author: Stoughton, J.

text:
    State of Connecticut v. Julius Levine
    (5725)
    Spallone, Daly and Stoughton, Js.
    Argued October 21, 1988
    decision released January 3, 1989

      William F. Gallagher, with whom were Thomas F. Brown and, on the brief, Gwen B. Weltman, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom were David P. Gold, assistant state’s attorney, and, on the brief, Pamela Weidman, legal intern, for the appellee (state).
   Stoughton, J.

This is an appeal by the defendant from a judgment rendered after a trial to a jury, which convicted him of ten counts of illegally prescribing a narcotic substance, in violation of General Statutes § 21a-277 (a), and eight counts of illegally prescribing a controlled substance, in violation of General Statutes § 21a-277 (b). We find no error.

The defendant claims that the court erred (1) in denying his motions to suppress statements and tangible evidence, (2) in permitting the state’s expert witness to give his opinion on an ultimate issue of fact, (3) in its charge to the jury in that it shifted the burden of proof on an essential element of the crimes to the defendant, incorrectly charged on the issue of good faith, and failed to refer sufficiently to the evidence, and (4) in denying his motion for acquittal.

I

The defendant, a seventy-nine year old physician and osteopath, filed motions to suppress evidence that had been seized, and to suppress any statements made by him to law enforcement authorities. Richard Moore, an agent of the drug control division of the consumer protection department, was assigned to investigate the prescribing practices of the defendant. Complaints had been received from pharmacists, and a review suggested that there might have been “doctor shopping” or forgeries. Moore knew that the department of consumer protection had asked the defendant to give up his license to prescribe controlled substances in December, 1984. He had previously gone to see the defendant regarding possible forgeries and “doctor shopping,” and he arranged to meet with the defendant on April 17, 1985, to discuss these possibilities. On that date, Moore went to the defendant’s office, and the defendant identified fifty-six prescriptions as prescriptions that he had written. Moore had a tape recorder on his person but he did not inform the defendant of that fact. He showed the prescriptions to the defendant and said that there were possibilities of forgeries or “doctor shopping.” He did not advise the defendant that what he said might be used against him in a criminal proceeding. After the meeting, Moore took the fifty-six prescriptions that the defendant identified and 269 others bearing the defendant’s signature to a handwriting expert. He received a report that all of the prescriptions had been written by the defendant. He then obtained a search warrant for the defendant’s office and seized the defendant’s medical records. The defendant claims that because failure to comply and to cooperate with the department of consumer protection might lead to loss of his license, he should have been advised of his right to remain silent and of his rights of due process. Because he was not so advised, he claims that his statements and his medical records were obtained illegally and should have been suppressed.

The defendant concedes that he was not technically in custody when he spoke to Moore in his own office, but he contends that he should have received Miranda warnings nevertheless. Two conditions must exist before Miranda warnings are required: the defendant must be in the custody of law enforcement officials, and the defendant must be subjected to interrogation. State v. Green, 207 Conn. 1, 6, 540 A.2d 659 (1988); State v. Arroyo, 13 Conn. App. 687, 698, 539 A.2d 581 (1988). The defendant was not in custody, and the Miranda warnings were not required.

The defendant also claims both that there was “a certain amount of inherent coercion built into the April 17 meeting” because he had previously been approached about giving up his license to prescribe controlled substances, and that Moore used deception, intimidation and coercion against him in violation of his federal constitutional rights under the fifth and fourteenth amendments. He has offered no support for his claim that he was intimidated or coerced into identifying his signature or that any statement he made was involuntary, and we find none in the record. The trial court did not err in denying the defendant’s motions to suppress.

II

At the trial of the case, the jury reasonably could have found the following facts. The defendant came under investigation by agents of the drug control division of the consumer protection department in April, 1985. One of the agents of the drug control division, Richard Moore, had received information from pharmacists in the New Haven area about possible improprieties. He visited twenty-five pharmacies in the New Haven area and seized over 1000 prescriptions for Schedule II substances that had been written by the defendant between December 1, 1984, and April 1, 1985. Moore made an appointment to meet the defendant on April 17,1985, in order to investigate the possibilities of forgery, “doctor shopping” or over-prescribing. Moore showed the defendant fifty-eight prescriptions that had been written on the defendant’s forms, and the defendant identified fifty-six of the fifty-eight as being his. Moore had not told the defendant that he was suspected of anything. Moore then picked out 269 of the seized prescriptions for Schedule II drugs that had been written on the defendant’s forms and took them to a handwriting expert, together with the fifty-six forms identified by the defendant. The prescriptions related to ten patients. The handwriting expert found that all of the prescriptions had been signed by the same person. The medical records of nine of the ten patients were seized from the defendant’s office under the authority of a warrant; the records of the tenth patient, however, had been destroyed. James O’Brien, a physician who also has a PhD in pharmacology, was offered as an expert witness without objection. He testified that in his opinion the prescriptions were not written in good faith or in accord with standard medical practice. The defendant testified that he had prescribed medications to each of the patients in good faith and for demonstrable physical conditions.

General Statutes § 21a-277 (a) makes it an offense to prescribe a controlled substance, which is a narcotic substance, “except as authorized in this chapter.” General Statutes § 21a-277 (b) makes it an offense to prescribe a controlled substance, except a narcotic substance, “except as authorized in this chapter.” The authorization referred to is found in General Statutes § 21a-252 (a) and (b). This section provides that under proper circumstances a physician or an osteopath may, in good faith and in the course of his professional practice only, prescribe controlled substances. The state was permitted to ask O’Brien, as to each of the ten patients identified on the prescriptions, on the basis of summary sheets detailing the prescriptions and medical records seized from the defendant’s office, for his opinion as to whether the defendant had acted in good faith or in accord with standard medical practice. O’Brien testified that the defendant had not acted in good faith or in accord with standard medical practice and that no medical condition could justify the types of prescriptions written. The defendant objected to the state’s line of questioning and claimed that there was no foundation for O’Brien’s opinion and excepted to the overruling of his objection.

The defendant claims on appeal that the trial court erred in permitting O’Brien to give an opinion as to whether the prescriptions were written in good faith, which is an ultimate issue of fact.

The defendant has failed to comply with Practice Book § 4065 (d) (3), which failure would ordinarily preclude review of his claim. He does not rely on the objection interposed in the trial court, however. He claims that good faith is a question of intent, and that in a criminal case an expert is not allowed to give an opinion as to whether the accused had the mental state to commit the crime charged because that is the ultimate issue in the case. He bases his claim upon General Statutes § 54-86Í and upon his constitutional right to a fair trial. Conceding that he did not base his objection on § 54-86Í, he claims that he is entitled to review under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

A similar claim was considered and rejected in State v. Vilalastra, 207 Conn. 35, 46-47, 540 A.2d 42 (1988). The admissibility of O’Brien’s opinion was an evidentiary matter and did not implicate fundamental fairness or violate any specific constitutional right. An expert witness may be allowed to give an opinion on an ultimate issue where the trier needs expert assistance in order to make intelligent findings. Id., 41. The defendant is not entitled to Evans review of this claim.

The defendant also contends that this claim was properly preserved for appeal because, after the state had rested, he filed a motion for mistrial in which he asserted that the good faith of the defendant was a question for the jury and that permitting O’Brien to state an opinion as to the good faith of the defendant was prejudicial to the defendant and denied him a fair trial. The objection to O’Brien’s testimony was not interposed on the ground now raised on appeal, and § 54-86Í was never raised in the trial court.

' Since this claim is not of constitutional dimension, and since it was not distinctly raised in the trial court; see Practice Book § 4185; we decline to review it.

III

The defendant claims that the trial court erred in its charge in that (1) it shifted the burden of proof on an essential element of the crimes charged to the defendant, (2) its charge defining good faith was inadequate, and (3) it failed to refer to the evidence.

A

The defendant was charged with violations of General Statutes §§ 21a-277 (a) and 21a-277 (b), each of which proscribes prescription of certain kinds of controlled substances “except as authorized in this chapter.” General Statutes § 21a-252 (a) provides authorization to a physician to prescribe, in good faith and in the course of his professional practice only, controlled substances, for demonstrable physical or mental disorders but not for drug dependence except in accordance with state and federal laws and regulations adopted thereunder. General Statutes § 21a-252 (b) provides authorization to an osteopath to prescribe, in good faith and in the course of his professional practice only, controlled substances, for relief of pain to the extent permitted by the Federal Controlled Substance Act and state laws and regulations relating to osteopathy. General Statutes § 21a-269 provides as follows: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, provision or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.”

Section 21a-269 means that it was not necessary to prove, as an essential element of the offenses charged, that the defendant was not authorized to prescribe, until the defendant had offered substantial evidence of the applicability of the statutory exception to him. Once he has done so, the burden devolves upon the state to prove the nonapplicability of the exception, as it does with respect to all other essential elements in the case, beyond a reasonable doubt. State v. Liebowitz, 7 Conn. App. 403, 410, 509 A.2d 43 (1986).

The state concedes that the defendant offered substantial evidence of his good faith, and that the burden of proving absence of good faith rested upon the state.

The defendant argues that even though the court instructed the jury that the state must prove “each and every element of the crimes beyond a reasonable doubt,” it did not charge that the state must prove that the defendant did not meet one of the criteria of § 21a-252 so that the jury might have inferred that the burden was upon the defendant to prove that he met all four of the criteria of § 21a-252.

The defendant concedes that he did not raise his claim that the charge shifted the burden of proof by way of an exception. He claims, and we agree, that the claim is reviewable under State v. Evans, supra, 70.

A review of the charge demonstrates that the court properly and carefully instructed the jury that the state was obliged to prove, beyond a reasonable doubt, that the defendant was not authorized, either as a physician or as an osteopath, to prescribe as he did. The elements of § 2 la-252 all were explained and the court charged, not once but several times, that the state was required to prove all the elements of the crime charged beyond a reasonable doubt, including the element that the defendant was not authorized under § 21a-252 to prescribe as he did. There is no merit to this claim.

B

The defendant claims that the court erred in defining good faith as “that state of mind denoting honesty of purpose, freedom of intent to defraud and generally speaking being faithful to one’s duties or obligations,” because this definition employs a civil rather than a criminal standard.

The court’s definition of good faith occurred during its explanation of the statutory exceptions under which physicians or osteopaths are permitted to prescribe controlled substances when done in good faith and in the course of professional practice. The court explained that good faith is a subjective concept, proceeding from the individual’s mind, and that the jurors were required to determine the defendant’s intent or state of mind at the time he wrote the prescriptions. It included the definition quoted above. The defendant had requested the following charge: “Now good faith has been construed to mean without unlawful intention or with an honest belief that the person to whom the narcotics are sold or administered is actually suffering from a physical or mental condition which would suggest that narcotics might be used in accordance with good medical practice. Good faith in the course of his professional practice means subjective good faith looking to the state of mind and intentions of the accused.”

The court instructed the jurors that they could consider the defendant’s testimony and any evidence of the circumstances when he prescribed controlled substances. They were charged that malpractice or negligence does not constitute a crime and that it must be shown that it was not the defendant’s purpose to treat a legitimate medical objective. They were instructed that if a physician has an honest purpose, free from any intent to defraud, is faithful to his duties and obligations and is in good faith, mere error of judgment does not constitute a lack of good faith.

The court is not obliged to charge in the exact language requested as long as the point is fairly covered. State v. Sergi, 7 Conn. App. 445, 450, 509 A.2d 56, cert. denied, 201 Conn. 806, 515 A.2d 379 (1986). The trial court gave an accepted definition of good faith and substantially covered the defendant’s request.

C

The defendant claims also that the court in its charge failed to refer to the facts.

The degree to which reference to the evidence may be called for in the jury charge lies largely in the discretion of the court. State v. Hardwick, 1 Conn. App. 609, 620, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984). The court went over each of the counts and referred to the testimony of witnesses and to the many exhibits. The trial was not complicated and the main issue was as to whether the defendant was authorized under § 2 la-252 to write the prescriptions that formed the basis for the charges. The charge as a whole was correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982).

IV

The defendant’s final claim is that the court erred in denying his motion for acquittal because the state had failed to provide any evidence of bad faith on the part of the defendant.

When the defendant challenges the sufficiency of the evidence, we must review the evidence in the light most favorable to sustaining the verdict and determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Tracy, 14 Conn. App. 451, 453, 541 A.2d 132 (1988).

There was evidence from which the jury reasonably could have found that the defendant prescribed very large amounts of drugs and other controlled substances to several patients over the course of a four month period. The jury might have found from the evidence that the frequency of the prescriptions was too high and that no medical condition would justify them. The evidence was sufficient, if believed by the jury, to support a conclusion that the defendant was guilty as charged.

There is no error.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 83 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 21a-242 (b) lists controlled substances included in Schedule II.

       General Statutes § 21a-252 provides: “prescription and dispensing OF controlled substances by certain practitioners, surrender of unused substances by patients, (a) A physician, in good faith and in the course of his professional practice only, may prescribe, administer and dispense controlled substances or he may cause the same to be administered to by a physician assistant, nurse or intern under his direction and supervision, for demonstrable physical or mental disorders but not for drug dependence except in accordance with state and federal laws and regulations adopted thereunder.
      “(b) An osteopath, in good faith and in the course of his professional practice only, may prescribe, administer or dispense controlled substances or he may cause the same to be administered by a nurse under his direction and supervision, for relief of pain to the extent permitted by the Federal Controlled Substances Act and state laws and regulations relating to osteopathy.”

       General Statutes § 54-86Í provides: “testimony of expert witness RE MENTAL STATE OR CONDITION OF defendant. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did not or did have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone."


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Jane Bergmann v. Newton Buying Corporation
    (6355)
    Borden, Daly and O’Connell, Js.
    Argued October 14, 1988
    decision released January 3, 1989

      William F. Gallagher, with whom, on the brief, was Thomas B. Pursell, for the appellant (plaintiff).

      J. Kevin Golger, with whom, on the brief, was Ira H. Lippman, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment for the defendant rendered upon a general verdict by the jury. The plaintiff raises four claims of error. We conclude that the general verdict rule applies, and we find no error.

The plaintiff sued the defendant for injuries incurred when she slipped and fell in the defendant’s department store. The gist of her claim, as disclosed by the evidence, was that she fell either because the floor was slippery or because there was a coat hanger on the floor which caused her feet to slip out from under her. The defendant filed a special defense of contributory negligence, namely, that the plaintiff failed to keep a proper lookout, that she was walking in a great rush which caused her to trip over her own feet, and that she failed to use reasonable care for her own safety. No interrogatories were submitted to the jury, which returned a general verdict for the defendant. After the court denied the plaintiff’s motion to set aside the verdict, this appeal followed.

The plaintiff’s claims of error fall into two categories: (1) a claim of evidentiary error; and (2) three claims involving the trial court’s instructions to the jury. In the first category, the plaintiff claims that the court erred by granting the defendant’s motion in limine, thus precluding the plaintiff from offering evidence of the defendant’s refusal to permit inspection of its premises until after the surface of the floor was changed. The purpose of the excluded evidence was to lay a basis for an inference by the jury adverse to the defendant, namely, that the defendant’s initial refusal and ultimate delay in permitting the plaintiff to inspect its floor was an admission of liability by conduct. This evidentiary ruling, therefore, affected only the plaintiffs claims regarding the defendant’s negligence, and not the defendant’s special defense of contributory negligence.

With regard to the plaintiff’s three claims of instructional error, two concern only the plaintiff’s claims of the defendant’s negligence, and one concerns the defendant’s special defense. The two that concern only the plaintiff’s claims of negligence are (1) that the trial court erred by failing to charge as requested by the plaintiff, “concerning the plaintiff’s claim of negligence that the defendant had maintained a slippery floor,” and (2) that the trial court erred by failing to charge as requested by the plaintiff regarding the inference of the defendant’s negligence that could be drawn from the circumstantial evidence of the presence of a coat hanger on the floor near where the plaintiff fell. The claim of instructional error that concerned the defendant’s special defense is that the court erred by failing to charge, as requested by the plaintiff, on the statutory presumption that the plaintiff was in the exercise of due care at the time of the accident.

This analysis makes it clear, therefore, that of the four claims of error on appeal, three involve only the plaintiff’s allegations of the defendant’s negligence, and one involves only the defendant’s special defense of the plaintiff’s contributory negligence. In this situation, if the plaintiff’s claim that relates only to the defendant’s special defense is unsuccessful, we need not review the other three claims, because the general verdict rule would preclude such review. See Farley v. T.R.W., Inc., 4 Conn. App. 191, 195A, 493 A.2d 268, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985) (defendant’s denial of negligence and allegation of contributory negligence constitute separate and distinct defenses, either of which will support a general verdict). Under the general verdict rule, if the court’s actions are proper under any one of the defenses raised, the general verdict stands irrespective of any error regarding the other defenses. Id. We turn, therefore, to the plaintiff’s claim of error directed to the defendant’s special defense of contributory negligence.

The plaintiff claims that the court erred by failing to give the plaintiff’s requested charge regarding the statutory presumption of due care provided by General Statutes § 52-114. This claim is without merit.

It is not necessary for the court to instruct the jury that, under the statute, the plaintiff is presumed to have exercised due care. “[Ejvery purpose of the statute is served if, in a case where it applies, the court does not read it to the jury but merely charges . . . that the burden of proving contributory negligence is upon the defendant and that, if the defendant offers no evidence upon that issue or if the evidence he does offer fails to prove that the plaintiff was negligent by a fair preponderance of the evidence, the plaintiff is entitled to prevail upon the issue.” Marley v. New England Transportation Co., 133 Conn. 586, 590, 53 A.2d 296 (1947). In this case, the court instructed the jury that the defendant had the burden of proof on its special defense of contributory negligence. The court also properly defined the civil burden of proof, and it charged that if the evidence on a particular issue was in balance or equipoise, the party on whom the burden of proof rested on that issue had failed to sustain its burden of proof. Thus, the court’s instructions adequately made the effect of General Statutes § 52-114 clear to the jury.

The plaintiff also suggests that the court erred by charging the jury that the plaintiff had a duty to use due care. Since the plaintiff took no exception to the charge that would cover this claim of error, we review it only to the extent that such an instruction could be viewed as inconsistent with the plaintiff’s request to charge on the statutory presumption. The plaintiff offers no authority for its suggestion that it was erroneous for the court to instruct the jury that the plaintiff had a duty to use due care. The fact that General Statutes § 52-114 allocates the burden of proof on the issue of the plaintiff’s due care to the defendant does not change the substantive law that the plaintiff had a duty to use such care. See LeBlanc v. Grillo, 129 Conn. 378, 385, 28 A.2d 127 (1942). It is not inconsistent with the statute to charge that the plaintiff had the duty to use due care, if the court adequately instructs the jury, as it did here, that the defendant has the burden to prove-that the plaintiff failed to meet that duty.

We find nothing erroneous in the court’s instructions regarding the defendant’s special defense of contributory negligence. This conclusion renders it unnecessary to consider the plaintiffs other claims of error.

There is no error.

In this opinion the other judges concurred.

       At oral argument in this court, however, the plaintiff sought to supply an additional basis for the excluded evidence. This was that the jury might perceive the delay in the plaintiffs inspection of the floor as casting a shadow on the vigor with which she pursued her claim. Thus, according to the plaintiff’s oral claim, the purpose of the excluded testimony was to bolster the plaintiff’s credibility, and thus related both to the plaintiff’s claim of the defendant’s negligence and to the defendant’s special defense of contributory negligence. We decline to consider this claim because it was not briefed in this court, and was not raised in the trial court. We thus review the case on the theory on which it was tried in the trial court and briefed in this court. In re Christine F., 6 Conn. App. 360, 367, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769 (1986).

       General Statutes § 52-114 provides: “In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.”


author: Daly, J.

text:
    State of Connecticut v. Pedro Juan Santiago
    (6672)
    Borden, Daly and O’Connell, Js.
    Argued October 13, 1988
    decision released January 3, 1989

      Francis Thomas Daley, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, was Warren C. Murray, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). He claims that the trial court erred (1) in denying his motion to suppress, (2) in denying his motion for judgment of acquittal, and (3) in instructing the jury on reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On April 24,1987, at approximately 12:45 p.m., the defendant was operating his motor vehicle on Paradiso Road in Norwalk accompanied by a passenger. The passenger exited from the vehicle near a parked Briggs Tire truck and the defendant drove away. The passenger then removed two tires from the parked truck. The defendant returned to the scene, the passenger placed the tires in the defendant’s vehicle and the two drove away. An eyewitness to the incident immediately notified the police.

Within ten minutes, Officer Arthur Lasprogato of the Norwalk police department arrived at the scene of the theft. The eyewitness gave Lasprogato a description of the vehicle, the driver and the passenger, as well as the vehicle’s license plate number. This information was broadcast to other officers on duty.

Lasprogato proceeded to search the vicinity for the vehicle and the suspects. He found one of the suspects in the vehicle nearby on South Main Street. Lasprogato radioed this information to headquarters and then proceeded to pick up the eyewitness so that he could make an identification of the suspect.

Officer Kenneth Riley was on patrol in the area of South Main Street. In response to the broadcast, he proceeded to the vehicle in question and blocked it with his police cruiser. At that time, the driver and sole occupant of the car was Jaime Richetti. Lasprogato and the eyewitness then arrived at the scene. Riley walked Richetti toward the eyewitness for a possible identification. While the vehicle was unoccupied, it began to roll. The defendant, who prior to this moment had not been observed by the police, ran to the vehicle to attempt to stop it from rolling. At this point, the eyewitness identified the defendant as the driver of the motor vehicle.

While walking back to the vehicle to arrest the defendant on the larceny charge, Riley observed the defendant lean down and place something under the driver’s seat. The defendant appeared nervous when he realized Riley had observed him. Riley arrested the defendant while he was seated in the driver’s seat of the vehicle and informed Lasprogato that the defendant had placed something under the driver’s seat. Lasprogato searched under the driver’s seat and found a cellophane bag containing twenty-five smaller cellophane bags filled with a white chunky substance. The defendant was searched at police headquarters, and found to be carrying $829 in cash. State toxicological tests subsequently indicated that the cellophane bags contained cocaine. The defendant was also charged with possession of narcotics with intent to sell. General Statutes § 21a-277 (a).

The defendant’s first claim of error concerns the trial court’s denial of his motion to suppress the narcotics seized from his car, which were introduced into evidence. He claims that the narcotics should have been suppressed as the product of an unconstitutional search and seizure under the fourth and fourteenth amendments to the United States constitution. We disagree.

The defendant contends that because he was initially arrested on the larceny charge, the search incident to his arrest should have been limited in scope to his person and to those areas where the stolen tires could have been hidden. The state argues in response that the search and seizure was valid because it was conducted contemporaneously with a lawful arrest.

“[A] search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specially established and well delineated exceptions. State v. Badgett, 200 Conn. 412, 423, 512 A.2d 175 (1986), cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1987). It is the state’s burden at trial to establish the exception. Id., 424.” State v. Lizotte, 11 Conn. App. 11, 17, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). In denying the motion to suppress, the trial court held that the warrantless search of the vehicle was justified as a search incident to a lawful arrest. See New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).

“The search incident to an arrest exception . . . ‘has traditionally been justified by the reasonableness of searching for weapons, instruments of escape and evidence of crime when a person is taken into custody and lawfully detained. United States v. Robinson, [414 U.S. 218, 234, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)].’ United States v. Edwards, [415 U.S. 800, 802-803, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974)].” State v. Copeland, 205 Conn. 201, 210, 530 A.2d 603 (1987). In New York v. Belton, supra, 461, the United States Supreme Court held that a lawful custodial arrest justifies a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area. Bearing in mind the above standards, we do not agree that a search incident to an arrest must be limited to evidence of the crime for which a defendant is initially arrested.

Evidence adduced at the suppression hearing indicated that, prior to his arrest on the larceny charge, the defendant made a furtive move toward the floor space of the driver’s seat. Riley testified that, while he did not know what the defendant had placed under the seat, he believed that it could have been a weapon. Given these factors, we conclude that the officers acted reasonably in searching for the suspected presence of a weapon. “An officer should not be made to choose between his own safety and what could later be construed as an illegal search and seizure.” State v. Escobales, 16 Conn. App. 272, 276, 547 A.2d 553 (1988). We conclude that the bag containing the narcotics was seized as a result of a valid search and incident to a lawful custodial arrest. The motion to suppress was correctly denied by the trial court.

The defendant next claims error in the trial court’s denial of his motion for judgment of acquittal. Specifically, he claims that there was insufficient evidence as to his possession of the drugs in the motor vehicle and, hence, his motion should have been granted. We disagree.

In determining whether the evidence is sufficient to sustain a verdict, “ ‘the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . .’ Each essential element of the crime charged must be established by such proof . . . and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture.” (Citations omitted.) State v. Cosgrove, 181 Conn. 562, 585, 436 A.2d 33 (1980). “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 were 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. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); see also State v. Williams, 12 Conn. App. 225, 235, 530 A.2d 627 (1987).

It is clear from the evidence that the defendant was not in exclusive possession of the vehicle where the narcotics were found. There were, however, other incriminating circumstances that support the inference that the defendant constructively possessed the narcotics. It is undisputed that the defendant is the owner of the vehicle in which the cocaine was found. The defendant was identified as the driver of the vehicle twenty-five minutes before the police found the cocaine. While Richetti was in the driver’s seat of the defendant’s vehicle when the police first arrived at the scene, the police did not observe Richetti make any movements toward the floor area under the driver’s seat. The police did, however, observe the defendant place something under the driver’s seat. On the basis of this evidence, we conclude the trial court did not err in denying the motion for judgment of acquittal.

The defendant’s final claim is that the trial court erred in its instruction to the jury. The trial court charged the jury as follows: “If you find the state has proven, beyond a reasonable doubt, each one and all the elements of this offense — that he possessed it — that he did it knowingly — and, that he possessed it with the intent to sell — and that it was a narcotic substance, you must find the defendant guilty. If, on the other hand, you do not so conclude, then you must find the defendant not guilty.” The defendant claims that the use of the word “must” rendered the charge the equivalent of a directed verdict of guilty. This claim is without merit.

“ ‘To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attacked in “artificial isolation” from the whole charge. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ ” State v. Reddick, 15 Conn. App. 342, 351-52, 545 A.2d 1109 (1988), quoting State v. Marshall, 3 Conn. App. 126, 129, 485 A.2d 930 (1985).

A directed verdict results when a court instructs the jury to find the defendant guilty of a particular charge. The use of the word “must” is not tantamount to a directed verdict. It is not even a functional equivalent. See State v. Ragland, 105 N. J. 189, 202, 519 A.2d 1361 (1986).

The use of the word “must” in such an instruction has passed scrutiny in our Supreme Court. See State v. Storlazzi, 191 Conn. 453, 466 n.9, 464 A.2d 829 (1983); Crawford v. Warden, 189 Conn. 374, 382 n.2, 456 A.2d 312 (1983). While the court did not consider this exact issue, it did hold that “[t]he instructions, read in their entirety, did not direct or advise the jury how to decide the matter . . . .” State v. Storlazzi, supra, 467.

The trial court repeatedly instructed the jury that it was the exclusive factfinder; that, unless each element of the crime was proven beyond a reasonable doubt, it must return a verdict of not guilty; and that it was its responsibility to determine whether each element of the crime was proven beyond a reasonable doubt. Examining the charge in its entirety, we hold that the challenged instructions did not direct the jury how to decide the defendant’s guilt or innocence.

There is no error.

In this opinion the other judges concurred.

       The defendant was also convicted of larceny in the sixth degree in violation of General Statutes § 53a-125b. He has not, however, raised any claims with respect to that conviction.

       The defendant has raised this claim under the federal constitution only. We therefore decline to undertake a separate analysis under our state constitution. See generally State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).

       The defendant has raised two separate issues under this claim. The issues are so connected, however, that they are being considered together.


text:
    Lillian Fraund et al. v. Design Ideas, Inc. Design Ideas, Inc. v. Alwin K. Fraund et al.
    (6421)
    Spallone, Daly and Foti, Js.

      Argued November 7, 1988
    decision released January 3, 1989

      Robin Edwards Otto, with whom, on the brief, was Donald A. Mitchell, for the appellant (defendant in the first case, plaintiff in the second case).

      James J. Farrell, for the appellee (plaintiffs in the first case, defendants in the second case).
   Daly, J.

The defendant in the first case, Design Ideas, Inc., appeals from the judgment of the trial court granting, in part, the plaintiffs’ application to confirm an arbitration award and denying the defendant’s application to vacate that arbitration award. The defendant claims that the trial court erred in confirming the award because the arbitrator exceeded his powers, in that he employed improper procedures and failed to conform to the agreement of submission. We find no error.

The following facts are relevant to this appeal. On or about May 3, 1984, the parties entered into an agreement providing that the defendant would prepare a scale model and interior design plan for a home to be constructed by the plaintiffs in New Canaan. The agreement provided that all disputes arising under the agreement would be subject to binding arbitration under the rules and auspices of the American Arbitration Association (AAA). Pursuant to the agreement, the plaintiffs filed a demand for arbitration. The parties later executed a general submission to have the dispute decided by the AAA under.the commercial arbitration rules.

Hearings were conducted on October 16, 1986, November 20, 1986, and January 13, 1987. The parties had until February 16, 1987, to file written briefs with the arbitrator. On March 17,1987, the arbitrator awarded the plaintiffs $21,130 and ordered the return of a deposit made by the plaintiffs to a carpet company.

Subsequent to the award, the plaintiffs filed an application with the Superior Court for an order confirming the award; General Statutes § 52-417; and the defendant filed an application with the court to vacate or correct the award. General Statutes §§ 52-418, 52-419. These matters were heard by the trial court in a single proceeding. The trial court denied the application to vacate, but corrected the award by excluding the order requiring the return of the deposit held by the carpet company. The court confirmed the balance of the award to the plaintiffs.

The defendant claims that the arbitrator engaged in improper conduct and procedures by receiving evidence after the termination of the final hearing. The defendant also claims that the award exceeded the general submission executed by the parties.

“ ‘Arbitration is favored by courts as a means of settling differences and expediting the resolution of disputes.’ Wolf v. Gould, 10 Conn. App. 292, 296, 522 A.2d 1240 (1987). ‘There is no question that arbitration awards are generally upheld and that we give great deference to an arbitrator’s decision since arbitration is favored as a means of settling disputes.’ Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986). ‘The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it “falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties’ agreement” will the determination of an arbitrator be subject to judicial inquiry.’ O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145-46, 523 A.2d 1271 (1987).” Vincent Buildings, Inc. v. American Application Systems, Inc., 16 Conn. App. 486, 488, 547 A.2d 1381 (1988). “It is axiomatic in this jurisdiction that any challenge to an award based on General Statutes § 52-418 (a) (4), on the ground that the arbitrator exceeded his powers ... is limited to a comparison of the award with the submission.” Wolf v. Gould, supra, 296. Our review on appeal is limited to an examination of the submission and the award; we then determine whether the award conforms to the submission. Id.

The trial court found that all of the parties had signed the submission to the arbitration board. The issue submitted was: “[Cjlaim by Alwin K. and Lillian L. Fraund, and counterclaims by Design Ideas, Inc., arising out of [a] written agreement dated May 2 and May 3, 1984.” The court further found that the award conformed to the submission, except with respect to the deposit held by the carpet company. The court modified the award accordingly.

The scope of the matter to be considered by the arbitrator is limited by the submission. Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976). “The submission defines the scope of the entire arbitration proceeding by delineating the issues to be decided.” Naugatuck v. AFSCME, 190 Conn. 323, 326, 460 A.2d 1285 (1983). The issue submitted was simply the claim and counterclaims arising out of the written agreement between the parties. The trial court did not err in confirming the award, as the modified award clearly conformed to the parties’ submission. Moreover, the trial court did not err in confirming the award despite the claim that the arbitrator engaged in improper conduct by receiving evidence after the close of the hearings, in violation of the AAA rules. The court found that both parties, and not just the plaintiffs, had submitted posthearing evidence to the arbitrator as part of their respective briefs. The court also found that the parties agreed to conduct the arbitration under the commercial arbitration rules of the AAA. The court concluded that, because the defendant agreed to be bound by those rules, which included Rule 38, and the defendant failed to object to the submission of the evidence, the defendant had waived its right to object. Under these circumstances, the trial court did not err in finding that the defendant had waived any objection to the posthearing submission of evidence.

There is no error.

In this opinion the other judges concurred.

       Both applications were consolidated by the trial court.

       The contract was signed on May 2, 1984, by Alwin K. Fraund and on May 3, 1984, by the defendant.

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 52-418 provides in relevant part: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”
      General Statutes § 52-419 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
      “(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

       Rule 38 of the commercial arbitration rules of the American Arbitration Association provides: “waiver OP rules. Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state objection thereto in writing, shall be deemed to have waived the right to object.”


text:
    Ferdie Catropa v. Chris Bargas et al.
    (6468)
    Borden, O’Connell and Stoughton, Js.
    Argued November 1, 1988
    decision released January 3, 1989

      David J. McDonald, for the appellants (defendants).

      George Ganim, Jr., for the appellee (plaintiff).
   Stoughton, J.

This is an appeal by the defendants from a judgment for the plaintiff in an action for entry and detainer brought pursuant to General Statutes § 47a-43. We find error.

The plaintiff alleged that the defendants, having made a peaceable entry, without the consent of the actual possessor, held and detained with strong hand the professional golf shop at the Oronoque Village Golf and Country Club, of which he was a tenant with exclusive control and occupancy, operating his business of a professional golf shop. He alleged further that the defendants continued unlawfully to prevent him from using the premises, having changed the locks, and that he did not intend to give up possession of the premises or of his personal property. He requested a writ of restitution and other relief. The defendants alleged by way of special defense that the plaintiff was never a tenant, that he was an at-will employee, and that he had been discharged and was not entitled to remain at the shop thereafter.

In their appeal from the judgment for the plaintiff, the essential claim of the defendants is that the court erred in finding that the plaintiff was in actual possession of the premises.

The court found the following facts. The defendants own and manage Oronoque Village Golf and Country Club, a private golf course complex in Stratford which is a part of a condominium development. On the first floor of the club house is a golf pro shop which is separated from the locker rooms and business office.

The court further found that in February, 1987, the plaintiff sought the position of golf pro at Oronoque. He was hired pursuant to an oral agreement as an at-will employee. The employment was to commence on March 1, 1987, and was to end on December 1, 1987, if not sooner terminated. The plaintiff was to receive $10,000, payable at the rate of $200 per week during his employment. The plaintiff was to perform the normal teaching duties of a golf pro, arrange tournaments and oversee the locker rooms and driving range. As additional compensation, he was permitted to retain all fees earned from storage of equipment for members and from golf lessons. He was to reestablish, at his own risk, the pro shop which had formerly been operated in the club house. He was to assign starting times, collect greens fees and rent golf carts. He was permitted to retain a portion of the golf cart rental fees, and he was to keep all profits from sale of merchandise and equipment that he provided.

The court also found that on March 1,1987, the plaintiff began his duties. He purchased merchandise, equipment and display racks, and obtained a user tax number. With the defendants’ permission, he changed the lock on the entry door. He had a telephone installed in the pro shop and paid the telephone bills. He hired sales people, and he ran the pro shop as any other small retailer might run his business. The defendants had no key to the pro shop and were able to enter only during business hours. The defendants exercised no control over the floor space of the pro shop except that they required that the premises be used to sell golf-related merchandise and equipment.

The court found, furthermore, that on May 13,1987, the defendants terminated the plaintiff’s employment. Without consent from the plaintiff, the defendants had the plaintiff’s merchandise and equipment removed from the pro shop and they had the lock on the entry door changed. They ordered the plaintiff off the premises and threatened him with arrest should he return.

The defendants agree that the merchandise and equipment that they removed from the pro shop belongs to the plaintiff and that he may cqllect it at any reasonable time.

We first consider whether this appeal is moot. Although neither party raised this claim, the plaintiff was hired only until December 1, 1987, at the latest. The agreement provided that his employment might be terminated, before that, as indeed it was. It would seem that if the plaintiff had any right of possession at all, it could not extend beyond December 1, 1987. The parties claim, however, thát whether the plaintiff is entitled to damages depends upon whether or not he was entitled to possession, and that this must be decided in this action. Accordingly, we address the defendants’ claim.

From the facts found, the trial court concluded that the plaintiff had actual peaceful possession of the golf pro shop on May 13,1987. Although the trial court concluded that the plaintiff operated the pro shop as any other small retailer might run a business and that the overall control claimed by the defendants was no more than any landlord might reserve when renting a retail store, it explicitly made no finding regarding the existence of a landlord-tenant relationship between the parties. It found that the plaintiff obtained possession of the pro shop pursuant to his oral agreement with one of the defendants and that it appeared that the possession may have been an incident of his employment. Finally, it concluded that the defendants, after having made peaceful entry into the golf pro shop, albeit without the plaintiffs consent, held and detained the premises so that the plaintiff would have had to commit a breach of peace to regain possession. It then rendered judgment that the plaintiff be restored to and reseized of the premises.

The process of entry and detainer is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, who has been deprived of it, may be restored to the possession and enjoyment of that property. For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry. Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987). The question of whether the plaintiff was in actual possession at the time of the defendants’ entry is one for the trier of fact. Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985). Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land. Id., 394.

Where the legal conclusions of the trial court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the trial court’s decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts v. Manchester, 181 Conn. 217, 222-23, 435 A.2d 24 (1980).

We agree with the defendants that the conclusion that the plaintiff was in actual possession of the premises is not supported by the facts found. On the facts of this case, the plaintiff never had a right to possession of the golf pro shop that entitled him to maintain his action for forcible entry and detainer. He had not leased the premises. He paid his own telephone bills and bought his own equipment, but he had never paid rent. He claims that his oral agreement with the defendants was in reality two agreements, one an employment agreement and the other a lease. We find no support in the facts for the claim that there was a lease, and the trial court did not find that there was one. The plaintiff was not a tenant at all, and whatever right he had to use the golf pro shop premises was an incident to his at-will employment as the golf pro. The plaintiff makes no claim that his employment was improperly terminated. Once the employment came to an end, so did whatever right to possession existed as incident to that employment.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       General Statutes § 47a-43. (Formerly § 52-462) provides: “complaint and procedure: forcible entry and detainer; entry and detainer. (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent .of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the superior court.”


author: O’Connell, J.

text:
    Jean Taylor v. Bruce Taylor
    (6566)
    Borden, O’Connell and Stoughton, Js.
    Argued November 1, 1988
    decision released January 10, 1989

      Gary I. Cohen, with whom was Laurel A. Ellson, for the appellant (defendant).

      John F. Fallon, with whom, on the brief, was Jay S. Kogan, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant’s appeal from the denial of his motion for modification of unallocated alimony and child support, which he filed on the ground of the plaintiff’s cohabitation with another person. The defendant claims the trial court erred in concluding (1) that the plaintiff was not living with another person within the meaning of General Statutes § 46b-86 (b), and (2) that the plaintiffs living situation had not altered her financial circumstances. We find no error.

The following facts are dispositive of this appeal. The marriage of the parties was dissolved by the Superior Court on October 3,1983, and the parties’ separation agreement was incorporated by reference into the dissolution decree. Article III of the agreement provided that unallocated alimony and support payments would terminate “if the wife shall marry or cohabit prior to June 30, 1991.”

In September, 1986, the plaintiff purchased a house as a joint tenant with right of survivorship with another woman whose marriage had also been dissolved. The plaintiff lives in the house with her two children as does the cotenant and her son. Each woman has her own bedroom and there is no allegation of a sexual relationship between them. Both women and their children share in common all areas of the house with the exception of their respective bedrooms. The women set up a joint checking account from which the mortgage, utilities and household maintenance expenses are paid. Otherwise, each family pays for its own food, clothing and personal expenses.

In seeking modification of the alimony and support order, the defendant claimed that the plaintiff was cohabiting with another person as prohibited by the separation agreement. The memorandum of decision discloses, however, that the court did not look to the separation agreement in denying the modification. Rather, it found that the plaintiff was not living together with another person, pursuant to General Statutes § 46b-86 (b). That statute “is a separate and independent statutory basis for the modification of alimony and is a claim which must be raised in a written motion by the party seeking to modify the award of periodic alimony.” (Emphasis added.) Connolly v. Connolly, 191 Conn. 468, 478, 464 A.2d 837 (1983). It authorizes the Superior Court to exercise its discretion, upon notice and hearing, to “ ‘suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person’ . . . .” Id., 474, quoting § 46b-86(b). Therefore, because the defendant failed to raise the statute as grounds for his motion, it was error for the trial court to rely exclusively on it in rendering its decision.

We find, however, that the error was harmless because it is evident that the trial court’s analysis would reach the same result if applied to the separation agreement. There, the term “cohabit” was not defined and the court was left to construe it according to its ordinary use. Furthermore, our Supreme Court has defined cohabiting as “a dwelling together of man and woman in the same place in the manner of husband and wife.” Wolk v. Wolk, 191 Conn. 328, 332, 464 A.2d 780 (1983); see also 2 Am. Jur. 2d, Adultery and Fornication § 1.

The court’s finding that the plaintiff was not living with another person as expressed in § 46b-86 (b) and as interpreted by our courts; see Lupien v. Lupien, 192 Conn. 443, 472 A.2d 18 (1984); Connolly v. Connolly, supra; Kaplan v. Kaplan, 186 Conn. 387, 441 A.2d 629 (1982); O’Bymachow v. O’Bymachow, 12 Conn. App. 113, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987); necessarily implies that she was not cohabiting as the term is used in the separation agreement. Hence, this is a classic case of a correct decision resting on mistaken grounds. In re Rafael A., 15 Conn. App. 641, 646 n.4, 545 A.2d 1162 (1988).

In View of our disposition of the first claim of error, we do not reach the second claim.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements caused such a change of circumstances as to alter the financial needs of that party.” (Emphasis added.)


author: Foti, J.

text:
    Rostenberg-Doern Company, Inc. v. Alan G. Weiner et al.
    (6082)
    Dupont, C. J., Spallone and Foti, Js.

      Argued October 4, 1988
    decision released January 10, 1989

      Edward J. Gallagher, for the appellant (plaintiff).

      Jack D. Garamella, for the appellees (defendants).
   Foti, J.

The plaintiff, Rostenberg-Doern Company, Inc., initiated this action to recover a real estate commission in connection with the rental of commercial property owned by the defendants, Alan and Keith Weiner. After the pleadings were closed, the case was referred to an attorney trial referee pursuant to General Statutes § 52-434 (a) (4). Following a hearing, the trial referee issued a report that included his recommendation that judgment be rendered in favor of the plaintiff. The trial court accepted the trial referee’s findings of fact, but rejected his conclusions of law and rendered judgment for the defendants. The plaintiff appeals from the judgment and claims that the trial court erred (1) in rendering its decision in accordance with Practice Book § 546J, rather than Practice Book § 443, (2) in accepting a particular fact found by the trial referee, and (3) in rejecting the trial referee’s legal conclusions. We find no error.

The following facts were found by the attorney trial referee and accepted by the court. The plaintiff is a licensed real estate brokerage company. The defendants, Alan and Keith Weiner, are business partners, and Keith Weiner owned a parcel of commercial real estate in Brookfield. The plaintiff, through its agent, Jerome Kovacs, approached the defendants to lease this property for a client. On or about November 18,1983, Alan Weiner signed a real estate listing agreement prepared by the plaintiff, which left blank the designated space for entry of the dollar amount of the plaintiff’s commission. The contract was then forwarded to the plaintiff who signed it and filled in some of the missing information, including its address and commission rate which was stated as “five dollars per square foot with escalation.” A photocopy of the agreement, containing the additions and an attached rate schedule, was returned to the defendants. Among the attachments were provisions for the payment of interest on overdue accounts and attorney fees for the collection of a commission. After two months of negotiations between the defendants and the plaintiff’s client, the parties executed a lease agreement. Kovacs was an active participant in those negotiations, and the lease named the plaintiff as broker for the property. In February, the plaintiff sent the defendants a bill for its commission in the amount of $27,400. The defendants refused to pay that amount, and the plaintiff brought this action to recover its commission.

The plaintiffs first claim is that the trial court erroneously referred to Practice Book § 546J as the authority for its decision and, as a result, treated the attorney trial referee as a “fact-finder.” While we agree that the trial court’s reference to Practice Book § 546J was improper, we conclude that it nevertheless acted properly.

It is undisputed that the attorney trial referee in this case was appointed pursuant to General Statutes § 52-434 (a) (4) and not General Statutes § 52-549n. These two statutes authorize the appointment of qualified members of the bar to sit as adjuncts to the trial bench in nonjury cases for the purpose of accelerating the disposition of cases. While attorney referees appointed pursuant to General Statutes § 52-434a (4) are authorized to hear a broader assortment of disputes involving greater monetary value, those appointed pursuant to General Statutes § 52-549n are referred to as “fact-finders” and possess less authority. General Statutes § 52-549n; Practice Book § 546D. Proceedings before attorney trial referees appointed in accordance with General Statutes § 52-434 (a) (4) are governed by the procedures set forth in Practice Book § 434 through § 444. Ruhl v. Fairfield, 5 Conn. App. 104, 105, 496 A.2d 994 (1985). “In like manner, Practice Book §§ 546B-546K control the referral of cases to the newly created factfinders under General Statutes § 52-549n . . . .” E. I. Constructors, Inc. v. Scinto, 12 Conn. App. 348, 352, 527 A.2d 1195 (1987). Therefore, the plaintiff is correct that because the attorney trial referee in this case was appointed pursuant to General Statutes § 52-434 (a) (4), the trial court should have cited Practice Book § 443 as the authority for its decision.

The plaintiff argues that Practice Book § 443 provides no authority for the action taken by the trial court in this case. Instead, it claims that Practice Book § 443 required the trial court to remand the matter to the same or a different trial referee when it determined that the attorney referee made a “material error.” The question for us to decide, therefore, is whether the trial court had the authority, pursuant to Practice Book § 443, to reject the attorney trial referee’s legal conclusions and render judgment for the defendant contrary to the trial referee’s recommendation. We conclude that the trial court was authorized to do so.

While the two referral programs differ in name, source of appointment and scope of authority, under both programs the referees “share the same function of factfinders ‘whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.’ ” E. I. Constructors, Inc. v. Scinto, supra, quoting Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986). Under either program, there is no authority to render judgments. Health Planning Associates, Inc. v. Whitlock, 12 Conn. App. 190, 193, 529 A.2d 1352 (1987). Thus, “having no power to render a judgment, an attorney referee is simply a factfinder . . . .” (Emphasis added.) Seal Audio, Inc. v. Bozak, Inc., supra, 502.

Our rules of practice outline the functions and duties of attorney referees and factfinders and place an affirmative obligation on them to report to the court the “facts found and the conclusions drawn therefrom.” Practice Book § 434; see also Practice Book § 456g. Although the rules make no reference to any additional duties, they permit attorney referees to express their views on questions of law. Practice Book § 434; Practice Book § 546g; Seal Audio, Inc. v. Bozak, Inc., supra, 509-10. Our Supreme Court has concluded that “[t]he fact that the attorney referee went beyond the bare statutory requirement of reporting the facts found by including his opinion upon the legal issues involved in the case did not transform his role into a judicial one. The views of a committee upon the law carry no more force than those of the parties in their arguments at the hearing before the court that is to enter judgment. See Lyon v. Wilcox, 98 Conn. 393, 396, 119 A. 361 (1923); Stehlin-Miller-Henes Co. v. Bridgeport, 97 Conn. 657, 665, 117 A. 811 (1922).” Seal Audio, Inc. v. Bozak, Inc., supra, 510. Practice Book § 443 specifically provides that “[t]he court shall render such judgment as the law requires upon the facts in the report as it may be corrected.” “The reviewing court is the effective arbiter of the law and the legal opinions of a committee, like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” Seal Audio, Inc. v. Bozak, Inc., supra; see also Rowan Construction Corporation v. Hassane, 17 Conn. App. 71, 549 A.2d 1085 (1988).

Our case law is clear that under either referral program the attorney referee is simply a factfinder whose legal conclusions are merely advisory, and the trial court therefore has the inherent authority to reject legal recommendations. We conclude that the language in Practice Book § 443 that requires the trial court to remand a case to the original referee or a different one where it finds the referee “materially erred in its rulings,” refers to the attorney referee’s findings of fact and not to his or her conclusions of law. Therefore, since attorney trial referees appointed under General Statutes § 52-434 (a) (4) are factfinders whose conclusions of law are not binding on the trial court, it was not error for the trial court to reject the trial referee’s conclusions of law. Although the trial court referred to the incorrect rule of practice in rendering its decision, we will not reverse that decision because we find the trial court reached the correct result. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

The plaintiff’s second claim of error asserts that the trial court erred in refusing to consider its objection to a particular fact as found by the attorney trial referee. The plaintiff did not file a motion to correct the findings of the attorney trial referee or object to the trial court’s acceptance of the report as required by our rules of practice. Instead of filing its own objection, the plaintiff now relies upon its memorandum in opposition to the defendants’ objections to the attorney trial referee’s report in which it merely stated its disagreement with the trial referee’s finding.

The plaintiff’s notation in its memorandum opposing the defendants’ objections is not a substitute for filing a proper motion in accordance with our rules of procedure. Since the plaintiff has failed to follow the appropriate procedural guidelines as required by the rules, we are precluded from reviewing its claim. Dorsen v. Kay, 13 Conn. App. 645, 650, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 528, 532 A.2d 593 (1987). “ ‘A litigant cannot wholly ignore established procedures for the protection of [its] rights, as [the plaintiff] has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.’ ” Dorsen v. Kay, supra, 650, quoting Seal Audio, Inc. v. Bozak, Inc., supra, 518. We therefore decline to review this claim.

The plaintiff’s final claim of error is that the trial court erred in rejecting the attorney trial referee’s recommendations and finding that the listing agreement signed by the defendants did not comply with the requirements of General Statutes § 20-325a (b), and was, therefore, invalid. The attorney trial referee found, and the trial court agreed, that the listing agreement signed by the defendants did not include the amount of the plaintiffs commission or any attachments with respect to the plaintiffs rate schedule. On December 1, 1983, the plaintiff sent the defendant a photocopy of the agreement. This copy contained a number of additions which were inserted by the plaintiff including, the plaintiffs signature, the amount of its commission and an attached rate schedule. In addition to these factual findings, the attorney trial referee made a number of legal conclusions and recommended that judgment be rendered in favor of the plaintiff. In rejecting the trial referee’s legal conclusions, the trial court found that the attorney trial referee erred as a matter of law in concluding (1) that the plaintiff “reformed” the agreement when it attached the commission schedule and sent it to the defendant on December 1, 1983, and (2) that the defendants were “estopped” from denying responsibility under the altered instrument by accepting the plaintiff’s services. The trial court concluded that the plaintiff’s failure to comply with the requirements of General Statutes § 20-235a (b), by omitting the amount of its commission from the contract when it was signed by the defendants, rendered the contract unenforceable.

The plaintiff claims that the trial court’s conclusion that no legal contract was created is erroneous for two reasons. First, the plaintiff argues that the trial court erred in accepting the trial referee’s factual finding that the listing agreement signed by the defendants on November 18, 1983, did not contain any attachments with respect to the plaintiff’s commission. As we concluded above, the plaintiff’s claim for review of this factual determination is precluded because the plaintiff failed to file the proper objections to the factfinder’s report as required by Practice Book §§ 438 and 440. This factual conclusion, therefore, must stand. Suppa Bros., Inc. v. Structures, Inc., 12 Conn. App. 675, 677, 533 A.2d 901 (1987); Seal Audio, Inc. v. Bozak, Inc., supra; see also Midland Ins. Co. v. Universal Technology, Inc., 199 Conn. 518, 521-22, 508 A.2d 427 (1986).

The plaintiff’s second argument is that, even if there were no attachments to the agreement when it was signed by the defendants, the original document and the December 1,1983 photocopy of that document with the insertion of the plaintiff’s commission rate and attached rate schedule, read together, created a valid contract pursuant to General Statutes § 20-325a (b).

“ ‘On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. [Practice Book § 4061]. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986).” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 242-43, 524 A.2d 610 (1987).

Our Supreme Court has found that listing contracts are governed exclusively by General Statutes § 20-325a. William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982). That statute provides that a licensed real estate broker may bring an action to recover a commission, only if he enters into a contract that complies with the requirements enumerated in the statute. Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230, 439 A.2d 946 (1981); Howland v. Schweir, 7 Conn. App. 709, 713, 510 A.2d 215 (1986). To comply with the requirements of that section, the contract must include a number of essential terms including “the conditions of such contract.” General Statutes § 20-325a (b) (4). The rate of a broker’s commission is an essential term of a broker’s contract that must be included in the contract. See Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 453 A.2d 771 (1983).

“This statute has been viewed by our courts as being mandatory and subject to strict construction. See, e.g., Thornton Real Estate, Inc. v. Lobdell, supra (signature by owner’s agent not in compliance with statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (lack of address of broker [fatal to claim]); Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 620, 401 A.2d 625 (1978) (lack of address of owner [fatal to claim]). ‘A broker who does not follow the mandate of the statute does so at his peril.’ Thornton Real Estate, Inc. v. Lobdell, supra, 230-31.” Howland v. Schweir, supra, 714.

The plaintiff is correct that “separate documents will be deemed to constitute a valid contract under § 20-325a (b) if they collectively satisfy the statutory requirements and relate to the same agreement. [Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27, 391 A.2d 741 (1978)]. It is not within the power of courts to create new and different agreements. (Emphasis in original.) Collins v. Sears Roebuck & Co., 164 Conn. 369, 375, 321 A.2d 444 (1973).” Jay Realty, Inc. v. Ahearn Development Corporation, supra, 55.

There is no merit to the plaintiffs claim that the combination of the original November contract, signed by the defendant, which made no reference to the plaintiffs commission, and the subsequent photocopy of that document in which plaintiff filled in its commission and attached a rate schedule, was sufficient to satisfy the strict requirements of General Statutes § 20-325a (b). In this case, neither document “points unquestionably to the other document so as to create a consistent contract.” Jay Realty, Inc. v. Ahern Development Corporation, supra, 56. The original contract does not refer to a subsequent document. Nor does the December 1 letter with its attachments refer unequivocally to the original contract. Furthermore, this statute requires not only that the contract contain all the essential terms of the agreement but also specifically requires that the document “be signed by the owner . . . .” General Statutes § 20-325a (b) (5). Although the defendant signed the original document, he did not sign the later document in which the plaintiff inserted the price of its commission. We agree with the trial court that “[t]he plaintiffs subsequent efforts to create a valid contract by attaching the rate schedule cannot legally alter the terms of the contract after it was signed by the defendant.” We will not attribute to the owner a commission price inserted at a later time by the broker, especially under the circumstances of this case, in which the amount of the commission was the disputed issue at trial.

We therefore conclude that the trial court did not err in finding that the listing agreement was not a valid contract in accordance with General Statutes § 20-325a (b).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-434 (a) (4) provides: “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.”

       “[Practice Book] Sec. 546J. —action by court
      “After review of the finding of facts and hearing on any objections thereto, the court may take the following action: (1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact-finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact-finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact-finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the court may deem appropriate.
      “The court may correct a finding of facts at any time before accepting it, upon the written stipulation of the parties.
      “The fact-finder shall not be called as a witness, nor shall the decision of the fact-finder be admitted into evidence at another proceeding ordered by the court.”

       The objectionable portion of the trial court’s decision is as follows: “Accordingly, the court sustains the defendants’ objections to acceptance of the Fact-finder’s report. In accordance with Connecticut Practice Book, Sec. 546J, the court accepts the facts as found but rejects the conclusions and enters judgment for the defendants.”

       See footnote 1, supra.

       “[General Statutes] Sec. 52-549n. certain contract actions REFERRED TO FACT-FINDERS. RULES OF PROCEDURE. In accordance with the provisions of section 51-14, the judges of the superior court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the superior court in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the pleadings have been closed, a trial list claim has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”

       Factfinders are limited to hearing contract actions “based upon an express or implied promise” in which only “money damages . . . less than fifteen thousand dollars” are claimed. General Statutes § 52-549n; Practice Book § 546D.

       “[Practice Book] § 443. function of the court
      “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.
      “The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       In Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), the court found that the rules governing procedures in matters referred to committees are also applicable to attorney trial referees.

       The trial referee’s finding of fact objected to by the plaintiff is as follows: “On or about November 18,1983, at the request of Jerome Kovacs, Mr. Alan Weiner signed a real estate listing agreement with Rostenberg-Doern which is shown as Plaintiffs Exhibit A. Said agreement left the space for price blank, and had no attachments.”

       “[Practice Book] Sec. 438. motion to correct
      “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. He shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. The file shall then be returned to the committee for consideration of the motion to correct. As soon as practicable the committee shall file with the court the motion to correct, together with his decision thereon.”

       “[Practice Book] Sec. 440. objections to acceptance of report
      “A party may file objections to the acceptance of a report on the ground that conclusions of facts stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading.”

       “[General Statutes] See. 20-325a. actions to recover commission ARISING OUT OF REAL ESTATE TRANSACTIONS. . . .
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.”

       In its brief, the plaintiff states that it “is not fully in accord with the fact-finder’s conclusion that it reformed the agreement when it attached the Commission schedule” and that it does not rely on the theory of estoppel. In light of these concessions we consider these arguments waived. We note, however, that this court decisively held in Currie v. Marano, 13 Conn. App. 527, 530-31, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988), that the theory of equitable estoppel does not apply to actions brought pursuant to General Statutes § 20-325a. Furthermore, we agree with the trial court’s well reasoned opinion that reformation is an equitable remedy “granted by a court to reform a written agreement to mirror the parties’ intentions. J. Calamari & J. Perillo, Contracts (2d Ed.) §§ 9-31-36, pp. 311-316. As such, one of the parties cannot reform it; the changes made by the plaintiff constitute an alteration of the contract.” (Emphasis in original.)

       See footnotes 8 and 9 supra.


text:
    State of Connecticut v. Charles Coleman
    (6350)
    Spallone, Stoughton and Norcott, Js.
    Argued October 20, 1988
    decision released January 10, 1989

      Jon C. Blue, assistant public defender, with whom, on the brief, was Joette Katz, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Susan Marks, assistant state’s attorney, and Eileen McCarthy Geel, legal intern, for the appellee (state).
   Stoughton, J.

The defendant appeals from the judgment of conviction rendered following his pleas of guilty to twenty of twenty-six counts in nine separate informations. The pleas were made under the doctrine of the Alford case. Before he was sentenced, the defendant moved to withdraw his pleas. The motion was denied except as to one count and sentence was imposed.

The defendant claims (1) that his pleas were not made knowingly and voluntarily because the presiding judge had advised him incorrectly as to the mandatory minimum sentences for the crimes charged, (2) that participation by the judge in the plea negotiations rendered the pleas involuntary, and (3) that the judge should have disqualified himself. We find no error.

The defendant was arrested and charged with twenty-six counts arising out of nine different incidents. These counts included six sexual assaults, eight burglaries, multiple robberies, larcenies, assaults, and various criminal attempts. The maximum penalty for all the charges could have been 311 years. A plea agreement between the state and the defendant was reached on the eve of trial. Under the agreement, the defendant was to plead guilty to a majority of the charges while the state would nolle the remaining charges and recommend a thirty-five year sentence. The defendant would be free to argue for a thirty year sentence. The judge had been present during some of the negotiations between the state and the defense counsel. After an agreement was reached, the judge stated that he would follow the recommendations unless, upon review of the presentence report, he believed that there should be a more lengthy sentence, in which case he would allow the defendant to withdraw his pleas.

On May 27,1987, the defendant pleaded guilty to various charges under the Alford doctrine. The state then recited its factual basis for the charges, which included the fact that the defendant’s fingerprints were found at all the crime scenes. The terms of the plea agreement were noted by the state with the concurrence of defense counsel.

The court then canvassed the defendant to determine whether his pleas were made voluntarily and intelligently. After the court was satisfied that the pleas were entered knowingly and voluntarily, and that the defendant had understood the crimes charged and their possible penalties and had received adequate and effective assistance of counsel, the court accepted the pleas.

Thereafter, the defendant moved to withdraw his pleas. After a hearing before the judge who had accepted the pleas, the motion was denied. The court then sentenced the defendant to serve a total maximum effective sentence of thirty-five years.

The defendant’s first claim is that his pleas were not voluntarily and knowingly made because the court incorrectly informed him that the mandatory minimum sentence to be served was thirty years. The defendant points out that under General Statutes § 53a-37, a sentencing court may make all mandatory minimum sentences run concurrently. The defendant correctly states that if the sentences had run concurrently, the mandatory minimum sentence would have been five years rather than thirty years as stated by the court. He asserts that this error by the court rendered his plea involuntary and unknowing because he thought that the sentence recommended was close to the minimum sentence that could have been imposed. The defendant raises this issue for the first time on appeal. “Those claims which implicate the knowing and voluntary nature of a plea are reviewable under the exceptional circumstances doctrine of State v. Evans, [165 Conn. 61, 70, 327 A.2d 576 (1973)].” State v. Wright, 207 Conn. 276, 286, 542 A.2d 299 (1988). Accordingly, we undertake a review to ascertain if the claim affects the knowing and voluntary nature of the defendant’s plea. Id., 287.

Our review of the plea canvass discloses that while the defendant was understandably unhappy about having to choose between going to trial in the faCe of strong state’s evidence and accepting the plea agreement, he clearly understood that he could receive a harsher sentence if he were to be convicted at trial. The defendant was informed of the rights he was waiving, the charges against him, and the possible sentences. The defendant stated that he was not under the influence of drugs or alcohol, that he had consulted with his lawyer, that he had not been threatened, and that it was his own decision to enter the pleas under the Alford doctrine.

After careful review, we conclude that the plea was knowingly and voluntarily made. The defendant received the sentence he bargained for. See D'Amico v. Manson, 193 Conn. 144, 154, 476 A.2d 543 (1984). A defendant’s less, than perfect understanding of all aspects of his situation does not “inevitably render his guilty plea ‘unknowing’ and therefore involuntary . . . .’’Id. The trial court’s failure to advise the defendant that the mandatory sentences could be made concurrent did not affect the knowing and voluntary nature of his guilty plea. The defendant’s further contention that there was a violation of Practice Book § 711 (2), thus requiring a finding that the plea was not knowing and voluntary, has been foreclosed by our Supreme Court’s decision in State v. Collins, 207 Conn. 590, 595, 542 A.2d 1131 (1988), which held that such claims are not reviewable under the Evans bypass doctrine.

The defendant’s second claim is that the judge’s participation in the plea negotiations rendered the pleas involuntary. Again, this issue is raised for the first time on appeal. Because this claim also involves the voluntariness of the defendant’s plea, we will review it under the doctrine of State v. Evans, supra. Upon our review of the record, we find no support for the defendant’s proposition that the judge “forged” the plea agreement or that he in any way had an interest in obtaining the defendant’s guilty plea or that he “exacerbated the already inherently coercive nature of the situation.” During the plea canvass, the court diligently attempted to make sure that the defendant was fully aware of all the consequences of pleading guilty and all the possible consequences of going to trial. We find nothing coercive about this. Accordingly, the defendant’s claim that the trial court’s behavior rendered the defendant’s plea involuntary is without merit.

The defendant’s final claim is that the judge should have disqualified himself from participating in the plea canvass and the hearing on the motion for withdrawal of pleas because of his participation in the plea negotiations. Once more we are presented with an issue that is raised for the first time on appeal.

Initially, as we previously noted, there is no evidence that the judge “participated” in the plea bargain. Beyond that, however, the failure to raise a disqualification issue at trial will bar its review on appeal except in the exceptional circumstance where such “an accusation of actual prejudice has been made against a judge, striking at ‘the very core of judicial integrity ....’” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986), quoting Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953).

The defendant admits that he makes no accusation of prejudice. This is dispositive of this claim.

There is no error.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The trial court recited the various charges against the defendant and then told him: “What that means in terms of mínimums and máximums here, is that you have actually 16 years of these based on these charges and is absolutely mandatory minimum that the court cannot suspend or reduce any way. The total minimum sentences you would face would be 30 years and the absolute minimum sentence you would face on all of the charges, if they were all imposed consecutively, would be 311 years. So that’s what you would face in terms of total exposure if absolute maximum sentences were imposed on every single charge.”

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he 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 has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       The defendant’s assertions that the trial judge participated in the plea agreement in chambers are without merit. “Representations made by counsel are not evidence in the record upon which we can rely on our review of the judge’s conduct.” State v. Weber, 6 Conn. App. 407, 413, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). In the absence of an adequate record corroborating the defendant’s claims, we cannot, and will not, ascribe such conduct to the trial court.