author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. XAVIER WRIGHT
    (AC 18234)
    Lavery, C. J., and Spear and Dranginis, Js.

      Argued January 9
    officially released May 1, 2001

      Timothy E. Welsh, for the appellant (defendant).

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Xavier Wright, appeals from the judgment of the trial court convicting him of two counts of sale of a narcotic substance in violation of General Statutes § 21a-278 (b), two counts of conspiracy to sell a narcotic substance in violation of General Statutes §§ 21a-278 (b) and 53a-48, and one count of sale of a controlled substance within 1500 feet of a private elementary school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) the court improperly permitted the state to introduce evidence that the substance that he sold to an undercover detective was cocaine when the state had destroyed the actual substance and could not prove its chain of custody, (2) his trial counsel rendered ineffective assistance, (3) the court improperly refused to exclude evidence of a drug transaction where he had not been notified that the state had destroyed the actual evidence, (4) a judge trial referee improperly ordered the evidence to be destroyed without the consent of the parties and (5) the state violated his due process rights by failing to disclose the destruction of the evidence to him prior to trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s claims. On January 7, 1997, Detective Carl Caler of the Willimantic police department and the statewide narcotics task force (task force) went to 351 Central Avenue, apartment three, in Norwich, spoke to Connie Gordon and inquired about purchasing cocaine. He negotiated a sale of one “rock” (a piece of crack cocaine) for a price of $20. Gordon pointed to a black male, as yet unknown to Caler, sitting at a nearby table, who appeared to be cutting crack cocaine. She instructed Caler to get the cocaine from him, telling the man to “give him one.” There were more than two dozen similar pieces on the table in front of the man. The man gave one of the rocks to Caler. Caler had opportunities on several future occasions to meet with that man, whom Caler eventually identified as the defendant.

Following that transaction, Caler met with Detective Mark Rankowitz of the Norwich police department, who also was assigned to the task force. Rankowitz performed a field chemical test on the rock that Caler had purchased, which resulted in a positive test for cocaine. Rankowitz then put the rock in a plastic bag, heat sealed the bag, and affixed a tag to it on which he had written the date and time of seizure, the city in which Caler obtained the evidence, his name, his badge number and the police case number. The normal practice is to assign a separate police case number to each transaction.

Caler and Rankowitz then arranged to make another purchase on March 24, 1997, at a different location. When Caler arrived at that location, the person he had intended to meet was not present, but the defendant was present. The defendant informed Caler that he could get cocaine, and the two drove to another address. Caler drove his vehicle, and the defendant rode as passenger.

When they arrived, the defendant went into the house, obtained cocaine from someone inside who had agreed in advance to provide it to him and returned with two rocks of cocaine, which he sold to Caler. The driveway of that house, where the transaction took place, is within 1500 feet of Saint Joseph Elementary School in Norwich. After returning the defendant to the place where they had met, Caler met with Rankowitz and gave him the two rocks of cocaine. Rankowitz placed them in a plastic bag, which was then heat sealed and labeled. Additional facts will be discussed as they become relevant to the claims on appeal.

I

The defendant first claims that the court improperly permitted the state to introduce evidence that the substance that he sold to an undercover detective was cocaine when the state had destroyed the actual substance. The defendant bases his claim on his contention that the state failed to prove adequately the chain of custody from the seizure of the substance to its delivery to the state toxicological laboratory, and that therefore both the fact of its seizure and the testimony about its chemical composition should have been excluded from evidence at trial. We disagree.

The following additional facts and procedural history are relevant to our consideration of the defendant’s claim. Gordon, the person to whom Caler first spoke on January 7, 1997, about purchasing crack cocaine and who collected the money in the sale, was also prosecuted in connection with that sale. The officers documented the seizure on the appropriate form, listing Gordon as the defendant. Due to a scrivener’s error, however, the incorrect police case number was written on the form. When Gordon’s case was disposed of, the court, Hon. Joseph J. Purtill, judge trial referee, ordered the substance destroyed, and it was in fact destroyed.

Following its seizure, the substance was sent for testing to the state’s toxicology laboratory, where Joel R. Milzoff, a toxicologist, analyzed the substance and identified it in his report as cocaine in a freebase or nonsalt form. The defendant objected to the introduction at trial of both the report Milzoff prepared and Milzoff s testimony. The court overruled both objections.

Before turning to the substance of the defendant’s claim concerning the failure to preserve the evidence, we first address his additional claims that the state failed to lay an adequate foundation for the introduction of either the toxicological report or Milzoff s testimony about the nature of the substance that was seized.

The defendant claims that the chain of custody of the seized drugs was never adequately proven at trial. He specifically points to a “gap” in that chain created by the difference between the case numbers noted on the exhibits, which differed by one digit from the case number of the defendant’s arrest. At trial, Rankowitz testified as to the cause of that difference, a scrivener’s error. The court found his testimony to be credible. The defendant at trial failed to produce any evidence to rebut Rankowitz’s testimony or to offer a contrary explanation. The chain of custody was thus sufficiently demonstrated by the testimony of all of the officers who handled the evidence from its seizure to its delivery to the laboratory, with the gap filled by Rankowitz’ explanation. In State v. Slimskey, 59 Conn. App. 341, 349, 757 A.2d 621, cert. granted on other grounds, 254 Conn. 938, 761 A.2d 764 (2000), we approved of the admission of evidence with a similar gap in the chain of custody.

“In State v. Morales, 232 Conn. 707, 727, 657 A.2d 585 (1995), our Supreme Court held that in determining whether the state’s failure to preserve evidence has resulted in a violation of a defendant’s due process right under article first, § 8 [of the constitution of Connecticut], a trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Kilroy, 61 Conn. App. 164, 173, 763 A.2d 59 (2000).

In this situation, it is not entirely the case that the evidence was missing. Although the substance seized was destroyed by the police, it was first tested by the state’s toxicology laboratory, which found that it was cocaine in a freebase or nonsalt form. The report that the laboratory prepared is admissible as a business record, pursuant to General Statutes § 52-180 (a), which provides in relevant part: “Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.” Our Supreme Court has stated that “[s]ection 52-180 should be liberally construed. . . . Appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion.” (Citations omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991).

The report that Milzoff prepared clearly fits that definition. It was made in the regular course of his business with the state’s toxicological laboratory. It was the regular course of the laboratory’s business to make a report of its findings as to the composition of an unidentified substance thought to be narcotics. The report was made either contemporaneously with the actual analysis of the substance or shortly thereafter. It thus fits the definition of a “business record,” and therefore, under § 52-180, “shall be admissible as evidence of the act, transaction, occurrence or event” at issue.

Further, General Statutes § 54-36g, the statute governing the destruction of controlled substances seized in arrests, governs what should happen in criminal cases tried following the destruction of the controlled substance. Section 54-36g (a) provides in relevant part: “[The order of destruction] shall be in writing and shall provide for the analysis of representative samples of such controlled drug .... The results on such analysis shall be recorded on a certificate signed by the person making the analysis, witnessed and acknowledged pursuant to section 1-29. Such certificate shall be prima facie evidence of the composition and quality of such controlled drug [or] controlled substance . . . .” (Emphasis added.) The last sentence quoted would be meaningless unless the legislature had contemplated that the destruction might take place before the trial of the defendant from whom the drugs were seized and inserted it to ensure that the destruction of the drugs would not provide the defendant with a simple way to avoid prosecution, namely to demand production of the actual drugs and to move for dismissal when informed that they had been destroyed.

With both the report and Milzoff s testimony before the court, the question is whether, notwithstanding their presence, the absence of the actual substance warrants reversal of the judgment. Although the actual substance would be material evidence of whether the defendant actually sold cocaine to the police, the record of the testing by the toxicologist who performed that testing and his testifying at trial serve significantly to reduce the likelihood of mistaken interpretation by the court. The record amply demonstrates further that the reason for the nonavailability of the evidence was the result of nothing other than a clerical error. Because the laboratory report was available, there could have been no discernible prejudice to the defendant from the unavailability of the actual drugs.

We thus reject the claim by the defendant and conclude that the court did not improperly permit evidence of the character of the substance seized when the actual substance had been destroyed.

II

The defendant next claims that the court improperly refused to exclude evidence of a drug transaction because the defendant had not been notified that the state had destroyed the actual evidence. We are not persuaded.

Because the defendant did not preserve his claim at trial, he seeks review under the plain error doctrine pursuant to Practice Book § 60-5. “[Our Supreme Court] previously [has] held that [p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). . . . Santopietro v. New Haven, 239 Conn. 207, 216, 682 A.2d 106 (1996). An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice. . . . Plain error review may be appropriate where consideration of the question is in the interest of public welfare . . . .DiNapoli v. Cooke, 43 Conn. App. 419, 426, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699, 137 L. Ed. 2d 825 (1997).” (Internal quotation marks omitted.) State v. Velasco, 253 Conn. 210, 218-19 n.9, 751 A.2d 800 (2000). “Furthermore, the defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . Moreover, because the claim raised here is nonconstitutional, the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” (Citation omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 389, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

The defendant relies on § 54-36g (a), which provides in relevant part: “At any time after the seizure of a controlled drug or a controlled substance ... in connection with a criminal arrest . . . the prosecuting official of the court for the geographical area in which the criminal offense is alleged to have been committed may petition the court for destruction of such controlled drug [or] controlled substance .... After notice . . . to the defendant and his attorney, and hearing on the petition, the court may order the forfeiture and destruction of such controlled drug [or] controlled substance ... as soon as possible. . . .”

In this case, the evidence was destroyed because the criminal case involving Gordon, the other person involved in the transaction, had been concluded. The cocaine, because of a clerical error, had been labeled with the incorrect case number, which corresponded to the case against Gordon.

The problem with the defendant’s claim is that he does not, and indeed cannot, demonstrate what harm he has suffered, a clear requisite for a finding of plain error. His claim is that because he was not notified that the drugs had been destroyed, all evidence about the transaction should have been excluded from his trial. We fail to see, however, in what way the outcome of the case would have differed had the defendant been notified properly of the destruction and thus why a “manifest injustice” would result if the verdict is permitted to stand, a prerequisite for this court to find plain error.

The defendant can point to no “untaken action” by him or his trial counsel that was prevented by the failure to notify him of the destruction of the evidence. We stress that the defendant claims error not in the destruction itself, but in the mere failure to notify. The defendant is indeed correct in asserting that the law requires that he be notified and that he in fact was not notified. We can see no injury that he has incurred, however, as a result of that oversight. We thus decline to disturb the judgment on that basis.

Ill

The defendant next claims that a judge trial referee improperly ordered the drugs destroyed without the consent of the parties. We disagree.

Because the defendant did not preserve his claim at trial, he seeks review under the plain error doctrine, which is discussed in more detail in part II. The gravamen of the defendant’s claim is that because General Statutes § 52-434 (a) and Practice Book § 44-19 provide that judge trial referees may only exercise jurisdiction over cases with the consent of the parties, and because the defendant never consented to the judge trial referee’s jurisdiction over the case, it was unlawful for the referee to order the destruction of the drugs.

As discussed in part I, however, the judge trial referee was involved in the case when all parties believed that the drugs were connected only with the case properly before him, that of Gordon. Although that belief turned out to be inaccurate, it was nevertheless the case that at all relevant times, the parties before the judge trial referee believed that he had jurisdiction to order the destruction of the drugs.

The defendant can point to no harm that came to him as a consequence of a judge trial referee, rather than a judge, ordering the destruction of the cocaine. He posits no reason for us to conclude that a judge, acting under the same mistake of fact, would have done anything differently.

We stress that the defendant claims error not in the destruction of the evidence itself, but in the mere failure to obtain his consent to have the case heard by a judge trial referee. The defendant correctly claims that the law requires that he consent to the handling of the case by a judge trial referee, and that such consent was not obtained because the judge trial referee was not handling the defendant’s case and those involved in Gordon’s case did not object. We are not persuaded, however, that the action of the judge trial referee amounted to a “miscarriage of justice” or affected the “fairness and integrity of and public confidence in the judicial proceedings.” State v. Velasco, supra, 253 Conn. 218-19 n.9. There is no plain error, and we decline to disturb the judgment on that basis.

IV

The defendant’s final claim is that the prosecutor violated his due process rights by failing to inform him of the pretrial destruction of the drugs. Again, because his claim was not preserved at trial, the defendant asks this court for review under the plain error doctrine. Practice Book § 60-5. We find no plain error and therefore decline to review the defendant’s claim.

We note that the defendant’s claim is essentially identical to that raised in part II, the only difference being that the alleged impropriety here is on the part of the prosecutor as opposed to the court. The problem with the defendant’s claim is that he does not, and indeed cannot, demonstrate what harm he has suffered, a clear requisite for a finding of plain error. His claim is that because he was not notified that the drugs had been destroyed, all evidence about the transaction should have been excluded from his trial. We fail, however, to see what difference there would have been in the outcome of the case had the defendant been notified by the prosecutor of the destruction and thus why a “manifest injustice” would result if the verdict is permitted to stand, a prerequisite for this court to find plain error.

The defendant can point to no “untaken action” by him or his trial counsel that was prevented by the prosecutor’s failure to notify him of the destruction of the evidence. Again, the defendant’s alleged error is the mere failure to notify. The defendant correctly asserts that the law requires that he be notified and that he in fact was not notified. We can see no injury that he has incurred, however, as a result of that oversight. We thus decline to disturb the judgment on that basis.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells ... to another person any narcotic substance . . . except as authorized in this chapter, and who is not at the time of such action a drug-dependent person . . . shall be imprisoned . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278 by . . . selling ... to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a . . . private elementary . . . school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278. . .

       We decline to review the defendant’s claim because “a claim of ineffective assistance of counsel is more properly pursued on a petition for [a] new trial or on a petition for a writ of habeas corpus rather than on direct appeal.” (Internal quotation marks omitted.) State v. Mims, 61 Conn. App. 406, 409, 764 A.2d 222, cert. denied, 255 Conn. 944, 764 A.2d 222, cert. denied, 255 Conn. 944, 769 A.2d 60 (2001), quoting State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).
      “[A]n ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” (Internal quotation marks omitted.) State v. Mims, supra, 61 Conn. App. 409, quoting State v. Laracuente, 57 Conn. App. 91, 97, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000). Therefore, we conclude that the defendant’s claim is not properly pursued on direct appeal.

       The case number written on the form was Z97-00322-7; however, the correct case number for the defendant in this case was Z97-00322-8. The former number corresponds to the case number for the case concerning Connie Gordon. That number, once used on the form, continued to be used with reference to the evidence.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BENNIE GENE GRAY, JR.
    (AC 19862)
    (AC 19889)
    Landau, Zarella and Dupont, Js.
    Argued December 6, 2000
    officially released May 1, 2001

      Matthew T. Gilbride, for the appellant (defendant).

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

In these consolidated cases, the defendant, Bennie Gene Gray, appeals from the judgments of conviction, rendered by the trial court subsequent to his pleas of guilty to the charges of possession of heroin with intent to sell in violation of General Statutes § 2 la-277 (a), possession of narcotics in violation of General Statutes § 21a-279 (a) and violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the court improperly denied (1) his motion to withdraw his guilty pleas because he (a) did not knowingly and voluntarily plead guilty and (b) was denied the effective assistance of counsel, and (2) his motion to transfer the cases to a particular trial court for sentencing. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our review of the defendant’s claims. On October 16, 1997, the defendant, accompanied by his counsel from the public defender’s office, appeared before the court, Miaño, J., and pleaded guilty to the charges of possession of heroin with intent to sell, possession of narcotics and violation of probation. Prior to accepting the guilty pleas, Judge Miaño canvassed the defendant and concluded that the defendant’s plea was knowing, voluntary and tendered with the effective assistance of counsel. The state and the defendant had entered into a plea agreement with respect to the narcotics offenses, whereby the state would recommend a total effective sentence of ten years incarceration, execution suspended after three years and three years probation. Judge Miaño ordered a presentence investigation. Before the hearing concluded, Judge Miaño stated to the defendant, “I think you’re an unusual young man, and if you get in trouble between now and December second, it’s going to hurt you. It’s not going to help you.”

On November 20, 1997, the defendant was arrested and charged with murder. On February 11, 1998, prior to being sentenced for the crimes at issue here, the defendant moved to withdraw his guilty pleas, and private counsel entered an appearance on behalf of the defendant in lieu of the public defender. The defendant subsequently amended his motion to withdraw his guilty pleas. Because he had an ongoing business relationship with the defendant’s private counsel, Judge Miaño recused himself from the cases and assigned them to another court, Parker, J., for sentencing.

On July 21,1998, following a hearing conducted over several days, Judge Parker denied the defendant’s amended motion to withdraw his guilty pleas. On July 24, 1998, the day he was scheduled to be sentenced, the defendant filed a motion requesting that the cases be transferred to Judge Miaño for sentencing. Judge Parker denied the motion to transfer and sentenced the defendant to a total effective sentence of ten years imprisonment, suspended after three years and three years probation in accordance with the plea agreement, in addition to the reinstatement of the six months incarceration on a previous conviction as a youthful offender. See footnote 2. The defendant appealed.

I

The defendant’s first claim is that Judge Parker improperly denied his motion to withdraw his guilty pleas in violation of Practice Book § 39-27 because (1) the court accepted his pleas without substantial compliance with Practice Book § 39-19 and, therefore, the defendant did not knowingly and voluntarily plead guilty, and (2) he was denied effective assistance of counsel. We disagree.

A

The defendant claims that Judge Parker improperly denied his motion to withdraw his guilty pleas in violation of Practice Book § 39-27 because his pleas were not accepted in substantial compliance with Practice Book § 39-19. Specifically, the defendant claims that his pleas were not knowing and voluntary because Judge Miaño misstated the maximum possible sentence confronting him on the two narcotics charges, which is a violation of Practice Book § 39-19 (4). He also claims that his public defender misled him.

1

The following portion of Judge Miano’s canvass of the defendant pertains to our resolution of this claim.

“The Court: Now, on possession with intent to sell, § 21a-277 (a), your exposure here by law is not less than one year, which is suspendable, up to fifteen years in jail and up to a $50,000 fine. Do you [understand] that?

“The Defendant: Yes, Your Honor.

“The Court: Okay. And as to the possession of narcotics charge under § 21a-279 (a), the penalty is up to seven years and not less than one year, which is suspendable, up to seven years in jail and again up to a $50,000 fine. Do you understand that?

“The Defendant: Yes, Your Honor.

“The Court: All right. So your exposure here by law is not less than one year, which is suspendable, up to twelve years in jail and up to a $100,000 fine. Do you understand that?

“The Defendant: Yes, Your Honor.

“The Court: And added on top of that would be the six months for the violation of probation. Do you understand that?

“The Defendant: Yes, Your Honor.

“The Court: So your exposure here is not less than one year, which is suspendable, up to twelve years and six months in jail. Do you understand that?

“The Defendant: Yes, Your Honor.”

The misstatement identified by the defendant is that Judge Miaño said the total possible sentence was twelve years and six months rather than twenty-two years and six months, which is the sentence the defendant potentially faced for the narcotics violations, i.e., fifteen years plus seven years.

“[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion . . . and that [t]he burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. . . . Those statements, however, apply only to the withdrawal of pleas which are valid in the first instance. . . . Before the imposition of a sentence the trial court is required to permit the withdrawal of a plea of guilty upon proof of any of the grounds set forth in Practice Book § [39-27]. . . . One of these grounds is that [t]he plea was accepted without substantial compliance with [Practice Book § 39-19].” (Citations omitted; internal quotation marks omitted.) State v. Bowden, 53 Conn. App. 243, 247-48, 729 A.2d 795 (1999).

“The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands ... (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from the consecutive sentences and including, when applicable the fact that a different or additional punishment may be authorized by reason of a previous conviction . . . .” Practice Book § 39-19. “Practice Book § [39-19 (4)] is an express recognition [t]hat the defendant’s awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty. . . . The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty. . . . Accordingly, Practice Book § [39-19 (4)] require[s] that the court determine that the defendant fully understands those consequences. . . . We must determine whether the trial court’s failure to inform the defendant accurately of the maximum possible sentence to which his plea exposed him fell below the standard that constitutes substantial compliance with § 39-19 (4).” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Bowden, supra, 53 Conn. 248-49.

The defendant relies on State v. James, 197 Conn. 358, 361, 497 A.2d 402 (1985), and State v. Bowden, supra, 53 Conn. App. 243, in support of his argument without distinguishing the facts of either of those cases from the facts here. In James, the trial court completely failed to inform the defendant of the maximum possible sentence, and in Bowden, the trial court mistakenly informed the defendant that he faced a maximum sentence of thirty years when he actually faced twenty years imprisonment. The judgments in James and Bow-den were reversed on appeal because the trial courts in those cases did not substantially comply with Practice Book § 39-19 (4). We are not presented with a similar factual scenario here.

The following additional facts concerning the hearing on the defendant’s motion to withdraw his guilty pleas before Judge Parker are necessary to our resolution of the defendant’s claim. During the hearing, the defendant admitted that Judge Miaño correctly informed him of the maximum term for each of the narcotics offenses with which he was charged. He also admitted that he could add, and that he knew that fifteen and seven equal twenty-two. The defendant’s claim tests the bounds of credulity. In Bowden, the trial court overstated the maximum sentence that could be imposed against the defendant, and that overstatement may have induced the defendant to accept the state’s recommendation. State v. Bowden, supra, 53 Conn. App. 250. Here, where the court understated the maximum sentence, it is unlikely that this misstatement had any effect on the defendant’s decision to plead guilty. Given the fact that the defendant had knowledge of the maximum term of each of the narcotics offenses, we conclude, therefore, that the defendant’s guilty pleas were made knowingly and voluntarily, and that Judge Parker did not improperly deny the defendant’s motion to withdraw his guilty pleas because Judge Miaño substantially complied with Practice Book § 39-19.

2

The defendant also claims that his public defender misled him by assuring him that, despite the plea agreement, the court would sentence the defendant to probation only. That claim lacks merit as well.

The defendant’s public defender took the witness stand and testified as follows in response to the prosecutor’s question as to exactly what he advised the defendant concerning the parameters of the plea agreement: “That he could receive on sentencing day a sentence up to three years of imprisonment followed by a period of probation, during which period of probation the unexecuted balance of the sentence would be hanging over his head as the deterrent in a possible future sentence should he violate any of the conditions of his probation, and that would be the maximum sentence that he could receive. The least sentence that he could receive would be a fully suspended sentence. Well, a fully suspended sentence is certainly what I told [the defendant] would be the least sentence that he could receive, with the suspended portion being as much as, theoretically, as much as ten years and the probation period being as much as three years.” The public defender had eighteen years of experience. The only evidence the defendant produced during the hearing to counter that testimony was his own testimony.

That evidence required the court to weigh the credibility of the parties. We repeatedly have stated that credibility is a matter for the trier of fact to determine. “In a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . Where there is conflicting evidence . . . we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine.” (Citation omitted; internal quotation marks omitted.) State v. James, 237 Conn. 390, 407, 678 A.2d 1338 (1996). “On appeal ... [a] factual finding may be rejected by this court only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Coscuna, 59 Conn. App. 434, 444-45, 757 A.2d 659 (2000). The court also was aware that the defendant may have been motivated to withdraw his guilty pleas on the narcotics charges because he had been charged with murder subsequent to his pleas. Having reviewed the record, we conclude that the court reasonably accepted the public defender’s version of his conversation with the defendant and rejected the testimony of the defendant. We therefore conclude that Judge Parker did not improperly deny the defendant’s motion to withdraw his guilty pleas.

B

The defendant’s second claim is that the court improperly denied his motion to withdraw his guilty pleas because he was denied effective assistance of counsel. We are not persuaded.

A claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. “A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Citations omitted; internal quotation marks omitted.) State v. Lopez, 197 Conn. 337, 342, 497 A.2d 390 (1985).

During the canvass on his guilty plea, Judge Miaño asked the defendant: “And are you satisfied with the advice your [attorney has] given you?” The defendant answered: “Very, Your Honor, yes.” At the hearing before Judge Parker on the defendant’s motion to withdraw his guilty plea and on appeal, the defendant claims that his public defender rendered ineffective assistance because he failed to file a motion to suppress the narcotics that the police found when they arrested the defendant for a curfew violation. The defendant claims that because he was arrested on the date of his eighteenth birthday, a “strong possibility existed” that his arrest for violation of a curfew was improper. He further argues that the public defender should have moved to suppress the evidence that was the result of an illegal arrest. We disagree.

No evidence was presented to Judge Parker that the defendant’s arrest for violation of a curfew occurred on the day when the defendant reached the age of majority. Furthermore, the defendant has not cited any law in his brief to this court to support his claim that the narcotics found incident to his arrest were the fruit of an illegal arrest or search. We therefore conclude that the defendant did not meet his burden before Judge Parker of demonstrating how his public defender’s performance was ineffective or that his guilty plea was not knowing and voluntary.

II

The defendant’s final claim is that the court improperly denied his motion to transfer his cases to a particular trial court for sentencing and, therefore, his pleas were not made knowingly and voluntarily. We do not agree.

As previously mentioned, Judge Miaño recused himself from the cases and transferred them to Judge Parker. The defendant moved that his cases be transferred back to Judge Miaño after Judge Parker denied his motion to withdraw his guilty pleas. He argues, on appeal, that he was entitled to be sentenced by Judge Miaño because he had entered his pleas in the belief that Judge Miaño considered him a good candidate for a fully suspended sentence. He maintains, therefore, that his pleas were not knowingly and voluntarily entered. The defendant did not raise this claim with respect to the knowing and voluntary nature of his guilty pleas when Judge Parker was considering the defendant’s motion to withdraw his guilty pleas. The defendant therefore did not preserve his claim at trial.

To obtain review of an unpreserved claim on appeal, a defendant must deserve review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), for claims of a constitutional nature or under the plain error doctrine. Practice Book § 60-5. The defendant here cannot prevail on his unpreserved claim under either doctrine. We therefore decline to review his claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       We note that the judgment file and the defendant’s appeal form identify the statute as General Statutes § 21a-278, which we attribute to a scrivener’s error.

       The defendant, who was eighteen years old at the time of his plea, previously had been convicted as a youthful offender in violation of General Statutes §§ 54-761) through 54-76n. He originally was sentenced to six months incarceration, execution suspended.

       The prosecutor informed Judge Miaño of the plea agreement, stating: “The state’s recommendation on the possession of heroin with intent to sell, is a ten year sentence, execution suspended alter serving three years and probation for three years. On the possession of narcotics, it’s a concurrent two year sentence, and on the violation of probation, a concurrent six month sentence for a total effective sentence of ten years, execution suspended after three years, probation for a period of three years, this with a right to argue for a lesser sentence at the time of sentencing. And also by agreement, those other two part B criminal files and the four other part B motor vehicle files that I had named before, Your Honor, would be nolled at sentencing.”

       Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . .
      “(4) The plea resulted from the denial of effective assistance of counsel .. .

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum, possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.” (Emphasis added.)

       The defendant also claims that Judge Miaño improperly informed him that he faced seven years probation when in fact he faced only three years probation. On the basis of our review of that portion of the transcript identified by the defendant, we conclude that there is no factual basis for that claim.
      “The Court: . . . [L]et’s assume I go along with the downside, the heaviest, which is a ten year sentence, execution suspended after three years and three years probation. I’m not saying that’s what you’re going to get, but if that is what you got, if after you got out you’re on probation, do you understand you’d be on probation for three years with seven years over your head? Yes or no?
      “The Defendant: Yes, Your Honor.
      “The Court: Do you understand what I mean by seven years over your head?
      “The Defendant: Means if I violate the probation, I’ll have to do seven years.
      “The Court: In jail.
      “The Defendant: Yes.”

       The prosecutor questioned the defendant on cross-examination as follows:
      “Q. Mr. Gray, you knew what the maximum sentence was, you knew the sentence you could have gotten for the charges? You know the maximum, possession with intent to sell and possession of narcotics, the judge advised you of that on the record didn’t he?
      “A. He advised me of that, yes.
      “Q. Okay. And actually, that had nothing to do with whether you would accept — you wanted to reject the plea; the actual reason was that you were promised probation and you didn’t get it?

        “A. Exactly.
      ❖ * #
      “Q. What about that misstatement? What about — what about that misstatement of Judge Miano’s bothered you?
      “A. The misstatement of the time?
      “Q. Yeah.
      “A. I’m ignorant of what I would have gotten. I never know what the maximum sentence of what is.
      “Q. Well, you know how much, you know — how good are you in math?
      “A. Yes.
      “Q. How much is fifteen and seven?
      “A. Fifteen and seven, twenty-two.
      “Q. Okay. So when the judge added fifteen and seven and said twelve, you would know he was wrong, isn’t that correct?
      “A. Of course, I would.”

       The defendant testified as follows on direct examination by his private counsel:
      “Q. Did anyone advise you, anyone at all advise you that you had a basis for suppressing your — the search of yourself?
      “A. No, I did not get advised of that.
      “Q. And with regard to the Waterford case, did anyone discuss with you the viability of a motion to suppress?
      “A. No, they did not.
      “Q. Can you tell us why you were taken into custody in the Waterford case?
      “A. Curfew, it was supposed to be for curfew.
      “Q. And the date of that arrest, you got arrested during the day or at night?
      “A. I got arrested about — it was about 11:55 at night.
      “Q. On what day, do you recall?
      “A. The twenty-ninth of May.
      “Q. Of what year, 1997?

        “A. Nineteen ninety-seven.
      ‘■Q. And what’s your birthday?
      “A. The thirtieth of May.
      “Q. And you turned eighteen at midnight on May thirtieth?
      “A. Yes, I did.
      “Q. What was the reason they stopped your car in Waterford?
      “A. For speeding.
      “Q. And they took you into custody?
      “A. Yes, they did.”


text:
    KATHLEEN T. FAUGHT v. EDGEWOOD CORNERS, INC.
    (AC 19629)
    Lavery, C. J., and Mihalakos and Zarella, Js.
    Argued November 1, 2000
    officially released May 1, 2001

      William F. Gallagher, for the appellant (defendant).

      John J. Resnik, with whom was Emily Resnik Conn, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, Edgewood Comers, Inc., appeals from the judgment, rendered after a trial to the court, declaring that a prescriptive easement exists in favor of the plaintiff, Kathleen T. Faught, and permanently enjoining the defendant from obstructing the plaintiffs use of that easement. The defendant claims that (1) the evidence is insufficient to establish that the use was adverse, open and notorious, or that the use was made under a claim of right, and (2) a lis pendens and tax liens filed in connection with prior foreclosures on the defendant’s property extinguished any prescriptive easement that may have existed. We affirm the judgment of the trial court.

In its memorandum of decision, the court set forth the following facts and procedural history. In November, 1998, the plaintiff filed an action seeking a temporary and permanent injunction, as well as a declaratory judgment, regarding a claimed easement over adjoining land. The defendant, the owner of the adjoining land, opposed such relief.

The plaintiff owns property located at 372 and 374 Whalley Avenue in New Haven. The defendant owns the adjacent property at 376-386 Whalley Avenue. In 1998, the defendant acquired title under a deed from Edgewood Elm Housing. Edgewood Elm Housing took title under a deed from the city of New Haven, and the city took title by foreclosure of tax hens. In 1988, the defendant’s predecessor in title filed a notice of prevention of acquisition of an easement on the land records.

The defendant’s property includes a building that fronts Whalley Avenue. Behind the building, the defendant’s property also includes a large parking area that runs along Norton Street (Norton Street lot). Two curb cuts allow entry from Norton Street into the Norton Street lot. The easement in question is a right-of-way from the first curb cut on Norton Street that runs straight back to a parking area directly behind the 374 Whalley Avenue building.

The history of the properties is instructive. In 1979, the plaintiff began living at 374 Whalley Avenue. Prior owners Max Greenberg and Yale Greenberg sold 374 Whalley Avenue to the plaintiff in 1984, and 372 Whalley Avenue in 1998. The Greenbergs’ father owned 374 Whalley Avenue and operated a tailor shop in the building since before World War II. Shortly after the war, the Greenberg brothers bought 372 Whalley Avenue and ran a juvenile furniture store in the building until 1997.

Behind 374 Whalley Avenue, there is room to park several cars. During the entire time that the Greenbergs’ father owned and operated the tailor shop, he used the area behind the building to park cars. The Greenberg brothers also drove across the lot and parked in the space behind 374 Whalley Avenue when they owned and operated their furniture store. In addition, while the plaintiff was a tenant at 374 Whalley Avenue and before she bought the building, she and the other tenants routinely drove across the Norton Street lot and parked their cars in the spaces behind the building. The Greenbergs charged tenants a sum in addition to the rent to park there.

The issue in question arises because the only way to get to the parking area behind 374 Whalley Avenue is to drive through the Norton Street lot, which the defendant owns. In November, 1998, the defendant began to build an eight foot fence around the Norton Street lot to prevent the plaintiff and her tenants from reaching the parking area behind her building, and the plaintiff commenced the underlying action. The plaintiff sought both permanent and temporary injunctions, and a declaratory judgment to the effect that a prescriptive easement exists across the defendant’s property. The court granted the temporary injunction and directed the parties to make further proposals for the court’s approval regarding notice to encumbrancers. The court subsequently rendered a final judgment declaring the existence of the easement and permanently enjoining the defendant from interfering with the plaintiffs use of that easement. The defendant appealed from that judgment.

I

The defendant claims that the plaintiff did not establish an easement by prescription over its property. Specifically, the defendant’s claim is that the evidence is insufficient to establish that the use was adverse, open and notorious. “Whether a right-of-way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered.” Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous. McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). We conclude that there was sufficient evidence to find that the plaintiff has a right-of-way by prescriptive easement to use the Norton Street lot.

The well established statutory elements necessary to establish an easement by prescription are that the use is “(1) open and visible, (2) continuous and uninterrupted for fifteen years, and (3) engaged in under a claim of right.” Zavisza v. Hastings, 143 Conn. 40, 45, 118 A.2d 902 (1955); see also Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993). “A prescriptive easement must be proved by a fair preponderance of the evidence.” Simonds v. Shaw, 44 Conn. App. 683, 687, 691 A.2d 1102 (1997).

The Greenbergs and their tenants used the easement across the Norton Street lot for over fifty years. The Greenberg brothers parked their cars in the parking spaces behind 374 Whalley Avenue six days a week for over fifty years while they operated a business in the building. The evidence presented established that the use of the easement has been continuous since World War II and that the prescriptive easement was established long before the plaintiff purchased 374 Whalley Avenue in 1984.

In addition, there is no question that the use was open and visible. The Norton Street lot is an open lot, and the path from the curb cut to the parking spaces behind 374 Whalley Avenue is plainly visible. Both the Greenbergs and the plaintiff testified that they openly drove from Norton Street to the parking spaces behind 374 Whalley Avenue for many years. Given the layout of the property, it would be impossible to get from the street to the parking area without detection.

The defendant also argues that the use was not open and visible because the right-of-way over the paved parking lot was not a clearly delineated path and, thus, the defendant did not have sufficient notice that the plaintiff was using its property under a claim of right. We disagree.

For more than fifty years, the plaintiff and her predecessors in title had absolute access to the parking area behind 374 Whalley Avenue from the first curb cut set back 112 feet from the intersection of Whalley Avenue and Norton Street in a straight fine to the parking area. Indeed, the plaintiff and her predecessors have turned off Norton Street at the first curb cut to drive across the lot to access the parking spaces for over fifty years without interruption. The evidence showing that the only route to the parking lot behind 374 was across the defendant’s parking lot, together with the evidence showing that cars have been parked behind 374 Whalley Avenue during all of this time, provided a sufficient basis for the court’s conclusion that the defendant had notice of the use.

II

The defendant next claims that the plaintiffs use was not made under a claim of right. We disagree. A use made under a claim of right is a use made “without recognition of the rights of the owner of the servient tenement.” Zavisza v. Hastings, supra, 143 Conn. 46. “The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use. . . . The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement.” (Citation omitted; internal quotation marks omitted.) Crandall v. Gould, 244 Conn. 583, 590-91, 711 A.2d 682 (1998). “Whether the requirements for [a claim of] right have been met in a particular case presents a question of fact for the trier of facts. . . . The trier’s determination of facts will be disturbed only when those findings are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 206, 512 A.2d 940 (1986).

The use of the lot by the plaintiff and her predecessors was not permissive and was made without any recognition of the defendant’s rights to prevent it. The Greenbergs never asked for permission to cross the Norton Street lot to access the parking spaces on their property. In addition, no one ever gave the Greenberg family permission to use the Norton Street lot to access their parking area. A former owner of the Norton Street lot testified that he knew that the owners of the adjoining property were driving across his property to reach their own. The former owner also acknowledged that he never gave permission to cut across his lot to access the parking area behind 374 Whalley Avenue.

The actions of defendant’s predecessor in title provide further proof that the plaintiff and the Greenbergs acted under a claim of right. In 1988, the defendant’s predecessor in title served on the plaintiff and filed on the land records a notice of prevention of acquisition of easement. Filing the notice of prevention of acquisition of easement is evidence that at least one of the defendant’s predecessors in title did not give permission to use the lot to access the parking area behind 374 Whalley Avenue. In addition, the defendant’s predecessor in title did not serve this notice on the Greenbergs, who still owned 372 at that time and continued to use the lot to access the parking area behind 374 until 1997, when they closed their business. Therefore, on the basis of the facts set forth at trial, we find that the use of the Norton Street lot met the standard for use under a claim of right. We, thus, conclude that the court’s finding that the plaintiffs use was made under a claim of right was not clearly erroneous. In addition, we conclude that there was more than sufficient evidence to support the court’s factual determinations and that it properly concluded that an easement by prescription existed granting the plaintiffs a right-of-way over the parking lot on the defendant’s property. Accordingly, we affirm the judgment of the trial court.

Ill

The defendant’s final claim is that a lis pendens and tax liens filed in connection with prior foreclosures extinguished any prescriptive easement that arose in the forty years of continuous, adverse, open and notorious use. Although we conclude that the court correctly found that, as a matter of law, the 1991 lis pendens did not extinguish the plaintiffs prescriptive easement, we affirm the judgment on the additional ground that a tax lien does not extinguish a vested prescriptive easement.

A

The issue of whether the easement had been extinguished either by the filing of the lis pendens or by the judgment in the tax hen foreclosure action is a question of law. Where a question of law is presented, our review is plenary. See Berty v. Gorelick, 59 Conn. App. 62, 66, 756 A.2d 856, cert. denied, 254 Conn. 933, 761 A.2d 751 (2000). The court stated in its memorandum of decision that “the 1991 lis pendens [did not have] any effect in extinguishing the plaintiffs claim of right. Although the defendant correctly cites the general principle of law that title deriving from foreclosures will be held superior to title derived from unrecorded interests . . . the plaintiff was never made a party to the foreclosure actions nor was she served any notice of them. The easement arose long before the foreclosure actions were instituted. The easement was then transferred to the plaintiff by the deeds which conveyed the property with the appurtenances thereof . . . .”

The property currently owned by the defendant was foreclosed on in the early 1990s. In 1990, notices of lites pendentes and certificates of foreclosure were recorded. The plaintiff was not named in any of those documents, nor were any of her predecessors in title. The lis pendens statute, General Statutes § 52-325, does not affect prior interests. Section 52-325 provides in relevant part that “[s]uch notice shall, from the time of the recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action . . . .” General Statutes § 52-325. The statute speaks prospectively. See Kukanskis v. Griffith, 180 Conn. 501, 507, 430 A.2d 21 (1980).

Here, the prescriptive easement was acquired before the foreclosure actions had commenced. The Greenbergs acquired the easement long before the sale to the plaintiff and conveyed their interest therein to the plaintiff when they sold the property to her. Furthermore, the filing of a notice of prevention of acquisition of easement on the land records by the defendant’s predecessor in title served as notice of the plaintiffs easement claim. Because the plaintiff did not receive notice, nor was she named or served in the foreclosure actions, her interest could not be extinguished. We conclude that it was reasonable for the court to determine that the lis pendens did not extinguish the plaintiffs interest in the easement by prescription.

B

The defendant also claims that the tax lien foreclosure extinguished the prescriptive easement that arose when the Greenbergs owned the property. We disagree. The effect of a tax lien foreclosure on vested adverse possession and prescriptive easement rights is an issue of first impression in Connecticut. The easement here was appurtenant to the plaintiffs land (the dominant estate) and it burdened the defendant’s land (the servi-ent estate). We conclude that the burden of an easement appurtenant runs to all subsequent owners, including persons who obtain title through tax lien foreclosure proceedings.

Appurtenant easements benefit land rather than a particular individual and run with the land. “Rights of access are, by nature, easements appurtenant to the land. [A]n easement appurtenant . . . attaches to the land and every part of it. . . . An easement appurtenant lives with the land. It is a parasite which cannot exist without a particular parcel of realty. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. ... An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. . . . Further, because of the incorporeal nature of an easement appurtenant, its owner cannot be disseized or otherwise ousted of it; he can only be disturbed or obstructed in its enjoyment.” (Citations omitted; internal quotation marks omitted.) Harkins v. Girouard Estates, Inc., 31 Conn. App. 485, 495, 625 A.2d 1388, cert. denied, 227 Conn. 906, 632 A.2d 691 (1993).

The defendant claims that title conveyed in a tax lien foreclosure is not encumbered with easements appurtenant. General Statutes § 12-159 provides in relevant part: “Any deed, or the certified copy of the record of any deed, purporting to be executed by a tax collector . . . shall be prima facie evidence of a valid title in the grantee to the premises . . . .” On the basis of this principle, the defendant reasons that title conveyed pursuant to a tax lien foreclosure is obtained unencumbered by a prescriptive easement. Our legislature, however, in the context of a tax sale, has evidenced that an easement appurtenant does not fall within the general category of encumbrances extinguished by the sale. Section 12-159 further provides in relevant part that title conveyed in a tax sale is “encumbered only by the lien of taxes . . . easements and similar interests appurtenant to other properties not thereby conveyed . . . .” General Statutes § 12-159. Although this statutory language is not dispositive of this issue because it pertains to nonjudicial tax sales rather than tax lien foreclosures, it, nevertheless, reflects legislative support for the principle that easements appurtenant run with the land and are not extinguished when title is conveyed pursuant to a tax lien foreclosure.

“[A]n appurtenant benefit or burden [generally] runs to all subsequent owners and possessors of the benefit-ted and burdened property, including a lessee, life tenant, adverse possessor, and person who acquires title through a lien-foreclosure proceeding.....” (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 520, 757 A.2d 1103 (2000). A subsequent purchaser can acquire only what the prior owner possessed regardless of whether those interests were recorded or unrecorded. See, e.g., Russakoff v. Scruggs, 241 Va. 135, 400 S.E.2d 529 (1991) (purchaser of lake at tax foreclosure sale took subject to easement by implication held by adjoining landowners for use of lake). Obtaining unencumbered title following a tax lien foreclosure, therefore, does not extinguish burdens running with the land. In this case, we conclude that the defendant acquired property subject to a prescriptive easement in favor of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       After the presentation of evidence at a hearing on the plaintiffs request for a temporary injunction, the parties stipulated that the trial on the temporary injunction could be considered as a trial on the merits, thus enabling the court to render a final judgment on the merits of the plaintiffs claims in counts one and two of her complaint.

       The defendant initially claimed that the trial court applied an improper standard of proof in concluding that aprescriptive easement existed. Counsel for the defendant withdrew this claim at oral argument.

       General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”

       General Statutes § 52-325 (a) provides in relevant part: “[A] notice of lis pendens . . . shall, from the time of its recording only, be notice to any person thereafter acquiring any interest in such property of the pendency of the action; and each person whose conveyance or encumbrance is subsequently executed or subsequently recorded or whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action. ...”

       General Statutes § 47-38 provides: “The owner of land over which a right-of-way or other easement is claimed or used may give notice in writing, to the person claiming or using the privilege, of his intention to dispute the right-of-way or other easement and to prevent the other party from acquiring the right; and the notice, being served and recorded as provided in sections 47-39 and 47-40, shall be deemed an interruption of the use and shall prevent the acquiring of a right thereto by the continuance of the use for any length of time thereafter.”

       “[T]he requirement that the [use] must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner of the fee. It means nothing more than a user ‘as of right,’ that is without the recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be ‘under a claim of right’ 2 Tiffany on Real Property (2d Ed.) p. 2050.” Phillips v. Bonadies, 105 Conn. 722, 726, 136 A. 684 (1927).

       Regardless of the intent of the defendant’s predecessor in title when it recorded the notice of prevention of acquisition of easement, the prescriptive easement had been perfected long before 1988.

       The statute requires recording, as well as serving notice on the individual claiming or using the privilege. See footnote 5.

       Cf. General Statutes § 49-30. Section 49-30 provides: “When a mortgage or lien on real estate has been foreclosed and one or more parties owning any interest in or holding an encumbrance on such real estate subsequent or subordinate to such mortgage or lien has been omitted or has not been foreclosed of such interest or encumbrance because of improper service of process or for any other reason, all other parties foreclosed by the foreclosure judgment shall be bound thereby as fully as if no such omission or defect had occurred and shall not retain any equity or right to redeem such foreclosed real estate. Such omission or failure to properly foreclose such party or parties may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party or parties thus not foreclosed, or their respective successors in title.”

       “ The only possible exception would be in the context of eminent domain. If the easement was incompatible with a public use and it was not extinguished, the public use would be thwarted. Nevertheless, it should be noted that an easement does not automatically survive a taking; an easement survives an eminent domain proceeding if it does not impair the public use to which the servient estate will be put. See Hartford National Bank & Trust Co. v. Redevelopment Agency, 164 Conn. 337, 343, 321 A. 2d 469 (1973), citing 26 Am. Jur 2d, Eminent Domain, § 174.

       Our Supreme Court stated further that “[i]l is . . . reasonable to assume that the parties who create servitudes intend that the benefits of appurtenant easements, profits, and restrictive covenants run to all subsequent possessors of the property.” (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., supra, 254 Conn. 520, quoting 2 Restatement (Third) § 5.2, comment (a), p. 16.


author: MIHALAKOS, J.

text:
    HAROLD J. DAW ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT ET AL.
    (AC 20334)
    (AC 20337)
    Spear, Mihalakos and Peters, Js.

      Argued November 3, 2000
    officially released May 1, 2001

      Robert A. Fuller, for the appellant-appellee (defendant Totney Benson).

      Thomas M. Geisler, Jr., for the appellees-appel-lants (plaintiffs).

      Ira W. Bloom, for the appellees (named defendant et al.).
   Opinion

MIHALAKOS, J.

This is a consolidated appeal from the judgment of the Superior Court sustaining in part and dismissing in part the plaintiffs’ appeal from the decision of the defendant zoning board of appeals of the town of Westport (board). We affirm the judgment of the trial court.

The following facts and procedural histoiy are necessary for our resolution of this appeal. The defendant Totney Benson is the owner of a house and property located at 17 Buena Vista Drive in Westport. The lot owned by Benson totals 14,062 square feet or 0.3228 acres and is located within a residence AA zone, which requires a minimum of one acre for a building. This lot became a nonconforming lot when the minimum lot size was increased at some point in the past. The lot is irregular in shape and bounded on three sides by town roads. On the fourth side, the lot abuts the property owned by the plaintiffs, Harold Daw and Meryl Daw.

The house at 17 Buena Vista Drive is a two story frame structure that was built in 1928. Under the current zoning regulations, a thirty foot setback is required on the three sides of the lot that are adjacent to town roads. On the fourth side of the lot, which is adjacent to the plaintiffs’ property, a ten foot side yard setback is required. The house is located on the west side of the lot, with a small portion of the structure falling within these setback restrictions.

In 1959, the board granted a variance to a prior owner of the house and property at 17 Buena Vista Drive (1959 variance). This variance allowed the owners to build a two story addition and porch encroaching on the required side and rear yard setbacks. When Benson purchased the house and property in 1979, all of the improvements allowed by the 1959 variance were not in place.

In 1995, Benson applied for a variance to expand the existing house at 17 Buena Vista Drive by building a three story addition. The application sought a variance from the side setback and height zoning regulations. The board granted the application for the variance (1995 variance), but stated no reasons for its decision.

The plaintiffs appealed from the board’s decision to the Superior Court. Because the board had stated no reasons for its decision granting the application for the variance, the Superior Court searched the record of Benson’s application for unusual hardship. Finding that no such hardship existed, the court reversed the decision of the board.

While the appeal to the Superior Court was pending but before the court had made its decision, Benson began construction of the three story addition, as allowed by the variance that had been granted by the board. During this construction, structural defects in the foundation and basement walls were discovered in the existing house. After the court’s decision dated August 26,1997, the zoning enforcement officer revoked Benson’s zoning permit, and construction on the addition ceased. Benson did not appeal from the decision of the court.

In September, 1997, Benson filed with the board a second application for variances. This application included a request for a variance for the same three story addition that was included in the original 1995 application, as well as a variance to allow repairs to the house’s foundation, replacement of basement walls and the construction of certain decks within the building footprint. The board granted the application for the variances (1997 variances). In its decision, the board listed as its reasons for granting Benson’s application (1) the buildable area of the lot was small, (2) the shape of the lot was unusual, (3) the proposed improvements were in keeping with the construction in the neighborhood, (4) there were front setback restrictions on three sides of the lot, (5) the existing location of the house, (6) the noise of the rooftop mechanicals was moved away from the required setbacks and the neighbors, (7) there was no adverse impact on neighboring property values, (8) the precedential force of the 1959 variance and (9) the variances in effect at the time of purchase.

The plaintiffs appealed from the board’s decision to the Superior Court. The court sustained the appeal in part, holding that the previous decision of the court, sustaining the plaintiffs’ appeal from the board’s decision as to the 1995 variance, barred the board under the doctrines of res judicata and collateral estoppel from granting an application for a variance for the same proposed three story addition. The court dismissed the plaintiffs’ challenge to the board’s decision granting a variance with regard to the replacement of the existing structure’s foundation walls and the construction of two decks above the walls, holding that the board was not precluded from granting the variance application as to them because they were not part of the 1995 application and because the board’s finding of hardship was supported by substantial evidence in the record.

“When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it. . . . In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [board] should be overruled.” (Citations omitted; internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 537, 738 A.2d 1157 (1999).

“Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.” (Citations omitted; internal quotation marks omitted.) Id., 538.

“In situations in which the zoning [board] does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations under . . . the zoning regulations. ... [A] reviewing court cannot substitute its judgment for that of the agency. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial . . . .” (Citations omitted; internal quotation marks omitted.) Id., 539-40.

I

DEFENDANT BENSON’S APPEAL

A

Benson appeals from the portion of the trial court’s decision reversing the board’s decision to grant her application for a variance for the construction of a three story addition. She first claims that the court improperly concluded that the board was barred under the doctrines of res judicata and collateral estoppel from granting the variance application because it was similar to the 1995 variance application that had been granted by the board and denied on appeal. We disagree.

“Collateral estoppel, like its cousin res judicata, presents a question of law that we review de novo.” Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 596, 726 A.2d 502 (1999). “The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.” (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 422-23, 752 A.2d 509 (2000).

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 60 Conn. App. 82, 91-92, 758 A.2d 462, cert. granted on other grounds, 255 Conn. 902, 762 A.2d 909 (2000).

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980).

“[R]es judicata should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.” (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., supra, 253 Conn. 422. “If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Emphasis added.) Wade’s Dairy, Inc. v. Fairfield, supra, 181 Conn. 559-60.

In 1997, the trial court reversed the decision of the board granting Benson’s 1995 variance application for the construction of a three story addition to her home because the board had given no reasons for its decision and because, after a close inspection of the record, it found no undue hardship. Benson did not appeal from that decision, which stands as a final judgment. The issues considered in connection with that application were therefore fully litigated. In 1997, Benson filed a second application with the board for a variance for the same three story addition. Benson went so far as to state before the board that the application was for “the same addition [she had] received approval for in 1995.” This variance cannot be granted because it is barred by res judicata and collateral estoppel.

B

Benson’s second claim is that the 1959 variance allowed her to build the three stoiy addition. Benson specifically claims that as long as the three story addition was built within the footprint of the 1959 variance, she did not need a variance from the side yard setback or height requirements for the addition. This claim is barred by res judicata because it could have been made in the 1997 appeal from the 1995 application.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Citations omitted; internal quotation marks omitted.) Orselet v. DeMatteo, 206 Conn. 542, 544, 539 A.2d 95 (1988).

C

Benson’s final claim is that General Statutes § 8-2h (a), in conjunction with the 1959 variance, exempts the proposed addition from the current zoning regulations. We disagree.

Benson argues that under the 1959 zoning laws, the 1959 variance allowed her to build an addition, of any height, within the footprint of the unbuilt porch. The three story addition that she sought would have been within that footprint. Benson maintains that § 8-2h (a) prohibits the board from enforcing, as to her, any changes to the zoning regulations made after 1959.

“The current rule in this state is that the validity of a planning and zoning commission’s action is to be determined by reference to the zoning laws and regulations in effect at the time that the challenged action was taken.”Michel v. Planning & Zoning Commission, 28 Conn. App. 314, 318, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992). “The provisions of § 8-2h . . . are directed at situations where an application is filed with a zoning authority that seeks to make use of land in a manner permitted under regulations existing at the time the application is filed. In those circumstances, § 8-2h requires the zoning authority, acting in its administrative capacity, to process the application in accordance with the regulations in effect at the time the application is filed.” (Emphasis in original.) Homart Development Co. v. Planning & Zoning Commission, 26 Conn. App. 212, 218, 600 A.2d 13 (1991). “The plain meaning of § 8-2 only affects nonconforming uses which are, in fact, in existence at the time a new regulation is adopted.” Sherman v. Planning & Zoning Board of Appeals, 13 Conn. App. 699, 707, 539 A.2d 588 (1988).

Section 8-2h does not produce the result sought by Benson. Section 8-2h simply states that if zoning regulations are changed after an application is filed, that application does not have to comply in order to be approved. There is no language in the statute to suggest that § 8-2h exempts the subject property from future zoning changes in perpetuity, as Benson seems to suggest.

The porch was never built in 1959. Therefore, there was no nonconforming use in existence after 1959 when the zoning regulations were changed. Benson cannot escape the zoning regulations through § 8-2h and the 1959 variance.

II

THE PLAINTIFFS’ APPEAL

A

The plaintiffs appeal from that portion of the court’s decision dismissing their appeal from the decision of the board to grant the variance application pertaining to the replacement of the existing structure’s foundation walls and the construction of two decks above the walls. It is their claim that their appeal should have been sustained in toto on the basis of res judicata or collateral estoppel. We disagree.

As we have discussed previously, collateral estoppel and res judicata present questions of law that we review de novo. See Linden Condominium Assn., Inc. v. McKenna, supra, 247 Conn. 596. The relitigation of an issue is prohibited when that issue was fully and fairly litigated and decided in a prior proceeding. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 60 Conn. App. 91; see also Wade’s Dairy, Inc. v. Fairfield, supra, 181 Conn. 559-60.

In 1995, Benson applied for a variance for a three story addition to her home that included a grade level garage with a two story addition above it. That variance application was approved by the board. The plaintiffs appealed to the Superior Court from the boards’ decision approving the variance. In the time period after the approval of the variance application by the board and before the Superior Court’s ruling on the appeal, Benson proceeded with the construction and discovered structural defects in the existing foundation and basement walls of the house. When the Superior Court subsequently reversed the board’s decision granting the variance, Benson ceased construction.

In September, 1997, Benson reapplied for a variance. This application requested a variance for the original three story addition with one bay garage beneath and to reconstruct the existing basement walls and decks to prevent sinking. There is no question that the application was, in part, for the same addition as applied for in 1995.

As discussed previously, the board was precluded, under the doctrines of res judicata and collateral estop-pel, from granting the variance application as to the addition to the house. The request regarding the basement walls and decks, however, was neither mentioned in the 1995 variance application nor encompassed by it. Because Benson did not discover the defects in the basement walls until after the granting of the 1995 variance application, it stands to reason that she would not have requested a variance to repair them prior to that discovery. In its memorandum of decision, the court stated that the issue thus was whether there was substantial evidence in the record to justify the board’s decision regarding the foundation walls and decks. The court found that in her application to the board, Benson referred to a variance for foundation walls and decks and the reasons why one was justified. The court stated that the board had found Benson’s testimony to be credible and that for the court to find otherwise would be to substitute the court’s judgment for that of the board. After a review of the record before us, we find no reason to disagree.

B

The plaintiffs next claim that the court improperly affirmed the board’s decision granting a variance for a two car garage for reasons other than those specified in the board’s decision in violation of Connecticut law. We disagree.

The plaintiffs claim that Benson’s 1997 variance application sought approval for the addition of a two car garage. After close inspection of the record and appendices supplied by the parties, we are unable to find any mention of a two car garage in the 1997 variance application or in the actual variance that was granted. What we do find is a request by Benson in the 1997 application for a variance to build a one car garage. That application was granted and referred to a “one stall garage.” We find mention of a “grade level garage” in the 1995 application and in the letter from the board to Benson informing her of the approval of the application. There is no indication in either document whether this grade level garage was for one or two cars. We find no mention of a two car garage in the court’s decision. Thus, because the 1997 variance application did not concern a two car garage and because the court did not address that issue in its decision, the plaintiffs’ claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants were the town zoning enforcement officer and the variance applicant, Totney Benson.

       General Statutes § 8-2h (a) provides in relevant part: “An application filed with a . . . zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application.”

       The board supports Benson’s position in this appeal.

       The 1997 floor plans show that Benson sought to have what appears to be two separate garage areas beneath her house. From the floor plans and the chronology of events and permits, it appears that the subject garage in both the 1995 and 1997 variances was a one stall garage to be located beneath the proposed addition on the east side of the house. The additional garage appears in the 1997 plans and is located within the existing basement. It is unclear from the drawings whether this garage is one or two bays. It is clear, however, that this garage was not part of the 1995 plans.