author: Daly, J.

text:
    Health Planning Associates, Inc. v. Donald A. Whitlock
    (4616)
    Dupont, G. J., Daly and Bieluch, Js.
    Submitted on briefs April 2
    decision released August 25, 1987

      David S. Grossman filed a brief for the appellant (defendant).

      Stephen W. Studer filed a brief for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this suit to recover for services rendered to the defendant. The case was referred to an attorney factfinder pursuant to Practice Book § 546D on March 15, 1985. The defendant requested a continuance which was denied by the court, Cioffi, J., and the matter was set for a hearing to be held on March 22, 1985. The defendant’s counsel appeared before the factfinder on that date and again requested a continuance. The factfinder denied the request stating that he was without authority to grant a continuance. General Statutes § 52-549t; Practice Book § 546K (a). The defendant did not attend or participate in the factfinder’s subsequent hearing.

The factfinder found that the parties had entered into a written agreement which had been executed by the defendant in January, 1983. The agreement provided that the plaintiff was to perform certain consulting and planning services for the defendant. The plaintiff was to be paid on an hourly basis, and, in fact, received payment in the amount of $1112.70 in March, 1983, for work done. The plaintiff continued work on the project, but never received additional remuneration. The fact-finder concluded that the plaintiff was entitled to an additional $6239.35 for the reasonable value of its continued services, and recommended that judgment enter for the plaintiff in that amount.

The factfinder’s report was submitted on July 19, 1985. The defendant was granted an extension of time to file objections until August 26, 1985. On September 16, 1985, the trial court rendered judgment pursuant to the factfinder’s report. On September 23, 1985, the defendant filed an objection to the factfinder’s report. On October 8, 1985, the objection was denied as untimely. On October 9,1985, the defendant moved to reargue the rendition of judgment, claiming that he had not been given the opportunity to present oral argument on his objection. From the denial of the motion to reargue, the defendant has appealed.

The defendant raises four claims of error: (1) that the delegation by the legislature of the authority to establish a factfinding procedure pursuant to the rule-making authority of the judges of the Superior Court was improper and violated the Connecticut constitution, thus depriving the trial court of jurisdiction to render judgment on the finding of facts; (2) that the standards for selecting factfinders are vague and insufficient; (3) that the factfinder does have authority to grant continuances; and (4) that the award of damages was improperly calculated since there was no finding of the precise number of hours worked. We find no error.

Although the defendant’s claims were not distinctly raised at trial, his first claim challenges the jurisdiction of the court to render a judgment. Such a claim may be raised at any time. The defendant’s second claim implicates his right to due process. See Midland Ins. Co. v. Universal Technology, Inc., 199 Conn. 518, 521, 508 A.2d 427 (1986). Accordingly, we review the first two of his claims. See Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415 (1986).

The defendant claims that the appointment of fact-finders violated article first, §§ 10 and 20, and article fifth, § 2 (as amended by article twentieth, § 2), of the Connecticut constitution.

Subsequent to the filing of this appeal, our Supreme Court considered these issues in relation to the appointment of attorney state referees under General Statutes § 52-434 (a) (4) in Seal Audio, Inc. v. Bozak, Inc., supra.

Our Supreme Court has stated that attorney state referees do not have the power to perform the same functions as judges. Specifically, attorney state referees cannot render judgment. “[A]n attorney referee is simply a factfinder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445.” (Emphasis added.) Seal Audio, Inc. v. Bozak, Inc., supra, 502. Similarly, we conclude that factfinders are not judges.

Article fifth, § 2, of the Connecticut' constitution requires that judges be appointed by the general assembly. Since neither attorney state referees nor fact-finders are judges, the requirements of article fifth, § 2, are not applicable. Factfinders are appointed solely by the chief court administrator in accordance with General Statutes § 52-549p. See Seal Audio, Inc. v. Bozak, Inc., supra, 501, 507-508, citing Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73-86, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982).

Similarly, under General Statutes § 52-549p, fact-finders are not empowered to function as judges. The hearing procedures employed by factfinders in general and by this factfinder in particular are similar to those of attorney referees which were approved in Seal Audio, Inc. v. Bozak, Inc., supra. Thus, on the basis of that case, we conclude that the delegation of authority to the rulemaking authority of the judges of the Superior Court who in turn established the factfinder program did not violate the defendant’s constitutional rights.

The defendant’s claim that the standards for selecting factfinders are vague and insufficient is without merit. The interpretation of § 52-434 (a) (4) that our Supreme Court adopted in Seal Audio, Inc., limiting the role of an attorney referee to that of a factfinder or committee governed by the provisions of § 52-425 and Practice Book §§ 428 and 434, is a sufficient response to this claim. The statute and the rules relied on by the court clearly define the authority of a committee appointed to hear the evidence and report the facts to the court and also provide procedures for the protection of the rights of parties in challenging the findings of a committee in the trial court. On the basis of these findings, our Supreme Court has stated that “there is no longer any substance to the contention that § 52-434 (a) (4) is void for vagueness.” Midland Ins. Co. v. Universal Technology, Inc., supra, 52. We conclude that the statute and the rules governing factfinders provide similarly adequate standards and safeguards.

To the extent that the defendant also claims that due process requires a court to be constitutionally sanctioned and safeguarded by legislative control over appointments of those who perform a judicial role, our prior discussion of the claimed violations of article fifth, § 2, is a sufficient response. We concluded that fact-finders do not function as judges and thus legislative control over appointments is not required. A similar conclusion has been reached in regard to due process challenges to the use of nonjudicial persons appointed by the federal judiciary to find facts. See Seal Audio, Inc. v. Bozak, Inc., supra, 516; United States v. Raddatz, 447 U.S. 667, 681-84, 100 S. Ct. 2406, 65 L. Ed. 2d 424, reh. denied, 448 U.S. 916, 101 S. Ct. 36, 65 L. Ed. 2d 1179 (1980).

Since the defendant failed to raise properly claims three and four to the trial court, pursuant to Practice Book § 546H, or within the time extended by the trial court, and since they are nonconstitutional in nature, we will not review those objections.

We find no merit in the defendant’s challenge to the findings of the factfinder and the judgment rendered in accordance therewith.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-549t and Practice Book § 546K (a) provide in pertinent part: “Where a party fails to appear at the hearing, the fact-finder shall nonetheless proceed with the hearing . . . .”

       It appears that the trial court treated the motion to reargue as a motion to open the judgment.

       Article first, § 10, provides in pertinent part: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       Article first, § 20, provides in pertinent part: “No person shall be denied the equal protection of the law . . . .”

       Article fifth, § 2, provides in pertinent part: “The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed.”

       General Statutes § 52-434 (a) (4) provides in pertinent part: “In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, as many state referees as he may from time to time deem advisable or necessary.”

       General Statutes § 52-549p provides in pertinent part: “(a) Upon publication of a notice in the Connecticut Law Journal, any commissioner of the superior court admitted to practice in this state for at least five years, who is willing and able to act as a fact-finder, may submit his name to the office of the chief court administrator for approval to be placed on a list of available fact-finders for one or more judicial districts. The criteria for selection and approval of the fact-finders shall be promulgated by the judges of the superior court. Upon selection and approval by the chief court administrator, for such term as he may fix, the fact-finders shall be sworn or affirmed to try justly and equitably all matters at issue submitted to them. The chief court administrator, in his discretion, may at any time revoke any such approval.”


source: Caselaw Access Project

author: S. Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Heriberto Coriano
    (4900)
    Borden, Bieluch and S. Freedman, Js.
    Argued May 5
    decision released September 1, 1987

      ElsaM. Calderon, assistant public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Michael Lawlor, former assistant state’s attorney, for the appellee (state).
   S. Freedman, J.

After a trial to a jury on charges of burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the third degree in violation of General Statutes § 53a-124, the defendant was acquitted of larceny in the third degree but convicted of burglary in the third degree. He appeals from that conviction. This appeal generates five issues. It asks whether the court erred (1) in refusing to strike testimony of the complainant because the police erased a recording of his emergency call reporting the crime, (2) in denying the defendant’s motions for mistrial, (3) in denying the defendant’s motion for judgment of acquittal, (4) in admitting evidence of an act of prior misconduct for the purpose of impeaching the defendant, and (5) in its jury instructions on the crime of burglary and the use of fingerprint evidence. We find no error.

The jury could reasonably have found the following facts. On December 17,1984, the victim, Dean Andrews, following his usual routine, left his home between 7 and 8 a.m. His house was fronted by a porch and had double-hung windows on either side of the front door, both covered by storm windows. Because of debris left in front of the lefthand window, it had been inaccessible from the outside since Labor Day of 1984.

Returning home that evening, Andrews saw that someone had made a path through the debris to the window. There were markings on the storm window, and its glass and the glass of the inner window were both broken. Some large pieces of broken glass were lying around. The telephone inside the house was ripped from the wall. Andrews’ revolver and rifle were missing. Andrews, using a neighbor’s phone, then called the police to report a burglary. Officer Herman Badger responded to the call approximately forty-five minutes later. Badger put six pieces of broken glass into a plastic bag and took them to police headquarters where they were checked for fingerprints. One piece of glass had three fingerprints on it, two on one side and one on the other.

At a later date, Andrews informed the police that the defendant, a former employee, could have been responsible for the incident. He had been at Andrews’ house the Friday after Thanksgiving, 1984, and also lived with a woman who sometimes worked for Andrews as a house cleaner. Andrews had fired the defendant from his employment on December 8,1984. The defendant had previously filed a workers’ compensation claim against Andrews based on a back injury suffered at his place of employment. Andrews also told the police that other items had been taken besides those already reported, but that his insurance company had paid him for them.

Comparing the defendant’s prints with those from the broken glass, the police determined that two prints on one side of the glass matched the defendant’s index and middle .fingers and the print on the other side matched the defendant’s thumb. A police expert was able to conclude, on the basis of all the evidence, that the prints were placed there at the same time the glass was removed.

The defendant testified and presented a defense of alibi. He stated that while doing yard work the day after Thanksgiving he was bothered by back pain and leaned against the window in question, touching it. He said that later that day he was inside the house and leaned on the inside of the window while looking out, again touching it. He stated he never opened the inside window or the storm window. He further stated he was home in bed the entire day on December 17, 1984, at the suggestion of a doctor, because of back pain. Sonia Figueroa, with whom he lived, testified in corroboration of his alibi.

During the trial, the defendant’s veracity was impeached by the state by evidence that he had lied under oath in a prior legal proceeding. The defendant responded that he was without an interpreter and had not understood the judge’s questions at that proceeding or the proceeding itself. The defendant also attempted unsuccessfully to impeach the character of Andrews for truthfulness.

Testimony at trial further revealed that the New Haven police had erased a tape recording of the victim’s emergency call reporting the burglary.

I

Relying on State v. Myers, 193 Conn. 457, 467-68, 479 A.2d 199 (1984), and Practice Book §§ 748 et seq., the defendant claims that destruction of the victim’s recorded telephone call, which he maintains was a “Jencks statement,” deprived him of his constitutional right of confrontation. He argues that the recording could have contained inconsistent impeachment material. We cannot agree. The right under the rules of practice to statements of witnesses after direct examination is not a right of constitutional magnitude. United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), on remand, 509 F.2d 1157, (Ct. Cl.) cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); State v. Vessichio, 197 Conn. 644, 661-62, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). The defendant therefore bears the burden of showing prejudice. State v. Myers, supra, 469 n.7.

Under State v. Myers, supra, we do not condone the erasure of the recording. We are, however, required to determine whether it was sufficiently prejudicial to warrant reversal. Under the facts of this case, we conclude it was not. Unlike the anonymous call in State v. Myers, supra, which included a detailed description of the crime, Andrews’ call in this case merely reported a burglary to the police and requested assistance. The defendant’s counsel had full opportunity to cross-examine at length both the victim and the investigating officer to whom he spoke. Yet, nothing in the record even hints at the existence of impeachment material. The defendant’s argument rests on speculation, failing to establish the weakest showing of prejudice.

The state, in a cogent public policy argument, urges us to carve out an exception to State v. Myers, supra, for emergency 911 calls. Despite the appeal of this argument, we decline to accept the invitation. Because the defendant failed to make any threshold showing of prejudice, we need not reach that question and leave it for another day.

II

The defendant next argues that the trial court erred in refusing to grant a mistrial (1) for refusing a continuance to investigate newly discovered fingerprint evidence and for limiting his cross-examination of the complainant for bias, and (2) for the destruction of the recording of the complainant’s telephone call. See State v. Hill, 201 Conn. 505, 510, 518 A.2d 388 (1986); State v. Moye, 199 Conn. 389, 395, 507 A.2d 1001 (1986).

Responding to the defendant’s motion for discovery, the state agreed to allow inspection of all evidence, including fingerprints. At that time, the state’s expert had located three prints on the broken glass, two of which he identified as belonging to the defendant. The defendant’s expert had the opportunity to inspect these prints. Just before trial, the state’s expert was able to identify the third print as that of the defendant’s thumb. The defendant requested preclusion of the additional fingerprint evidence due to late disclosure; see Practice Book § 747; and alternatively requested a continuance for his expert to review the new conclusion. The court denied these motions. After the state’s expert testimony was presented, the defendant asked for a mistrial, citing the failure to grant the continuance and the defendant’s inability to cross-examine Andrews on bias, interest and motive.

The fingerprint evidence complained of by the defendant was seasonably made available to him after the original disclosure. The defendant’s expert was thus able to inspect those prints and draw any conclusion from them he found reasonable. Since he already had the opportunity to view what the defendant later requested, the court’s denial of a continuance was not an abuse of discretion. Moreover, nothing prevented the defendant from bringing his expert into the courthouse to look at the prints.

The record also indicates that the defendant’s claim of bias by the victim was, in fact, explored on cross-examination by his counsel, and denied by the victim. Accordingly, the first motion for mistrial was properly denied.

We have already concluded that no error resulted from the police erasure of the telephone tape recording., Our review of the record confirms that the trial court did not abuse its discretion in failing to grant the defendant’s second motion for mistrial.

Ill

The defendant alleges that the court erred in denying his motion for judgment of acquittal after the verdict. Essentially, the claim has three prongs: (1) the verdict rested upon fingerprint testimony which cannot stand alone in the absence of evidence indicating that the prints were made at the time of the crime; (2) there was a reasonable hypothesis consistent with innocence concerning the fingerprints; and (3) the defendant’s alibi defense, coupled with his explanation of when the fingerprints could have been impressed, created a reasonable doubt as a matter of law.

The defendant’s first argument fails because the fingerprint evidence did not stand alone. See State v. Thorpe, 188 Conn. 645, 648-50, 453 A.2d 88 (1982). The defendant knew the victim’s work habits; his friend worked in the house; the point of entry was inaccessible from the outside for a long period preceding the date of the crime; the window was protected by a storm window; the three prints were on the same piece of window glass; and the location of the three prints, namely, index finger and middle finger opposing the thumb near the end of the broken glass, allowed the state’s expert to opine that they were all impressed at the same time. Further, the defendant’s testimony regarding the opportunities he had to impress his prints on the window was self-limiting. It was clearly in his best interest to relate as many such incidents as possible, and reasonable for the jury to believe he did so. Thus, the defendant’s own testimony limited the possible times he could have touched the window. Yet the jury, as the trier of fact, was at liberty to disbelieve the defendant’s testimony, which it apparently did. Once that testimony was disbelieved, the jury could reasonably believe that the prints were made at the time of the crime.

The defendant’s other arguments concerning the motion for acquittal incorrectly assume that the defendant’s evidence was necessarily accepted by the jury. It is obvious that the thrust of this attack is an attempt to have us retry this case. It was for the trier of fact to weigh the evidence and determine the credibility of witnesses. “This court cannot and will not weigh the evidence contained in the record before us.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 237, 492 A.2d 159 (1985); Sansone v. Lettieri, 4 Conn. App. 466, 467-68, 495 A.2d 720 (1985).

Nothing in this record indicates that the trial court abused its discretion in denying the defendant’s motion for judgment of acquittal.

IV

Next, the defendant claims the trial court erred by allowing the state’s impeachment of the defendant through use of a prior act of misconduct. The act in question was the defendant’s false assertion made while under oath in an accelerated rehabilitation proceeding that he had no cases pending against him. Although conceding the normal admissibility of this evidence as it relates to veracity, the defendant argues that the court was obligated to exclude it because of the surrounding circumstances. He cites the lack of an interpreter at the prior proceeding which led him to misunderstand the question he answered, and his public defender’s perfunctory explanation of the proceeding in English which confused him as to its meaning. The resulting prejudice, he urges, should have led the court to reject the offered evidence, particularly in view of the defendant’s reliance upon his own testimony.

Prior acts reflecting adversely upon a person’s honesty bear sharply on the issue of veracity at trial and, subject to the court’s discretion, may be admitted for purposes of impeachment. State v. Martin, 201 Conn. 74, 87, 513 A.2d 116 (1986). This was such a case. The fact that the defendant’s credibility was critical to his defense cannot insulate him from attack on this ground, nor should it. The question raised regarding the defendant’s language problems and resultant confusion is highly relevant to the weight of the evidence, but not necessarily to its admissibility. In this context, the trial court has considerable discretion to determine the extent of cross-examination and whether its probative value outweighs its prejudicial effect. State v. Martin, supra, 88-89; Vogel v. Sylvester, 148 Conn. 666, 676, 174 A.2d 122 (1961). The entire panoply of facts was properly set before the jury. Under the circumstances of this case, we cannot conclude that the court abused its discretion.

The defendant points out that the court’s ruling was in stark contrast to its refusal to allow impeachment evidence against the complainant by a character witness. A review of the record, however, reveals that the defendant failed to produce the required predicate for his character witness’ testimony. In the absence of a satisfactory foundation for such evidence, the court properly excluded it. State v. George, 194 Conn. 361, 368-69, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Rodriguez, 180 Conn. 382, 389, 429 A.2d 919 (1980).

V

Finally, the defendant asks us to find that the court erred in its charge to the jury (1) in failing to explain fully and define each of the elements of burglary, (2) in diluting the state’s burden of proof by commenting that the jury need not spend too much time on some of the questions, and (3) in misstating the law of fingerprint evidence. The defendant failed to take exception to the first proposition but presses for review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), since a charge omitting an essential element of a crime raises an issue of fundamental constitutional dimension. State v. Grant, 6 Conn. App. 24, 28, 502 A.2d 945 (1986). This case is distinguishable from State v. Grant, supra. The record reveals that the court did inform the jury of all the elements of the crime of burglary. The defendant’s real claim, therefore, is that the court did not define the elements of burglary in greater detail. The charge, of course, must be viewed in its entirety. Unlike State v. Grant, supra, where illegal entry was in contention, the term “unlawfully” was defined in a supplemental charge in this case, and the other undefined terms bear commonly understood meanings. State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977); see also General Statutes § l-l(a).

We have often repeated that claims raised for the first time on appeal will not ordinarily be reviewed. Our rules of practice are not simply formalities, but serve to alert the trial court to potential problems while there is still time to act. Assigning error on the basis of objections not raised at trial “unfairly subjects the judges and the opposing party to trial by ambush.” State v. Rogers, 199 Conn. 453, 460-61, 508 A.2d 11 (1986). “Only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, supra, 69.

To the extent that the defendant’s first disagreement with the trial court’s charge is reviewable, we find no error. We also hold that the claim made at oral argument based upon State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), was never properly raised and is not before this court.

The claim that the court’s comments diluted the state’s burden of proof are without merit. The court did comment that the jury need not take much time in determining that a burglary was committed in a building. It would, of course, be fatuous to suggest that the victim’s home was not a building. This case is controlled by State v. Collette, 199 Conn. 308, 507 A.2d 99 (1986), in which our Supreme Court, referring to the trial court’s comment that “I don’t think there is really any dispute, a burglary occurred” stated that “[t]he court was at this point diverting the jury’s attention away from the burglary issue, which was virtually uncontested at trial, and toward the identification question, the key to the whole case. This type of emphasis and direction by the trial court was, under the circumstances, appropriate.” Id., 318. As in State v. Collette, supra, the court here did not withdraw from the jury the issue of whether a burglary occurred since it told the jury it was the state’s responsibility to prove the elements of the crime beyond a reasonable doubt. See State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985).

It is also clear that the court’s comment that “the burglary and larceny occurred at the same time” did not adversely influence the jury. The defendant’s acquittal of the larceny charge and conviction of burglary reflect that no prejudice resulted from the comment.

The defendant’s final claim is that the court misstated the law of fingerprint evidence. To the extent that the defendant took exception to the court’s charge, in view of our previous discussion and our review of the record, we conclude there was no error. See State v. Thorpe, supra.

“The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done.” State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983); State v. Widget, 11 Conn. App. 47, 52, 525 A.2d 548 (1987). We conclude the charge satisfied this test.

There is no error.

In this opinion the other judges concurred.

       “Practice Book § 749, which defines the term ‘statement,’ tracks substantially the Jencks Act definition of that term. See 18 U.S.C.A. § 3500 (e).” State v. Hinton, 196 Conn. 289, 300, 493 A.2d 837 (1985).


author: Spallone, J.

text:
    Joan Fabrizi v. Administrator, Unemployment Compensation Act, et al.
    (5258)
    Dupont, C. J., Borden and Spallone, Js.
    Argued May 8
    decision released September 1, 1987

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh and Jospehine Lauriello, assistant attorneys general, for the appellant (named defendant).

      Joan Fabrizi, pro se, the appellee (plaintiff).
   Spallone, J.

The defendant administrator of the Unemployment Compensation Act (administrator) is appealing from the decision of the trial court sustaining the plaintiffs administrative appeal.

The administrator denied the plaintiffs claim for benefits on the ground that she left work voluntarily and without cause. The plaintiff then appealed to an appeals referee who, after a hearing de novo, made findings of fact and concluded that the claimant was disqualified from receiving benefits under General Statutes (Rev. to 1985) § 31-236 (2) (A), because she quit her job voluntarily and without “cause.”

The plaintiff appealed the decision of the appeals referee to the employment security board of review (board). The board adopted the appeal referee’s findings as its own, affirmed the decision and dismissed the plaintiff’s appeal.

The plaintiff then appealed the board’s decision to the Superior Court, F. Freedman, J., which sustained the appeal and remanded the matter “for proceedings consistent with this opinion.”

The board, on remand, again reviewed the record in the plaintiff’s case, including the tape recording of the hearing before the referee. On the basis of its review of the record, the board made further findings of fact and again concluded that the plaintiff had left suitable work voluntarily and without “cause” within the meaning of General Statutes (Rev. to 1985) § 31-236 (2) (A).

The plaintiff appealed that second decision of the board to the Superior Court. The administrator moved for judgment dismissing the plaintiffs appeal on the ground that the latest decision of the board was not arbitrary, unreasonable or illegal. A state trial referee, Hon. Irving Levine, in his capacity as the trial court, denied the administrator’s motion for judgment, concluding that the prior decision of the court had not authorised the board on remand to make new findings and a new decision but rather had validated the plaintiff’s application for benefits. The trial referee, therefore, sustained the plaintiff’s appeal and ordered that she be paid benefits. The administrator thereafter filed this appeal.

The administrator claims that the trial referee erred (1) in concluding that the prior decision of the trial court did not authorize the board, on remand, to conduct further proceedings in connection with the plaintiffs application for unemployment compensation benefits, and (2) in improperly substituting its judgment for that of the board by granting the claimant unemployment benefits. We agree with the administrator’s first claim.

In its memorandum of decision, the trial court, F. Freedman,,/., expressly stated: “It cannot, however, be said that as a matter of law there was but one conclusion that could have been reached by the referee. The court therefore, can go no further than to sustain the appeal. ‘For the court to go further and direct what action should be taken [by the administrative agency] would be an impermissible judicial usurpation of the administrative functions [of the administrative agency].’ Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974); see also Denby v. Commissioner, 6 Conn. App. 47, 502 A.2d 954 (1986).” (Brackets in original.) Thereupon, the court remanded the matter to the board for “proceedings consistent with this opinion.” The court’s language clearly indicates that it did not intend to direct the board to find a particular result. The cases cited by the court, Bogue v. Zoning Board of Appeals, supra, and Derby v. Commissioner, supra, clearly support the trial court’s action of remanding the matter to the administrative agency for further proceedings where more than one conclusion could be drawn by the agency. See also Persico v. Maher, 191 Conn. 384, 410, 465 A.2d 308 (1983); Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976); see Watson v. Howard, 138 Conn. 464, 86 A.2d 67 (1952). The state trial referee did, in essence, exactly what the first trial court had declined to do, namely, reverse the decision of the board and direct the administrator to grant unemployment benefits to the plaintiff. Such action was erroneous.

Because we find error on the administrator’s first claim, it is unnecessary for us to consider his second claim of error.

There is error, the judgment sustaining the appeal is vacated and the case is remanded for a hearing on the merits of the plaintiff’s appeal.

In this opinion the other judges concurred.

       The trial referee’s findings of fact, which were adopted by the employment security board of review, are as follows:
      “1. The claimant has taken an appeal from a determination of the Administrator which denied benefits from May 19,1985, on the ground of a voluntary termination of employment without good cause.
      “2. The claimant was employed part-time as a receptionist at the optimetrical firm of Furze and Ackley. She worked Monday through Wednesday and her hours were from 10:00 A.M. until 4:00 P.M. She earned $4.25. per hour. She was unhappy with her work because she felt she deserved a higher rate of pay and had asked her employers for a raise. She was told that she could not have a raise during the week that she quit.
      “3. The employers were unhappy with the claimant’s services. She had difficulty staying until 4:00 P.M. as she was scheduled preferring to come in early and leave early. This upset the owners. She also treated the store as an extension of herself. When she was there she would receive personal telephone calls and had members of her family with with her while she was on duty. It was felt that this detracted from the purpose of the store.
      “4. The precipitating incident occurred when a Mrs. Gold came in for her glasses. The claimant had called this customer on the previous day to tell her that only her reading glasses were ready and that she would have to wait for her long distance glasses and the glasses for her husband. The customer believed that all the glasses were ready and demanded them of Mr. Ackley who was waiting on her. Mr. Ackley, in turn, sought out the claimant who was in charge of these matters. After a heated exchange of words, the claimant terminated her work.”

       General Statutes (Rev. to 1985) 5 31-236 (2) (A) provides in pertinent part: “An individual shall be ineligible for benefits . . . (2) (A) if, in the opinion of the Administrator, he has left suitable work voluntarily and without sufficient cause connected with his work, provided no individual shall be ineligible for benefits if he leaves suitable work for cause, including leaving as a result of changes in conditions created by his employer, or until such individual has earned at least ten times his benefit rate . . . .”

       The board’s expanded findings of fact, filed in response to the court’s remand, are as follows:
      “1. The claimant was employed as a part-time receptionist with the subject employer for approximately six years. Her hours were from 10:00 a.m. to 4:00 p.m., three days per week, and her rate of pay at the time of separation was $4.50 per hour.
      “2. The claimant voluntarily terminated her employment on May 22, 1985, following a dispute with Lawrence Ackley, one of two partners in the firm.
      “3. The dispute with Mr. Ackley occurred while Mr. Ackley was waiting on a customer. The customer had called earlier in the day to determine whether several pairs of glasses which she had ordered were ready. Although the claimant had informed the customer on the telephone that only one pair of glasses had come in, when the customer spoke to Mr. Ackley, she insisted that she had been informed that her entire order was ready. The claimant had informed Lyle Furze, the other partner in the firm, of her conversation with the customer.
      “4. Because Mr. Ackley was not familiar with the customer’s order, he inquired of the claimant, who was performing work in the back room. When Mr. Ackley asked the claimant about the missing pair of glasses, the claimant replied that she already explained the situation to Mr. Furze.
      “5. Mr. Ackley then yelled at the claimant, ‘Where are they?’
      “6. The claimant told Mr. Ackley that that was the last time he would yell at her and that she was quitting at once.
      “7. The exchange between Mr. Ackley and the claimant was limited to the dialogue set forth in findings of fact numbers 4-6. Although voices were raised, no invective or offensive language was used, and Mr. Ackleyexpressed no criticism of the claimant.
      “8. The claimant believed Mr. Ackley to be a difficult person to get along with and a difficult employer to satisfy. Although the claimant experienced no difficulties with Mr. Furze, she had had several previous disagreements with Mr. Ackley.
      “9. Approximately seven months prior to the final incident, the claimant had had an argument with Mr. Ackley over her request for a raise. Mr. Ackley had become very excited during the argument and had pointed his index finger at her face.
      “10. The claimant had been unsatisfied with her wages for some time. Within ten days of the final incident, the claimant had again requested a raise. No action had been taken on her request, and the claimant correctly understood that her request would not be granted.
      “11. The claimant’s primary motivation for quitting was her dissatisfaction with the personality and behavior of Mr. Ackley. The claimant was also motivated to leave by her dissatisfaction with her wages and the denial of her request for a raise.
      “12. The claimant had not sought professional assistance for job-related stress and had not received professional advice to leave her job.”


author: Satter, J.

text:
    Michael P. Fattibene v. Dennis J. Kealey
    (5139)
    Dupont, C. J., Borden and Satter, Js.

      Argued May 6
    decision released September 1, 1987

      Arthur T. Fattibene, with whom, on the brief, was Paul A. Fattibene, for the appellant (plaintiff).

      Kenneth B. Povodator, for the appellee (defendant).
   Satter, J.

The plaintiff appeals from a judgment in favor of the defendant rendered by the trial court after accepting the report of an attorney trial referee and from an order of the trial court imposing sanctions upon the plaintiff and his counsel.

The plaintiff alleged in a five count complaint that the defendant negligently repaired the transmission of the plaintiffs 1980 Audi and breached an express warranty as to the work. The case was referred to an attorney trial referee. After extensive hearings, the attorney referee found that the defendant’s warranty applied only to the transmission, and that there was no credible evidence that the plaintiff’s damages “arose as a result of negligent transmission repair, defective transmission parts or a breach of warranty-guarantee.” Accordingly, he concluded that the plaintiff should not recover from the defendant under any of the five counts of the complaint.

The plaintiff filed a motion to correct and a motion objecting to the referee’s findings. He also moved to continue the hearing on the ground that the plaintiff had discovered new evidence and had been denied the opportunity to present rebuttal evidence.

After consideration of the plaintiffs lengthy motions, the attorney referee, in an order and supplemental report, reached the following conclusions: As to the motion to continue the hearing, the attorney referee found that the plaintiff had failed to meet the requirements for opening a trial on the basis of néwly discovered evidence, because he had not shown (1) that he had exercised due diligence to discover the evidence, (2) that the evidence did not exist at the time of the trial, and (3) that the evidence was material to the issues and would change the outcome of the case. The attorney referee also found that at the end of the hearings the plaintiff had made no attempt to offer rebuttal evidence. As to the motions relating to his findings, the attorney referee meticulously considered all of the plaintiff’s attacks upon them. He made a minor correction to include the torque converter under the defendant’s warranty but otherwise found that the plaintiff’s requested findings of subordinate facts were either not pertinent to the issues in the case or not supported by credible evidence.

Pursuant to Practice Book §§ 439 and 440, the plaintiff filed with the court exceptions and objections to the attorney referee’s reports. The court duly rendered judgment in which it noted: “The court having heard the parties finds that the reports of the Attorney Trial Referee should be and they are accepted.”

After the plaintiff filed his motions relating to the attorney referee’s reports and before they were ruled upon by the court, the defendant moved for sanctions against the plaintiff on the grounds that the plaintiff had repeatedly filed pleadings in bad faith and with the intent to harass the defendant and delay entry of judgment. The court, after hearing, granted the defendant’s motion and imposed sanctions as follows: “The plaintiff and his counsel are taxed all costs incurred by the defendant, including all reasonable attorney’s fees for defendant’s counsel, since March 21, 1986.” The defendant’s counsel filed an affidavit in support of attorney’s fees in the amount of $1326, and the plaintiff filed a response. The record does not reveal that the court has determined the amount of its sanctions.

The plaintiff asserts two main claims of error: (1) as to the judgment, the trial court erred in making factual findings and conclusions relating to the warranty and the breach thereof, and in denying the plaintiff’s request to open the hearing to allow introduction of new evidence; and (2) as to the sanctions, the trial court erred in imposing a punishment on the plaintiff and his counsel for doing what the rules of practice not only permitted, but required in order to challenge the referee’s report. We find no error as to the judgment, and dismiss the appeal as to the order of sanctions for lack of jurisdiction.

I

When the factual basis of a trial court decision is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The primary factual issues of this case were which parts of the car were covered by the warranty and whether the defendant had breached that warranty. The referee found that the warranty applied only to the transmission and torque converter of the plaintiffs car; the damages alleged by the defendant were not caused by negligent repair of those parts, and that there was no breach of warranty.

On the issue of opening the hearing, the referee found that the plaintiff had failed to meet the requirements for presenting newly discovered evidence.

While the record reveals a conflict of evidence on these matters, the probative force of the evidence is for the trier of fact to determine. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979). The referee’s factual findings in favor of the defendant on both issues were not unsupported in the record or mistaken as a matter of law. Bowman v. 1477 Central Avenue Apartments, Inc., supra, 257. Because the referee’s findings were not clearly erroneous, the trial court did not err in rendering judgment in accordance with the report.

II

The court imposed sanctions upon the plaintiff and his attorney, measured by the defendant’s costs, including the defendant’s reasonable attorney’s fees, but the court did not fix the amount of its sanctions. Its order, therefore, is not final. Connecticut Bank & Trust Co. v. CHRO, 202 Conn. 150, 156, 520 A.2d 186 (1987). Although this issue was not raised by the parties, this court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985).

There is no error as to the judgment of the trial court; the appeal of the court’s order of sanctions is dismissed.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Terrance Corbett
    (5101)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 12
    decision released September 1, 1987

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2) and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant’s sole claim on appeal is that the trial court erred in admitting into evidence shotgun shells taken from the top of a bureau in the room where he was arrested pursuant to a warrant. We find no error.

The jury could reasonably have found the following facts: One evening in June of 1985, the victim and his girlfriend drove to the intersection of Andover and Fairfield Streets in Bridgeport to purchase a bottle of wine and a nickle bag of marihuana. Before the victim parked his car, a group of four or five black and hispanic males approached the driver’s side of the car in an attempt to make a drug sale. While considering a purchase, the victim and his companion heard a male voice say “Get out of the car.” Anticipating a robbery, the victim attempted to drive away. A shot was fired from the crowd which hit the victim in the left cheek. The police arrived and drove the victim to the hospital.

Some two months later, the victim selected the defendant’s photograph from a police array and, at trial, made an in-court identification of the defendant as the one who shot him. Another state’s witness placed the defendant at the scene of the shooting, specifically at the driver’s side of the victim’s car. The witness also testified that the defendant ran away after the shot, carrying a sawed off shotgun.

The defendant admitted selling marihuana to the victim but denied possessing a gun. He claimed that he was across the street at the time of the shooting, and that he fled upon hearing the shots fired. The police went to the home of the defendant’s mother on the night of the shooting and were informed that the defendant was not at home. They returned the next morning with an arrest warrant for the defendant. They entered a bedroom occupied by the just-awakened defendant, who was only partially clad. While the defendant was getting dressed, an officer saw and seized three .12 gauge Remington cartridges on the top of a bureau which was across the room from the bed. An officer later cut one of the shells and found that it contained pellets which measured .3 centimeters, which was the same size as one of the pellets removed from the victim’s cheek. The defendant testified that he lived with his mother on an intermittent basis, specifically when he was not residing with his girlfriend.

At trial, the defendant objected to the admission of the shells, asserting that there was no evidence that he in fact possessed the shells or that the shells were linked to any specific gun.

The defendant relies on State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985), for his argument that the state must prove beyond a reasonable doubt that he had possession or control over the shells in order for the shells to be admissible as evidence. Such reliance is misplaced. In that case, the defendant was charged with the crime of possession of cocaine and marihuana. Proof of dominion and control is a necessary element of that crime and, thus, it was incumbent on the state to make such proof beyond a reasonable doubt. Possession is not an element of the crime with which this defendant was charged. Therefore, in this case it was not necessary for the state to prove beyond a reasonable doubt that the defendant possessed the shells.

Even if evidence is inconclusive, it may still be admissible if it tends to support a relevant fact even slightly, provided it is not unduly prejudicial or merely cumulative. State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). Evidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is relevant to show that the accused had the means to commit the crime. State v. Villafane, 171 Conn. 644, 675-76, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977); State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986); 1 F. Wharton, Criminal Evidence (13th Ed. Torcia) §§ 157, 211; 22A C.J.S., Criminal Law, § 611.

“ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. . . . The Federal Rules of Evidence (§ 401) broadly define relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ’ ” (Citations omitted.) State v. Villafane, supra, 674-75.

Because no precise and universal test of relevancy is furnished by the law, the question of relevance must be determined in each case in accordance with reason and judicial experience. State v. Wilson, 178 Conn. 427, 437, 423 A.2d 72 (1979). In this case, the shotgun shells were recovered from the top of a bureau in what was admittedly the defendant’s bedroom, at least on a part-time basis, in his mother’s home. Moreover, the defendant was partially clad and asleep in the bedroom when the shells were seized. The fact that the shells were the same type as those used in the shooting, and were present in the defendant’s bedroom at the time of the defendant’s arrest, sufficiently connects the shells to the defendant to permit them to be admitted into evidence. See People v. Ramsey, 147 Ill. App. 3d 1084, 496 N.E.2d 1054 (1986). “The fact that [certain evidence] could not be positively linked to either the crime or the defendants affects the probative weight of the evidence and not its admissibility.” Bailey v. State, 94 Nev. 323, 326, 579 P.2d 1247 (1978). “[T]he State does not have to establish that the evidence was positively in the possession of the accused in order for the instrumentality to be logically connected to the accused and admissible.” Hudson v. State, 496 N.E.2d 1286, 1296 (Ind. 1986).

We agree with the trial court that the shells were sufficiently connected to the defendant and were relevant to show that the accused had the means to commit the crime. They were, therefore, properly admitted into evidence. The fact that the shells were not positively identified as being from the gun used in the crime does not make the shells incompetent as evidence but merely goes to the weight of that evidence. State v. Wilson, supra; see also United States v. Poe, 462 F.2d 195, 198 (5th Cir. 1972). The trial court did not abuse its discretion in admitting the shells into evidence.

There is no error.

In this opinion the other judges concurred.


author: Dupont, C. J.

text:
    State of Connecticut v. Ronald J. Griffin
    (5216)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released September 1, 1987

      James J. Ruane, for the appellant (defendant).

      MichaelE. O’Hare, assistant state’s attorney, with whom, on the brief, were Stephen Sedensky, assistant state’s attorney, Susann E. Gill, deputy assistant state’s attorney, and William R. Korey, legal intern, for the appellee (state).
   Dupont, C. J.

The defendant was charged with attempted sexual assault in the third degree, a violation of General Statutes §§53a-49(a) and 53a-72a (a) (1) (A), and with assault in the second degree, a violation of General Statutes § 53a-60. After a trial to a jury, the defendant was convicted of attempted sexual assault in the third degree and of assault in the third degree, in violation of General Statutes § 53a-61. On appeal from the judgment of conviction, he alleges that the trial court erred in the denial of his motion to suppress his out-of-court and in-court identifications, and in charging the jury on assault in the third degree as a lesser included offense of assault in the second degree.

The defendant argues that the pretrial and in-court identifications made by the victim were obtained as a result of impermissibly suggestive procedures and were unreliable and, therefore, constitutionally invalid. Our review of the record reveals that his claim is unsupported, and that the procedures were neither impermissibly suggestive, nor unreliable. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983); State v. Hamele, 188 Conn. 372, 377, 449 A.2d 1020 (1982); State v. Gordon, 185 Conn. 402, 416, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. DeJesus, 7 Conn. App. 309, 315, 508 A.2d 463 (1986).

The second claim of error raised by the defendant is that the trial court erred in charging the jury on assault in the third degree as a lesser included offense of assault in the second degree. The state requested this charge. The defendant, however, did not except to it, and therefore urges review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The defendant alleges that he was denied due process of law because he was convicted of a crime without any notice that he was being tried for its commission.

In order to determine whether the defendant’s claim is reviewable under the Evans doctrine, we must answer two questions in the affirmative. The first is does the defendant raise an issue which by its terms implicates a fundamental constitutional right, and the second is can we conclude, upon a limited review of the record, that the claim is truly of constitutional proportions rather than merely being characterized as such by the defendant. State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987). Here, the defendant has raised a claim which implicates a fundamental constitutional right; see State v. Martin, 187 Conn. 216, 218-19, 445 A.2d 585 (1982); but a limited review shows that his claim is not supported by the record, and does not come close to being of constitutional stature.

The defendant does not argue that assault in the third degree is not a lesser included offense of assault in the second degree, and concedes that notice of the principal charge constitutes notice as to all proper lesser included offenses. State v. Jacobowitz, 182 Conn. 585, 591, 438 A.2d 792 (1981). The defendant argues that because he did not directly dispute at trial the nature and extent of the injuries sustained by the victim, he could not be charged with a crime requiring “physical injury” rather than “serious physical injury.” The defendant contends, therefore, that the jury had only to determine whether it was the defendant who had committed the acts alleged, and not whether the victim had suffered the degree of injury necessary to support a conviction of assault in the second degree.

We fail to see how the defendant’s decision not to challenge the evidence concerning the victim’s injury supports his claim that he was deprived of due process because he did not have notice that he could be found to have inflicted a less severe degree of injury on the victim. The degree of injury sustained, like each and every other element of the crimes charged, had to be proved by the state beyond a reasonable doubt and was a factual issue for the determination of the jury.

Here, the proof of the element of either physical injury or serious physical injury differentiates the lesser offense from the offense charged and was sufficiently in dispute to permit the jury to find the defendant innocent of the greater offense but guilty of the lesser. See State v. Whistnant, 179 Conn. 587, 606, 427 A.2d 414 (1980). It matters not that the defendant did not dispute whether the victim suffered physical injury or serious physical injury. The court did not err in charging the jury on assault in the third degree.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in pertinent part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-61 provides in pertinent part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       The distinction as to the requisite degree of physical injury is demonstrated by comparing the elements of second degree assault; footnote 1, supra; with third degree assault. Footnote 2, supra. The definitions of these distinct degrees of physical injury are included in General Statutes § 53a-3, which provides:
      “(3) ‘Physical injury’ means impairment of physical condition or pain;
      “(4) ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”
      The defendant relied on an alibi defense and did not challenge the state’s evidence as to the nature and extent of the victim’s injuries.


author: Bieluch, J.

text:
    State of Connecticut v. Joseph Williams
    (4986)
    Hull, Daly and Bieluch, Js.
    Argued May 13
    decision released September 8, 1987

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, was Arthur C. Hadden, assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from his judgment of conviction rendered in accordance with the jury’s verdict of guilty on the following charges: possession of narcotics with intent to sell or dispense in violation of General Statutes § 21a-277 (a); possession of narcotics in violation of General Statutes § 21a-279 (a); possession of marihuana in violation of General Statutes § 21a-279 (c); and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). He claims in this appeal that his convictions on the first and second counts for possession of narcotics with intent to sell and possession of narcotics, respectively, violate the federal and state prohibitions against double jeopardy. He also challenges the sufficiency of the evidence to support the jury’s finding in the third count that the defendant possessed the marihuana found in the bedroom dresser. Finally, the defendant claims that the court’s use of examples to illustrate the element of possession constituted an illegal expansion of that element. We find error.

The jury could reasonably have found the following facts: On June 27,1985, at approximately 12:30 p.m., several members of the New Haven police department executed a search warrant for an apartment at 11 Northwest Drive, New Haven. The apartment was rented to Alexis Laing, who lived there with the defendant and her son.

One of the officers executing the warrant, Fredrick Hurley, knocked on the door of the apartment and, after hearing no response, entered through the front door. Upon his entry, he immediately went to the master bedroom on the second floor. There he found the defendant alone, lying naked on the bed, and wearing only a pair of socks. The defendant was seen rising from a reclining position on the bed. The only occupant of the apartment at that time was the defendant.

On the bed, approximately at an arm’s length from the defendant, was a sandwich bag box from which protruded a plastic bag containing what was determined to be cocaine. A search of the sandwich bag box uncovered a smaller plastic bag containing cocaine, seventeen small tin foil packets or envelopes of cocaine, and two glassine bags. One of the glassine bags contained quinine and procaine. The second glassine bag contained a mixture of heroin, cocaine and quinine.

A further search of the bedroom yielded three manila envelopes containing marihuana. These envelopes were found in the top drawer of the dresser. Other items seized from the top of the dresser included razor blades, small manila envelopes, a roll of aluminum foil, a set of measuring spoons, cigarette rolling paper and a small grinder or strainer. In the first floor kitchen, aluminum foil, bottles of inositol, and a cent-o-gram scale were seized by the police.

The total amount of narcotics seized was as follows: 79.72 grams (2.81 ounces) of cocaine; 80 milligrams (.10 ounce) of heroin; and 4.97 grams (.17 ounce) of marihuana.

The defendant was arrested and subsequently charged in four counts as follows: count one, possession of narcotics, to wit, cocaine, with intent to sell, a violation of General Statutes § 21a-277 (a); count two, possession of narcotics, to wit, heroin, a violation of General Statutes § 21a-279 (a); count three, possession of marihuana, a violation of General Statutes § 21a-279 (c), and count four, possession of drug paraphernalia, a violation of General Statutes § 21a-267 (a). He pleaded not guilty to the charges and elected to be tried by a jury.

At the close of the state’s case, the defendant made an oral motion requiring the state to elect between the first and second counts of the information, arguing that it was a violation of double jeopardy to convict and sentence the defendant for both possession of a narcotic substance with intent to sell, and possession of a narcotic substance. The trial court denied the motion. At that time, the defendant also moved for a judgment of acquittal, arguing that the evidence was insufficient to establish that the defendant had in-hand possession of the narcotics and marihuana or exclusive possession of the apartment in which they were found. This motion was also denied. Thereafter, the defendant presented his evidence and the case was submitted to the jury, which rendered a verdict of guilty on all four counts. The defendant was sentenced accordingly.

I

Double Jeopardy

The defendant’s first claim on appeal is that his conviction on count one, possession of narcotics with intent to sell, and on count two, possession of narcotics, violates the federal and state prohibitions against double jeopardy and the right to due process. A claim of double jeopardy which is adequately supported by the record is reviewable under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See, e.g., State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); see also State v. Kitt, 8 Conn. App. 478, 485, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986) (double jeopardy violation recognized as plain error). We find this claim is proper for an Evans review.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’ Connecticut common law also secures this right. See State v. Johns, 184 Conn. 369, 373 n.6, 439 A.2d 1049 (1981). . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. See State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984).” State v. Devino, supra, 73-74.

For the first step of this analysis, we look at the state’s information. Counts one and two of the information charge the defendant with violations of General Statutes §§ 21a-277 (a) and 21a-279 (a), respectively, and allege criminal conduct of the defendant at approximately 12:30 p.m., on June 27,1985. There can be no doubt that the offenses for which the defendant was charged and convicted arose out of the same act of possession of the two narcotic substances simultaneously at the same time and place. See State v. Devino, supra, 74.

The state argues that the narcotics violations alleged in counts one and two do not constitute the same act or transaction because count one referred to the possession and sale of cocaine, and count two referred to the possession of heroin. We note, however, that there is no indication that the legislature intended to authorize multiple punishment for the simultaneous possession of more than one narcotic. State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). Although the crimes of possession and possession with intent to sell both prohibit illegal transactions involving narcotic substances, a prosecutor may not create one offense of each from a single transaction by particularizing various narcotic substances in separate counts. Id., 120. We find, therefore, that this distinction relied upon by the state is insufficient to base a finding that the two offenses were not the same act or transaction.

"With respect to the second condition, ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In making this determination, we look only to the information and the bill of particulars. State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977). ‘The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an included crime.’ State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972). Viewed schematically, a lesser included offense is a concentric circle within the greater offense whereas separate but overlapping offenses may be seen as intersecting circles.” State v. Amaral, 179 Conn. 239, 242-43, 425 A.2d 1293 (1979).

Applying this test to the crimes for which the defendant was convicted, we conclude that a person could not commit the greater offense of possession of a narcotic substance with the intent to sell without, likewise, having committed the lesser offense of simple possession. State v. Amaral, supra, 243; see State v. Goldson, 178 Conn. 422, 423 A.2d 114 (1979) (conviction of possession of heroin and of transportation of heroin violated the constitutional prohibition against double jeopardy); see also State v. Nieves, 186 Conn. 26, 438 A.2d 1183 (1982) (possession of narcotics treated as lesser included offense of possession with intent to sell); cf. State v. Devino, supra, 75 (conviction for possession of narcotics and for illegal sale of narcotics not a violation of double jeopardy; one may either possess narcotics legally yet sell them illegally or sell narcotics without possessing them).

“[E]ven if offenses are the same under Blockburger v. United States, [supra], the legislature may nevertheless explicitly authorize multiple punishments for their commission without violating the prohibition of double jeopardy. See Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984); Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).” State v. Devino, supra, 76 n.6.

We find nothing on the face of these two criminal statutes, nor have the parties indicated the existence of any legislative history that indicates the legislature’s intent to provide multiple punishments for simple possession of narcotics and possession with intent to sell. The state’s argument to the contrary notwithstanding, “[u]nless a clear intention to fix separate penalties for each [offense] involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses.” State v. Rawls, supra, 122.

Because the crimes of possession of narcotics, and possession with intent to sell constitute parts of a single offense; State v. Amaral, supra, 245; and there is no expression of legislative intent that the crimes warrant separate punishment, the defendant’s conviction on both counts violated the constitutional and common law prohibitions against double jeopardy.

There remains for our consideration of this issue the proper scope of our remand. Had the trial court properly treated the charges of possession with intent to sell and simple possession as greater and lesser included offenses, respectively, it would have made it unnecessary in this case for the jury to consider the lesser offense after finding guilt on the greater. Double jeopardy would have been precluded. We now must circumscribe our order of remand for the trial court to render the proper judgment of conviction and sentence.

The Supreme Court in State v. Rawls, supra, after finding duplicitous convictions of possession of cocaine and possession of heroin, set aside the judgment on the latter possession of narcotics count.

In State v. Amaral, supra, 245, after holding that the three heroin charges were parts of a single offense, the court found it “necessary for the judgment to be modified so as to reflect only a sentence of not less than five nor more than ten years imprisonment on the greater offense, sale by a non-drug-dependent person.” After finding that the crime of possession of heroin was a lesser included offense of the crime of transportation of heroin, the court in State v. Goldson, supra, 427, remanded the case with direction to render judgment for the defendant on the first count of the information charging him with such possession of heroin. This court in State v. Stellato, 10 Conn. App. 447, 457, 523 A.2d 1345 (1987), set aside the judgment of conviction on the lesser of the duplicitous counts and remanded with direction to render judgment of not guilty on that charge. In State v. Kitt, supra, 490, the direction was given to the trial court to exercise its discretion and set aside the conviction on either of the two conspiracy counts of unequal severity and to render judgment that the defendant was not guilty on that count.

In Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), the United States Supreme Court held that the vacating of a duplicitous federal criminal conviction by the district court was the only remedy consistent with the congressional intent against multiple punishments. Id., 864. “One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368 [103 S. Ct. 673, 74 L. Ed. 2d 535] (1983). The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries societal stigma áccompanying any criminal conviction. . . . Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.” (Emphasis in original; citations omitted.) Ball v. United States, supra, 864-65.

Following the reasoning of Ball v. United States, supra, we conclude that multiple convictions for the same offense constitute impermissible punishment under the prohibition against double jeopardy. The defendant’s conviction on the lesser included offense of possession of narcotics, in violation of General Statutes § 21a-279 (a), which was contained in the second count must therefore be set aside by the trial court and judgment rendered for the defendant on that count. See Ball v. United States, supra; State v. Rawls, supra, 122; State v. Amaral, supra; State v. Goldson, supra; State v. Stellato, supra; State v. Kitt, supra.

II

Sufficiency of Evidence of Possession

The defendant’s second claim is that the evidence was insufficient to support the jury’s verdict of guilty on count three, possession of marihuana in violation of General Statutes § 21a-279 (c). “ ‘In reviewing such a claim, we view the evidence, as we have repeatedly stated, with a view toward sustaining the verdict of the jury. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, “it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” ’ ” (Citations omitted.) State v. Vilalastra, 9 Conn. App. 667, 673, 521 A.2d 170, cert. granted, 203 Conn. 806, 525 A.2d 521 (1987).

It is clear from the evidence that the defendant was not in exclusive possession of the premises where the marihuana was found. There were, however, other incriminating circumstances which support the inference that the defendant constructively possessed the marihuana found in the top dresser drawer. It is undisputed that the room where the marihuana was located was the bedroom of the defendant, which he shared with Laing. Aside from the double bed, the dresser from which the marihuana was seized was the only piece of furniture in the room. The officer who discovered the marihuana testified that the top drawer in which he found the substance also contained men’s jewelry. The defendant was found lying on the bed, at an arm’s length from a large quantity of cocaine. Furthermore, the police discovered over $1000 in the defendant’s wallet, which was on the dresser, and over $300 in the defendant’s socks, which he was wearing at the time. On the basis of this evidence, the jury’s conclusion that the defendant knew of the presence of the marihuana and exercised control over it was reasonable.

Ill

Jury Instructions

The defendant further claims that the court’s use of examples in its instructions to the jury on the element of possession erroneously expanded the scope of this element. The defendant relies upon the following examples of possession given by the court during its charge: “I possess, for example, this book on the desk in front of me, even though it actually belongs to the State of Connecticut, simply because it is before me and subject to my control and dominion. I also possess a briefcase which happens to be in my chambers because it is also under my control. I possess my car, which is out in the parking lot, because it is also under my control. I also possess furniture and other items in my home, even though I am not actually there now, for the same reason; because they are under my control and dominion. . . . Now, sometimes more than one person may possess the same item. This is known as joint possession. For example, the furniture in my home or in someone’s home might be jointly owned by husband and wife.” “ ‘ “In considering whether an illustration is fair or prejudicial, it is necessary to consider the instructions as a whole and all the facts and circumstances surrounding the trial and shown by the evidence, such as the complexity or simplicity of the issues and the multiplicity of facts.” Luteran v. United States, 93 F.2d 395, 401 (8th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 642, 82 L. Ed. 1103 (1938).’ ” State v. Stepney, 191 Conn. 233, 248, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The defendant’s first contention is that the examples given by the court refer to the proximity of the item possessed and the person deemed to have possession of such item. The defendant claims that such examples were contrary to the limitation upon constructive possession set forth in State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985).

In State v. Alfonso, supra, 634-35, the court held that the mere presence of marihuana in the kitchen of an apartment shared by the defendant and two other persons did not support the inference that the defendant knew of its presence or exercised dominion and control over it. The court held that additional evidence, circumstantial or supportive, was required to warrant such an inference.

We find nothing in the trial court’s charge which is contrary to State v. Alfonso, supra, or which could have reasonably misled the jury on the element of possession. Nowhere in the trial court’s instructions was the jury told that it may infer possession merely because the defendant was in close proximity to the narcotics. To the contrary, the jury was instructed that “where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that he knew of the presence of the narcotics and had control over them unless there are other incriminating circumstances tending to buttress such an inference.” Considering the instructions as a whole, we find that the jury was charged correctly on the element of possession in accordance with the holding of State v. Alfonso, supra. See State v. Stepney, supra.

The defendant further alleges that the trial court erred by not cautioning the jury that the examples given during its instructions are only examples, and that they must determine guilt or innocence by following the jury instructions as a whole. See State v. Stepney, supra, 247-48. At trial, the defendant took no exception to the court’s charge on this basis. We shall not, therefore, review this claim further, other than to note that the failure to caution the jury in this case does not constitute plain error. See Practice Book § 4061.

There is error in part, the judgment as to count two, possession of narcotics in violation of General Statutes § 21a-279 (a) is set aside and the case is remanded to the trial court with direction to render judgment that the defendant is not guilty on that count.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”

       “[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       “[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions. . . . (c) Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, may be fined not more than one thousand dollars, or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense may be imprisoned not more than five years, or fined not more than three thousand dollars or be both fined and imprisoned.”

       “The definition of ‘narcotic substance’ in General Statutes . . . § 21a-240 (30), expressly includes both cocaine and heroin.” State v. Rawls, 198 Conn. 111, 120 n.6, 502 A.2d 374 (1985).

       See footnote 3, supra. Our review of the defendant’s challenge to the sufficiency of the evidence is still governed by the principles announced in State v. Rutan, 194 Conn. 438, 479 A.2d 1209 (1984). See State v. Smith, 9 Conn. App. 330, 334, 518 A.2d 956 (1986).
      The defendant does not challenge the sufficiency of the evidence as to his convictions on counts one, two and four.

       The state’s petition to the Supreme Court for certification limited to the issues of (1) whether the Appellate Court erred in imposing on the state the burden of proving harmlessness beyond a reasonable doubt with respect to erroneous rulings on evidence, and (2) whether the trial court erred in admitting opinion testimony of trained and experienced police officers concerning possession of narcotics with intent to sell, was granted. See State v. Vilalastra, 203 Conn. 806, 525 A.2d 521 (1987).

       The examples of possession given by the trial court are identical to those upheld on appeal in State v. Hill, 201 Conn. 505, 513 n.5, 523 A.2d 1252 (1986), and State v. Williams, 169 Conn. 322, 335 n.2, 363 A.2d 72 (1975).

       The defendant’s further claim that the court erred in instructing the jury, by way of example, that the book on the bench was possessed by the trial judge because it was in front of him and “subject to my control and dominion.” (Emphasis added.) The defendant alleges that the use of the phrase “subject to” undercuts the statutory definition of “possession” which requires that a person “have physical possession or otherwise to exercise dominion or control. . . .” General Statutes § 53a-3 (2). Although we recognize that being “subject to” one’s control or dominion may, in certain contexts, be legally distinguishable from the actual exercise of control or dominion, the defendant’s distinction is drawn with a fine line. Viewing the charge as a whole, we do not find that the jury could reasonably have been misled by the court’s statement. See State v. Hill, 201 Conn. 505, 513-17, 523 A.2d 1252 (1986) (defining the term “possess” and upholding the court’s use of examples identical to those in the present case).