof of an affirmative
defense . . . we now hold that a defendant is entitled to a requested instruc-
tion on the affirmative defense . . . only if there is sufficient evidence for
a rational juror to find that all the elements of the defense are established
by a preponderance of the evidence.’’ (Citations omitted; emphasis added;
footnotes omitted; internal quotation marks omitted.) State v. Person, 236
Conn. 342, 352–53, 673 A.2d 463 (1996); see also State v. Golodner, 305 Conn.
330, 353, 46 A.3d 71 (2012); State v. Wilson, 242 Conn. 605, 625, 700 A.2d
633 (1997); State v. Small, 242 Conn. 93, 102, 700 A.2d 617 (1997); Francis
v. Commissioner of Correction, 142 Conn. App. 530, 541 n.6, 66 A.3d 501,
cert. denied, 310 Conn. 921, 77 A.3d 141 (2013); State v. Cole, 50 Conn. App.
312, 321, 718 A.2d 457 (1998), aff’d, 254 Conn. 88, 755 A.2d 202 (2000). We
acknowledge that the standard set forth in Person has been applied in cases
involving statutory affirmative defenses, unlike the present case where the
defense of necessity is an affirmative common-law defense.
   For the purposes of this appeal, we need not decide whether the ‘‘any
evidence’’ standard or the Person standard applies. Regardless of which
standard applies, the defendant’s claim does not come within the provisions
of § 54-94a or meet the good cause exception set forth in State v. Revelo,
supra, 256 Conn. 503–504.
   5
     As noted previously, the defendant must make an offer of proof with
respect to the three elements of the defense of necessity. See State v.
Drummy, 18 Conn. App. 303, 309, 557 A.2d 574 (1989). ‘‘Where an offer of
proof is made with respect to a defense [of necessity] and it is clear from
the offer of proof that the defense is insufficient as a matter of law, the
trial court may properly refuse to permit evidence of the defense to be
submitted to the jury.’’ Id., 309–310; see generally State v. Bryan, 307 Conn.
823, 835, 60 A.3d 246 (2013).
   6
     This section of the form, signed by the defendant and defense counsel,
specifically states: ‘‘I understand that I can file an appeal of a motion to
suppress or a motion to dismiss only if I do so within the time allowed by
law and only if the trial court has determined that a ruling on the motion
would be dispositive of the case.’’ We also note that defense counsel left
blank the space reserved for naming the specific motion that was denied
by the trial court and on which the defendant based his conditional plea.
   7
     We note that during the canvass, the issue of an appeal was not discussed.
   8
     The form for a conditional plea of nolo contendere indicates that the
trial court should determine whether the motion to suppress or motion to
dismiss listed by the defendant or defense counsel would be dispositive of
the case. As noted, the defendant and defense counsel failed to identify any
motion in this part of the form.
   9
     On January 22, 2015, the defendant moved for permission to file a late
motion to rectify the record regarding the issue of whether the ruling on
the defense of necessity was dispositive. We determined that no action was
necessary on this motion.
   10
      We note that the third factor set forth in State v. Revelo, supra, 256
Conn. 504, is not applicable in light of the posture of this case.
