text:
    Connecticut Savings Bank v. Sidney Burger, Trustee, et al.
    (8830)
    Daly, Cretella and Landau, Js.
    Argued June 13
    decision released September 11, 1990

      Lawrence F. Cafero, Jr., for the appellants (defendant Siegfried Berger et al.).

      William A. Schofield, for the appellee (plaintiff).
   Daly, J.

The dispositive issue in this appeal is whether the trial court abused its discretion in ordering a strict foreclosure rather than a foreclosure by sale of certain property owned by the named defendant, Sidney Burger, trustee. We conclude that the trial court abused its discretion and reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The plaintiff commenced this action to foreclose its first mortgage on a tract of unimproved land in the town of Ridgefield owned by the named defendant. The amount of that first mortgage was $72,000 in principal plus interest. Siegfried Berger and Elisabeth Berger were also named as defendants by virtue of their second mortgage of approximately $50,000 on this property. The other defendants named were Raymond Velasquez and Kay Ann Velasquez by virtue of an attachment of $20,000. That encumbrance was subsequent in right to the second mortgage. There were also unpaid taxes of approximately $3200 on this land owed to the town of Ridgefield, bringing the total debt on the property to approximately $145,000. In May, 1989, the Bergers moved for foreclosure by sale and in July, 1989, the plaintiff moved for foreclosure by sale. On August 15, 1989, all the defendants were defaulted for failure to disclose a defense.

On October 2,1989, with only the plaintiffs counsel present, a hearing was held and the plaintiff’s appraiser placed a value of $125,000 on the property at issue. After hearing evidence on the value, the court found the value of the property to be $125,000. It also found the debt owed to the plaintiff was $83,338.92, with interest “from the date hereof,” and costs taxed at $857.90 for a total of $84,196.82. The $83,338.92 sum included $1200 in attorney’s fees. The court then heard argument on only the plaintiff’s motion for foreclosure by sale, but the plaintiff indicated to the court that the Bergers had also moved for foreclosure by sale. The court, Moraghan, J., denied these motions and ordered a strict foreclosure, concluding that “[t]he only thing a foreclosure by sale is going to do is eat up what’s there for the others. There’s no equity in this property.” On October 17, 1989, before the time to redeem had expired, the Bergers moved to open the judgment, again seeking a foreclosure by sale. After argument, which included argument by the Bergers’ counsel, the court, West, J., denied this motion. The Bergers then appealed to this court.

The Bergers claim that the court abused its discretion in denying the motions for foreclosure by sale and ordering a strict foreclosure. Relying principally on Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d 1027 (1988), the Bergers argue that the court abused its discretion when it refused to order a foreclosure by sale because there was substantial equity in the property in excess of the first mortgagee’s debt and expenses. We agree.

In Fidelity Trust Co., our Supreme Court reversed this court and concluded that the trial court abused its discretion in denying the second mortgagee’s motion for foreclosure by sale where there would have been $10,000 available for distribution to the subsequent encumbrancer who was owed $25,000. Id., 488-91. In that case, the $10,000 would have amounted to 40 percent of the mortgagor’s indebtedness to that encumbrancer. Id., 489. The court stated: “in a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner. The . . . second mortgagee invoked statutory discretionary power of the trial court when it filed a motion for foreclosure by sale as authorized by General Statutes § 49-24. We have stated: ‘the remedy of the second mortgagee in such a case as this, if he cannot or does not wish to redeem, is by application for an order of sale under the statutes; General Statutes § 5112 et seq.; and we have suggested that one purpose of this statutory remedy was to meet just a situation as is here present. Staples v. Hendrick, [89 Conn. 100, 93 A. 5 (1915)]. It is true that the grant of an application rests in the sound discretion of the court; Bradford Realty Corporation v. Beetz, [108 Conn. 26, 31, 142 A. 395 (1928)]; but if there is need of a sale to protect the just right of the parties, we have little fear that the court will not order it.’ New Haven Bank v. Jackson, 119 Conn. 451, 455,177 A. 387 (1925).” Fidelity Trust Co. v. Irick, supra, 490-91.

Likewise, in the present case, there would have been approximately $32,000 to be distributed to the Bergers as subsequent mortgagees had a foreclosure by sale been ordered and the full value realized. This amount would have reduced the mortgagor’s debt to these encumbrancers by 64 percent.

The plaintiff argues that Fidelity Trust Co. is distinguishable from the facts of the present case in two respects. We disagree.

First the plaintiff argues that unlike that in Fidelity Trust Co., the valuation of the property in this case was at issue because of the alleged testimony of the plaintiff’s appraiser that her valuation was reached on the assumption that the property would be approved for a septic system for only a two bedroom house, yet, at the time the appraiser testified, this land had not yet been approved for a septic system. This, the plaintiff alleges, is a cost that would have to be borne by the new owner. This argument is without merit. The valuation of the property was not at issue in this case. It was the plaintiffs own witness whose uncontroverted testimony placed the value of $125,000 on this property. The court found as a matter of fact that the value of the property was $125,000 and called the property “raw land.” It placed no condition as to how it made this finding. This finding was supported by the evidence.

The plaintiff then argues that unlike the real estate market in Fidelity Trust Co., the real estate market from October 2, 1989, through the present has been extremely depressed and it is highly -unlikely that a foreclosure by sale will result in a bid of $125,000.

This concern was recognized and dealt with in Fidelity Trust Co. when the court indicated that “[a] foreclosure by sale may result in bids not only less than the appraised value of the property, but even less than the foreclosing mortgagee’s loan, allowable expenses and taxes. Because the trial court has control of the foreclosure proceeding, it can, in the exercise of its discretion, accept or reject a proposed sale.” Id., 490.

The trial court concluded that there was no equity in the property. While this may be true to the extent that the total debt on the property of approximately $150,000 exceeded the value of $125,000, it was not true as between the debt and expenses of the first mortgage, plus taxes, and the debt on the second mortgage. The trial court abused its discretion when it refused to order a foreclosure by sale.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants Siegfried Berger and Elisabeth P. Berger further challenged the trial court’s rendering the judgment of strict foreclosure instead of foreclosure by sale, claiming that this conclusion was not legally and logically drawn from the subordinate facts found. In view of our conclusion that the court abused its discretion in rendering judgment of strict foreclosure, we need not address this claim.

       We note that the record does not indicate when and if the court acted on the Bergers’ motion for foreclosure by sale of May, 1989. Presumably, it was denied on October 2,1989, when the court had notice that there were two outstanding motions for foreclosure by sale, one by the plaintiff and one by the Bergers, yet the court rendered judgment of strict foreclosure.

       The $10,000 figure was determined as follows: The court determined that the amount owed the first mortgagee, plus allowable fees, costs and taxes was $79,600. The court subtracted that figure from the appraised value of $96,750 for a difference of $17,150. The court then subtracted $7000 from that figure, which amount was the plaintiffs estimated expenses for conducting a foreclosure by sale and concluded, “there would be a remainder of $10,000 available for distribution to the subsequent encumbrancer.” Fidelity Trust Co. v. Irick, 206 Conn. 484, 488-89, 538 A.2d 1027 (1988).

       This amount was arrived at by using the methodology employed by Fidelity Trust Co. v. Irick, 206 Conn. 484, 538 A.2d 1027 (1988). See footnote 3, supra. In the present case, the amount owed the first mortgagee, plus allowable fees ($83,338.92), costs ($857.90) and taxes (approximately $3200) is $87,396.82. This amount, when subtracted from the trial court’s and the appraised value of $125,000 yields $37,603.18. We then subtract $5000 from that figure, which amount is the plaintiff’s estimated expenses for conducting a foreclosure by sale according to the transcript from the motion to open judgment, and arrive at approximately $32,000.

       The record does not entirely support this allegation. The plaintiff’s appraiser testified that the value of $125,000 was “predicated on the subject being most likely approved for only a two-bedroom dwelling.” The appraiser testified that she was aware that in 1987 preliminary plans “for a two bedroom septic system” were denied because of insufficient information. She then indicated that it was not likely that in the future this land would be approved “for more than a two bedroom [dwelling].”

       This figure includes the plaintiff’s estimated expenses of $5000 for a foreclosure by sale.

       We note that the total debt of $123,580.22 owed on the property at issue in Fidelity Trust Co. also exceeded the appraised value of $96,750. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 487-88 n.2., 538 A.2d 1027 (1988).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert B. Kuchinski, Conservator (Estate of Robert P. Kuchinski) v. J. William Burns, Commissioner of Transportation, et al.
    (8801)
    Foti, Lavery and Landau, Js.
    Argued June 5
    decision released September 11, 1990

      Joseph Biraglia, with whom, on the brief, was Charles E. Oman III, for the appellant (plaintiff).

      PaulE. Pollock, for the appellee (named defendant).
   Per Curiam.

The plaintiff appeals from the judgment rendered in favor of the defendant J. William Burns, commissioner of transportation, following the granting of the defendant’s motion to strike the plaintiff’s second substitute complaint.

The plaintiff, Robert B. Kuchinski, is seeking recovery from the defendant under General Statutes § 13a-144 for injuries sustained by his ward Robert P. Kuchinski, on September 17, 1986. As a result of a motorcycle accident, Robert P. Kuchinski suffered a closed head injury with brain stem contusions and was comatose for a period of time. The plaintiff notified the defendant of the accident on March 13,1987,177 days after the accident. On October 10, 1989, the defendant filed his motion to strike the plaintiffs complaint, claiming that the required notice was not timely given in accord with the statutorily mandated ninety day time period set forth in § 13a-144. On November 13, 1989, the trial court granted the defendant’s motion on the ground that notice of the claim had not been timely filed. On December 18, 1989, the court granted the defendant’s motion for judgment.

The plaintiff claims that the trial court improperly rendered judgment after granting the defendant’s motion to strike. He asserts that the ninety day period mandated by § 13a-144 should be deemed to run from the date that a fiduciary is appointed rather than from the date of the accident. The plaintiff argues that since a conservator was appointed on December 22, 1986, and notice was given on March 13, 1987, eighty-one days after the appointment of a fiduciary, that notice was timely under § 13a-144. We do not agree.

Our Supreme Court has long recognized the common law principle that the state cannot be sued without its consent. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977); Textron, Inc. v. Wood, 167 Conn. 334, 339, 355 A.2d 307 (1974). “The absolute bar of actions against the state on the ground of sovereign immunity has been modified by statute and by judicial decisions.” Krozser v. New Haven, 212 Conn. 415, 420-21, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036,110 S. Ct. 757,107 L. Ed. 2d 774 (1990). In the absence of legislative authority, no monetary award against the state may be permitted. Fetterman v. University of Connecticut, 192 Conn. 539, 550, 473 A.2d 1176 (1984).

“General Statutes § 13a-144 created a cause of action, ‘wholly unauthorized by the common law.’ Wethersfield y. National Fire Ins. Co., 145 Conn. 368, 371,143 A.2d 454 (1958).” Zotta v. Burns, 8 Conn. App. 169, 173, 511 A.2d 373 (1986). The statute must be strictly construed. Id.

Section § 13a-144 provides in pertinent part that “[n]o such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.” Giving this statutorily mandated written notice of injury is a condition precedent to the cause of action. Wethersfield v. National Fire Ins. Co., supra.

The purpose of the statutorily required notice is to allow the commissioner to perform a timely investigation of the facts upon which the claim is based. LoRusso v. Hill, 139 Conn. 554, 95 A.2d 698 (1953). In addition, “ ‘[sjtatutes in derogation of sovereignity should be strictly construed in favor of the state, so that its sovereignity may be upheld and not narrowed or destroyed.’ ” Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983).

In light of the above, we must reject the plaintiff’s invitation to read into the statute that the ninety day period should, in this case, run from the date of the appointment of the fiduciary. The wording of the statute is clear and unambiguous. The notice requirement of § 13a-144 is a time limitation and as such is a condition precedent to maintaining an action under the statute.

The judgment is affirmed.

       The plaintiff Robert B. Kuchinski is the conservator of the person and the estate of Robert P. Kuchinski, an incapable person.

       On August 4, 1989, the action was withdrawn as to two defendants, leaving J. William Burns, commissioner, as the only defendant.

       The plaintiff argues that basic fairness and equity require an extension of time for this notice under these circumstances. We note, however, that without General Statutes § 13a-144 these and other similarly situated plaintiffs would have no cause of action at all.


author: O’Connell, J.

text:
    State of Connecticut v. Peter Tuszynski
    (8212)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 6
    decision released September 11, 1990

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were Donald B. Caldwell, state’s attorney, and Patricia Swords, assistant state’s attorney, for the appellant (state).

      Richard P. Lawlor, for the appellee (defendant).
   O’Connell, J.

The state appeals from the trial court’s modification of a five year sentence previously imposed on the defendant. The state asserts that the trial court lacked jurisdiction to modify any sentence in excess of three years, and the defendant counters that since he was not notified of his right to apply for sentence review, the sentence was illegal and could be corrected at any time. We reverse the judgment of the trial court.

The facts are not in dispute. On March 29,1989, the defendant, pursuant to a plea agreement, pleaded guilty to two substitute informations, each of which represented a reduction in the degree of seriousness or in the number of crimes charged in the original informations. As part of the plea agreement, the state agreed to make no sentence recommendation, leaving that matter solely to the sentencing court. The trial court properly canvassed the defendant concerning the voluntariness of his plea and his knowledge of the maximum sentence to which he was exposed.

On May 10, 1989, the defendant was sentenced to a total effective sentence of five years, suspended after forty-two months, to be followed by a two year period of probation. Six days later, the defendant filed a motion for sentence modification, annexing thereto an alternate sentencing plan. On May 31,1989, the court held a hearing, granted the defendant’s requested modification, and reduced the period of incarceration to “time served” and increased the probation period to three years.

On June 13, 1989, the court held a hearing on the state’s motion for reconsideration of the modification. At this hearing, the court appears to have gone through the legal machinations of modifying the “illegal” sentence from forty-two months to three years and then granting the motion to modify the three year sentence to time served. The state did not prevail on its motion for reconsideration, and the defendant was released from custody that day. With the court’s permission, the state has appealed.

The trial court’s jurisdiction to modify a lawful sentence is derived from Practice Book § 934 and the essentially identical language of General Statutes § 53a-39. Section 53a-39 provides in pertinent part that “[a]t any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence . . . .” (Emphasis added.) The defendant clearly based his request for modification of his sentence on that statute. In his motion, he sought only to substitute an alternative sentence for the one imposed. He made no claim at that time that the original sentence was illegal, nor does the record disclose any finding of illegality by the trial court.

The defendant now argues that the sentence was illegal because he was not given written notice of his right to apply for sentence review as required by General Statutes § 51-195. That section provides in part that “[u]pon imposition of sentence . . . the clerk shall give written notice to the person sentenced of his right to [seek sentence review]. . . . A form for making such application shall accompany the notice.” The application for review must be filed with the clerk of the court within thirty days of the date sentence was imposed. Id. The defendant claims that the failure of the clerk to give him notice deprived him of his right to apply for sentence review and his sentence is therefore illegal. The defendant then extends his argument to claim that his illegal sentence may be corrected by the sentencing court pursuant to Practice Book § 935, which grants the sentencing court authority to correct illegal sentences.

Even if we assume that the defendant’s argument is correct, it is of no avail because he has failed to show that he was prejudiced by the clerk’s failure to deliver the required notice. State v. Lytwyn, 27 Conn. Sup. 78, 230 A.2d 40 (1967), upon which he relies, is inapposite. In Lytwyn, the defendant was deprived of an opportunity to be heard before the sentence review division because the court clerk failed to give him the required notice in time to meet the thirty day deadline. Id., 80. Here, despite the defendant’s claim that his sentence was illegal, he filed his motion for sentence modification a mere six days after sentencing. If, only six days after sentencing, the defendant was actually complaining that his sentence was illegal because of lack of notice of his right to apply for sentence review, he obviously became aware of his right to apply well within the statutory period.

The clerk must deliver a notice of sentence review rights at the time of sentencing in order to assure that the defendant can timely exercise them. In the present case, the defendant has demonstrated that he had full knowledge of those rights in time to act but chose instead to complain about a technical omission by the clerk. We will not exalt form over substance. The defendant had the option of filing a timely and proper application for sentence review, but instead he filed this improper motion for sentence modification. See General Statutes § 53a-39 (court’s power to modify limited to definite sentences of three years or less).

Moreover, the lack of timely notice of the right to apply for sentence review did not render the defendant’s original sentence illegal. The defendant’s sentence was clearly legal at the time it was imposed in that it was within the permissible range for the crimes charged. See General Statutes § 53a-35a. The claimed error could not have affected the determination of the sentence itself. C.f., People v. Jordan, 85 Mich. App. 459, 271 N.W.2d 275 (1978) (defendant denied right of allocution prior to sentencing); Ryan v. Crist, 172 Mont. 411, 563 P.2d 1145 (1977) (court improperly considered unconstitutional prior conviction). Those cases involved situations in which the sentence might have been different had the irregularity not occurred. Since the right to sentence review does not arise until after a sentence has been determined and imposed, failure to give notice of that right does not result in an illegal sentence. Consequently, the trial court here could not act under Practice Book § 935 to alter the sentence.

The jurisdiction of the sentencing court terminates when the sentence is put into effect, and that court may no longer take any action affecting the sentence unless it has been expressly authorized to act. State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988). No such authority existed in the present case. The modification statute, § 53a-39, did not apply because the sentence was for more than three years and the rule providing for correction of illegal sentences, Practice Book § 935, did not apply for the reasons set forth. The court, therefore, had no jurisdiction to modify or correct the defendant’s original sentence.

The defendant also tries to find jurisdiction for the court’s action in the intensive probation provision of General Statutes § 53a-39. He asserts that the strict regime of the alternate sentencing program that was approved by the trial court qualifies as intensive probation under § 53a-39. This argument is unavailing because “intensive probation” is a statutory term of art and is not simply “probation that is intensive.” Public Acts 1987, No. 87-538, § 1, now General Statutes § 53a-39, created a special category of sentenced inmates who could be released after serving one half of the unsuspended portion of their sentences. The defendant does not qualify to seek relief under this section.

The defendant also attempts to justify the court’s action under Practice Book § 326. He suggests that State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986), extended the four month rule for opening civil judgments to criminal cases. His argument has no merit. This court soundly rejected a similar claim in State v. Smith, 19 Conn. App. 646, 650, 563 A.2d 1034 (1989), where we held that Wilson does not apply when there is a specific criminal rule on point. This claim is governed by both a statute and a rule and, therefore, Wilson has no effect.

The judgments modifying the sentence are reversed, and the case is remanded to the trial court with direction to reinstate the original sentence.

In this opinion the other judges concurred.

       The defendant pleaded guilty to one count of burglary in the second degree in violation of General Statutes § 53a-102, one count of burglary in the third degree in violation of General Statutes § 53a-108, and one count of larceny in the third degree in violation of General Statutes § 53a-124.

       The defendant also admitted to a violation of probation and received a three year concurrent sentence for that offense. The record does not disclose what happened to that sentence when the sentence was modified.

       The pertinent part of Practice Book § 934 is identical except that it refers to the “judicial authority” instead of the “sentencing court or judge.”

       The failure to give the defendant notice of his right to apply for sentence review was not necessarily an oversight on the part of the clerk. Under the interpretation of “plea agreement” in effect at the time the defendant was sentenced, he was not entitled to sentence review or to notice thereof. While this appeal was pending, the Supreme Court decided Staples v. Palten, 214 Conn. 195, 200-201, 571 A.2d 97 (1990), defining “plea agreement” to exclude an agreement that did not provide for an agreed term of years. For purposes of this case, the parties treated Staples as applicable and so do we.

       Practice Book § 935 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed.”


author: Foti, J.

text:
    In re Jonathan P. et al.

    (8221)
    Foti, Lavery and Cretella, Js.
    Argued May 11
    decision released September 11, 1990

      David J. Wenc, for the appellant (respondent father).

      Mary-Anne Ziewacz Mulholland, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Foti, J.

The respondent father is appealing the judgment of the trial court terminating his parental rights to three minor children rendered after petitions were brought by the department of children and youth services (DCYS) pursuant to General Statutes § 17-43a. He claims that the trial court improperly proceeded and heard testimony before he arrived in court. We agree and remand for further proceedings.

The following facts are uncontested and are relevant to the disposition of this appeal. The petitions submitted by DCYS allege abandonment, absence of parent-child relationships, and failure to rehabilitate. They are directed at both parents and their ability to care for their three children, Jonathan P., born April 4, 1983, Waddiel P., born October 12,1985, and Daniel G., born October 20,1986. After DCYS obtained service on the respondent by publication, separate counsel was appointed for him, although his whereabouts were unknown. In addition, the court ordered that a psychological evaluation of the mother, who was incarcerated at the time, and the children be made by a Spanish-speaking psychologist. On the initial date set for trial, the father, who had been located in the custody of the department of correction, appeared with counsel and requested that he be included in the family’s psychological evaluation. The court granted the continuance. Before the next assigned trial date, DCYS amended the petitions to incorporate the circumstances underlying the alleged grounds for terminating the rights of both parents. The trial was delayed a second time at the request of the mother’s counsel and did not begin until more than nine months after the petitions were filed.

On the first day of trial, the mother, her counsel, counsel for the children, counsel for DCYS and the respondent’s counsel came before the court. The respondent’s absence was noted on the record by the court. Before the proceedings began, the respondent’s counsel was excused so that she could phone the department of correction to determine the respondent’s whereabouts. In the absence of the respondent’s counsel, the court examined the file and determined that a habeas writ had been issued to enable the respondent to be in court that day. Before the respondent’s counsel returned to the courtroom, the court read the names of the mother and all counsel who were present into the record. Although the respondent’s and his counsel’s absences were again noted, the court chose to proceed, stating “I really don’t like to keep expert witnesses waiting .... [I]t isn’t as important to have [the respondent] here because he really can’t second-guess the evaluator, but I think we probably have to have permission of [his counsel].” Despite that probability, the court proceeded without first obtaining the permission of the respondent’s attorney. The court commenced the trial by calling, as its own witness, Julia Ramos Grenier, a psychologist, who had conducted the family’s psychological evaluation.

When the respondent’s counsel returned to the courtroom she was informed by the court that Ramos Grenier had been called and was testifying. The respondent’s counsel voiced no objection, and advised the court that the respondent was on his way.

After the respondent’s counsel returned to the courtroom, but before the respondent arrived, Ramos Grenier’s entire report, including the evaluation of the respondent, was entered as a full exhibit. In addition, Ramos Grenier testified as to the respondent’s paternal capabilities four times. On each occasion the respondent’s counsel had the opportunity to object to the questioning, but did not.

The respondent arrived in the courtroom after an extensive cross-examination of Ramos Grenier by his attorney. The transcript indicates that he was present for the remaining seven transcript pages of Ramos Grenier’s testimony. The court granted the respondent’s counsel leave to recall and reexamine the witness if she thought it was necessary now that she could confer with her client. When the respondent arrived, however, his counsel did not seek a recess to confer with him and neglected either to recall or to reexamine the witness any further.

The respondent attended the remainder of the trial. He testified in his own behalf and submitted a posttrial brief that did not raise the issue of his absence during Ramos Grenier’s testimony.

As a general rule, a claim that is not raised at trial cannot be raised for the first time on appeal. State v. Scott, 10 Conn. App. 347, 350, 522 A.2d 1245, cert. denied, 204 Conn. 804, 528 A.2d 1152 (1987). In accordance with Practice Book § 4185, however, this court may notice plain error in the interest of justice; State v. Eric T., 8 Conn. App. 607, 614, 513 A.2d 1273 (1986); or where the court and counsel have overlooked a clearly applicable statute; Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980); or a rule of practice is ignored. Lampasona v. Jacobs, 7 Conn. App. 639, 641, 509 A.2d 1089 (1986).

We conclude that the plain error doctrine must be invoked in the present case because the trial court ignored the mandatory language of state statutes and the rules of practice, and because the respondent was denied his right to due process.

Before a hearing on the termination of a respondent’s parental rights can commence, the court is obligated under. the mandatory language of Practice Book § 1041 (2) to determine that all legally necessary parties are present and to note the same for the record. A parent is a legally necessary party in a termination proceeding; General Statutes § 45-61d (b) (l); Practice Book § 1023 (l) (3); and has a statutory right of confrontation in such proceedings. General Statutes § 46b-135 (b).

The trial court in the present case did not follow the mandates of our statutes and rules of practice when it commenced the termination proceeding in the absence of the respondent and his counsel. It is in the interest of justice to ensure that any parent caught in the throes of a termination proceeding be present, or at least represented by counsel, from the beginning of the hearing. Because a parent is a necessary party to a termination hearing, it was clearly improper for the court to proceed in the absence of the respondent and his counsel. Furthermore, it should be emphasized that, under the circumstances of this case, it would have been improper for the court to proceed before the respondent arrived at court, even if his counsel had been in the courtroom at the time.

The petitioner’s reliance on the outcome of In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 446 A.2d 808 (1982), to support its assertions that the respondent was adequately represented at the hearing is misplaced. While the rule of law set forth in that case applies here, the facts, and consequently the outcome, are clearly distinguishable. In that case, the father, whose .attorney was present throughout the hearing, was incarcerated in California. He asked the court to postpone the termination proceedings until he was released at some time in the indefinite future and the court properly denied his request. In the present case, the respondent was incarcerated in Connecticut and was on his way to the courthouse after a writ of habeas corpus had been issued to ensure his presence at the hearing.

As noted above, the trial court also denied the respondent his right to due process. The principles of due process, as determined by the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), apply to termination cases. In re Juvenile Appeal (Docket No. 10155), supra, 435. In applying this test, this court must consider (1) the private interests at stake, (2) the probable value of additional safeguards, and (3) the risk of improperly denying the respondent his interests in the child through the procedure used. Id., 435-36.

The first two criteria of the balancing test are easily fulfilled by the case at hand. First, because a parent’s rights are unquestionably constitutionally protected interests of high magnitude; id., 440; the respondent’s private interest in retaining his parental rights is clearly compelling and constitutionally protected. Id., 436. The second criterion need not come into play in this case because the respondent does not ask us to enforce “additional” safeguards, but rather he asks us to afford him the benefit of the safeguards already in place in our statutes and rules of practice.

The third prong of this balancing test, questioning whether the respondent was denied his protected interest in the child by the procedure used, is governed by two cases recently decided by this court. In Rozbicki v. Huybrechts, 22 Conn. App. 131, 576 A.2d 178 (1990), we held that a plaintiff in a civil action has the right to be present during jury selection because it is an integral part of the trial process and the plaintiff possesses unique knowledge of the case that may aid his attorney in determining what tactical and strategical moves should be made. Id., 134.

In the matter of In re Christopher A., 22 Conn. App. 656, 578 A.2d 1092 (1990), we held that a DCYS social worker had the right to be present, at counsel table, during the questioning of witnesses in spite of the fact that the attorney representing the social worker was present, that the social worker was a witness in the case, and that all of the nonparty witnesses were sequestered so as not to influence each other’s testimony.

We conclude that the respondent’s spontaneous input into his counsel’s cross-examination and recross-examination of Ramos Grenier was of no lesser importance than the plaintiff’s right to be present during the voir dire of the jury this court found in Rozbicki v. Huybrechts, supra, and that a father’s right to be present during a termination proceeding cannot be placed below the right of a DCYS social worker to be present as found in In re Christopher A., supra.

In the present case, the court should not have proceeded without the respondent’s presence and should not have commenced the hearing in the absence of the respondent’s counsel.

The judgment is reversed in part and the case is remanded for a new hearing as to the respondent father.

In this opinion the other judges concurred.

       Both parents contested this petition for termination of parental rights, but only the father has appealed, and will be referred to herein as the respondent.

       The petitions also sought a waiver of the requirement that the alleged grounds had existed for at least one year because of the totality of the circumstances surrounding these children. General Statutes § 17-43a (b).

       The respondent was not present during the first thirty-three pages of transcript. In all, he missed twenty-four pages of Ramos Grenier’s thirty-one page testimony.

       Practice Book § 4185 provides in pertinent part: “The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       The respondent acknowledges that the issue of his absence was not raised at trial, but seeks review under the exceptional circumstances doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). While a father’s interest in retaining parental rights with respect to his children is constitutionally protected; In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982); and the Golding bypass rule has been determined to apply to noncriminal cases; Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988); our finding of plain error leaves us with no reason to apply a Golding analysis.

       Practice Book § 1041 (2) provides: “The court shall first determine that all parties legally necessary are present and that the rules governing service have been complied with, and shall note these facts for the record. The court shall then inform the parties of the substance of the petition.”

       General Statutes § 45-61d (b) (1) provides: “The court shall cause notice of the hearing to be given to the following persons as applicable: (1) The parent or parents of the minor child, including any parent who has been removed as guardian on or after October 1, 1973, under section 45-43.”

       Practice Book § 1023 (i) provides in part: “ ‘Parties’ includes .... (3) ‘Legal party at interest’: Any person, including a parent, whose legal relationship to the matter pending before the court is of such a nature and kind as to mandate the receipt by him of proper legal notice as a condition precedent to the establishment of the court’s jurisdiction.”

       General Statutes § 46b-135 (b) provides: “At the commencement of any proceeding on behalf of a neglected, uncared-for, or dependent child or youth, the parent or parents or guardian of the child or youth shall have the right to counsel, and shall be so informed by the judge, and that if they are unable to afford counsel, counsel will be provided for them, and such counsel and such parent or guardian of the child or youth shall have the rights of confrontation and cross-examination.”


text:
    State of Connecticut v. Susan Nelson
    (8297)
    O’Connell, Lavery and Cretella, Js.
    Argued June 18
    decision released September 11, 1990

      Gary Case, certified legal intern, with whom were Timothy H. Everett and Pamela A. Mitchell, certified legal intern, and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Paul Gaetano, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

This appeal arises after the defendant’s conditional plea of nolo contendere to a charge of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b. She argues that this manslaughter prosecution (1) violated an earlier plea agreement involving a lesser charge arising out the same incident, and (2) violated the constitutional prohibition against double jeopardy. We reverse.

The following facts are relevant to this appeal. On February 20, 1988, the defendant was driving southbound on Surf Avenue in Milford when she lost control of her vehicle. Her car crossed the northbound lane, mounted the curb and struck a thirteen year old victim, who had been unable to escape the path of the oncoming car. The victim suffered severe head and internal injuries. The defendant failed a field sobriety test and two subsequent breath tests, which showed a blood alcohol level of .163 and .141. She was subsequently charged, inter alia, with assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d.

On April 26,1988, defense counsel, the state’s attorney and Bernard F. Joy, the attorney who represented the victim and his family, met in a pretrial conference with the trial judge in his chambers to discuss a plea agreement. At that conference, Joy informed all present that the victim was still hospitalized in grave condition and that he might not live. At the conclusion of the conference, the trial judge indicated that he would accept the plea. The defendant then pleaded guilty to the assault charge pursuant to the agreement.

The defendant’s sentencing took place on June 10, 1988. At the hearing, the victim’s mother described the condition of her hospitalized son. She informed the court, Gill, J., that the victim’s condition was still extremely serious and that he faced a long and difficult recovery period. The court then sentenced the defendant to the agreed upon term of five years in the custody of the commissioner of correction, suspended after three years, and five years probation. At the conclusion of its sentencing remarks, the court granted the state’s request that property seized from the defendant be destroyed. General Statutes § 54-36a.

The victim died from his injuries on October 26,1988, never having left the hospital. On February 21, 1989, a warrant was issued for the defendant’s arrest on the charge of manslaughter in the second degree with a motor vehicle. The defendant moved to dismiss the information on the grounds that the new prosecution was barred by principles of double jeopardy and that the state had waived any rights to bring additional charges when it agreed to the April, 1988 plea bargain.

At the hearing on the defendant’s motion, the court, Reilly, J., found that, prior to the defendant’s guilty plea, Joy had informed all concerned of the victim’s precarious condition. The court also found, however, that other information, including hospital records, indicated that the victim had been recovering. The court concluded that it would not hold the state to predicting the victim’s death, and it denied the motion to dismiss.

The court then indicated that it would allow the defendant to withdraw her earlier guilty plea, and the defendant did so on June 22, 1989. This was followed by the defendant’s plea of nolo contendere to the manslaughter charge, conditioned on her right to appeal the denial of her motion to dismiss. General Statutes § 54-94a; Practice Book § 4003. She was sentenced to a term of ten years imprisonment, suspended after four years, and five years probation, with credit for time served on the earlier conviction. This appeal followed.

In her first claim, the defendant argues that the agreement under which she pleaded guilty to assault barred her reprosecution on a manslaughter charge because, in bargaining for the plea, the state induced in her a reasonable belief that no further charges would be brought if the victim were to die. She argues that the second prosecution thus violated her due process guarantees. The state counters that it abided by the terms of the agreement and that no mention was made of the chance of further prosecution. Any misunderstanding by the defendant, the state asserts, cannot be attributed to anything the state did or did not say or do.

Plea agreements are an essential and necessary part of the administration of justice; Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) ; and, without this vital process, the overburdened wheels of justice would nearly grind to a stop. “Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.” Id., 261. This essential tool of the criminal justice system will lose its efficacy if the state’s performance of the agreement is contrary to the reasonable expectations of the defendant. State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985); State v. Thomas, 61 N. J. 314, 321, 294 A.2d 57 (1972) . “Because a defendant waives several constitutional rights when [she] elects to plead guilty to a criminal offense, the choice of a guilty plea is of profound significance.” State v. Lopez, supra.

If the state makes promises to the defendant in order to induce a guilty plea, those promises must be fulfilled; Santobello v. New York, supra, 262; and “ ‘[t]he breaking of a promise made by the prosecutor as a result of plea negotiations is sufficient to invalidate a conviction.’ ” Szarwak v. Warden, 167 Conn. 10,19, 355 A.2d 49 (1974); see also Paradiso v. United States, 689 F.2d 28, 30 (2d Cir. 1982), cert. denied, 459 U.S. 1116, 103 S. Ct. 752, 74 L. Ed. 2d 970 (1983).

Where, as here, there is a dispute as to the terms of a plea agreement, our analysis turns on “the real intent of the parties, and most significantly, of [the defendant] . . . . ” Paradiso v. United States, supra, 31. The defendant argues that she reasonably believed that the plea agreement terminated all her criminal liability flowing from the accident. Despite the state’s silence as to what would happen if the victim died, its conduct strongly implied that it shared the defendant’s interpretation of the plea agreement.

The trial court found that the parties were aware of the victim’s precarious condition. While it is true that at the sentencing hearing the victim’s mother spoke of his eventual recovery, the state and the defendant had to be aware that this was by no means a certainty. Under the circumstances, it was incumbent upon the state to enunciate what was and was not covered by the agreement lest the defendant be allowed to go to plea under the impression that the criminal portion of this tragic episode was closed. If the state was reserving a right to reprosecute in the event of the victim’s death, it could have, and should have, said so. It did not even remotely imply that this was its intent.

We take particular note of the fact that, at the conclusion of the June, 1988 sentencing, the state moved to have certain evidence in the case destroyed. At oral argument, the state suggested that this evidence related to two additional criminal charges that were nolled as part of the plea agreement. We need not accept the state’s invitation to go outside the record and confirm this fact. The destruction of any evidence seized at a crime scene is consistent with a belief that no further charges will be brought and lends credence to the defendant’s claim that she reasonably believed her plea ended her criminal liability.

Furthermore, we think it significant that the parties agreed to a specific term of imprisonment. We question whether the defendant would have given her assent to a prison term if she thought that additional, more serious charges could be brought later. See State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985) (term of imprisonment is the defendant’s “bottom line”). It is a basic principle of law that common sense is not left at the courtroom door. See State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). It would be illogical to conclude that the defendant would have agreed to a three year term of imprisonment if she believed that it was perhaps only the first installment on a lengthier term to be imposed if Eric died.

The state also contends that even if we find that the plea agreement was breached, the breach was harmless because the defendant was allowed to withdraw her plea on the assault charge. We disagree. It is true that “fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea.” State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986). If the plea is withdrawn, however, that means that the defendant will plead anew to the original charges. Santobello v. New York, supra, 263 n.2. Under the facts of this case, we conclude that it would be unjust to the defendant for us to vacate her plea when she “has already been punished for the crime to which [she] confessed.” State v. Thomas, supra, 324. Accordingly, we hold that specific performance of the agreement is the only appropriate remedy because it is the only way that the status quo can be restored. Id.

In view of our disposition of the first claim, we do not reach the double jeopardy issue.

The judgment of conviction of manslaughter in the second degree with a motor vehicle is reversed and the case is remanded with direction to reinstate the defendant’s conviction of assault in the second degree with a motor vehicle.

In this opinion the other judges concurred.


text:
    State of Connecticut v. John Slater, Jr.
    (8258)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued June 12
    decision released September 11, 1990

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70. The defendant claims that (1) the rape shield statute, General Statutes § 54-86f, is unconstitutional, (2) the trial court should have admitted evidence of other complaints of sexual assault made by the victim, and (3) the state should not have been permitted to file a substitute information after the close of evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In July, 1988, the victim was at the home of an acquaintance when she met the defendant for the first time. The defendant agreed to drive the victim to her car, but, after about ten minutes of driving, the defendant’s car ran out of gas. The victim decided to continue on foot and asked the defendant for directions to Walnut Street. The defendant responded by offering to walk there with her.

The two walked for approximately thirty minutes. They proceeded through a parking lot and into a wooded area, the defendant having told the victim that he knew a short cut. At that point the defendant threw the victim to the ground and sexually assaulted her.

The victim escaped from the defendant and ran to a neighboring house. The police were summoned, and the victim showed the responding officers the location of the defendant’s car and where the assault took place. The victim subsequently identified the defendant as her assailant.

I

The defendant first claims that the rape shield law, General Statutes § 54-86f, violates the separation of powers provisions of the Connecticut constitution; see Conn. Const., arts. II, III § 1, and V § 1; because it is an encroachment by the legislative branch into the province of the judicial branch of government. The defendant thus proposes a new line of attack against the rape shield law, which has previously been found not to violate the confrontation clause of the United States constitution. The defendant did not raise this claim at trial, and now seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error rule. Practice Book § 4185.

The state argues that this unpreserved claim is not reviewable because, while the claim is of constitutional magnitude, the defendant does not assert that the alleged separation of powers violation deprived him of a fair trial. Rather, the defendant’s claim goes to the generalized right of one branch of the government to be free of interference from another branch.

The defendant clearly is not claiming an error by the trial judge deprived him of a fair trial, rather, he is claiming an error by the legislature, which calls into question the validity of the entire statute. “[Wjith but two exceptions, our Supreme Court has consistently refused to afford Evans review to challenges to the constitutionality of statutes, as opposed to challenges to actions of the trial court leading to a conviction.” State v. Banta, 15 Conn. App. 161,182, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). The two decisional exceptions for vagueness and overbreadth discussed and rejected by the Banta court, in State v. Williams, 205 Conn. 456, 469-74, 534 A.2d 230 (1987), and in State v. Schriver, 207 Conn. 456, 458-59, 542 A.2d 686 (1988), do not apply in this case, and the general rule enumerated by the Banta court controls our resolution here.

Consequently, because this claim is a challenge to the constitutionality of an action of the legislature and not a challenge to an action of a trial court, the defendant is not entitled to Evans-Golding review. It does not meet the third Golding condition that the alleged constitutional violation clearly deprived the defendant of a fair trial. State v. Golding, supra. Lest this decision be interpreted as surrounding unconstitutional statutes with an uncrossable moat of unreviewability, we hasten to point out that proper preservation of the claim was all that was required in order for the defendant to challenge the statute’s validity.

We also decline to review this constitutional claim as plain error under Practice Book § 4185. “ ‘The general rule against considering claims not raised at trial, Practice Book [§ 4185], applies also to constitutional issues.’ ” Roche v. Fairfield, 186 Conn. 490, 505, 442 A.2d 911 (1982). This case does not present one of the “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987).

II

The defendant next claims that the trial court should not have excluded, as irrelevant, the victim’s complaints of assault against two other men. One of these complaints was made prior to the complaint that is the subject of this case and the other complaint was made subsequent to the complaint in this case. The defendant claims that the evidence was admissible under subsection (4) of the rape shield statute as evidence “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” (Emphasis added.) General Statutes § 54-861 He argues that the exclusion prevented his effective cross-examination of the victim and thus violated his right of confrontation. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8.

This argument requires a threshold determination of the relevancy of the proffered evidence. If the evidence is not relevant, then it clearly could not qualify as admissible under subsection (4) of § 54-86f and could properly be excluded without violating the defendant’s right of confrontation. State v. Franko, 199 Conn. 481, 488, 508 A.2d 22 (1986).

The defendant must establish that the victim’s complaints against the other two men were false in order to show their relevance. “The relevant conduct was that between the defendant and the victim. Unless she had raised a false claim before, her conduct with another man had no bearing on her conduct with this defendant or on the credibility of her testimony in this case.” (Emphasis added.) State v. Cassidy, 3 Conn. App. 374, 382, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985); see also State v. Kelly, 208 Conn. 365, 377, 545 A.2d 1048 (1988). The defendant here has failed to establish that either of the victim’s other complaints was false. The man accused in her first complaint pleaded guilty, under the Alford doctrine, to sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), and the accused in the second complaint pleaded not guilty to sexual assault in the first degree, and his case was still pending at the time of this trial.

The defendant argues that there are many similarities between the other complaints and this case, and, therefore, the other complaints must be false. We disagree. The existence of any similarities in those complaints and this case does not, per se, amount to proof of falsehood. The trial court properly excluded the evidence of the other complaints as irrelevant.

The defendant presents an alternative argument in which he appears to claim that if relevant evidence was properly excluded under § 54-86f (4), he was unconstitutionally required to satisfy a stricter standard for the admission of evidence. His argument on this point consists of nothing more than a collection of conclusory statements and unexplained citations. He has thus utterly failed to convince us that this claim has any merit.

Ill

The defendant’s third claim arises out of the court’s allowing the state to file a second substitute information after the close of evidence but before the start of counsels’ arguments to the jury. The substitute information in effect during the evidentiary portion of the trial charged the defendant with compelling the victim to engage in sexual intercourse “by the use of force and the threat of use of force.” The second substitute information deleted the phrase “and the threat of use of force . . . .” The defendant did not object and now seeks review under the Evans bypass. State v. Evans, supra; see State v. Golding, supra. The short answer to this claim is that since the defense was that there had been no sexual encounter of any type, the amendment eliminating the phrase “and the threat of use of force” to compel sexual intercourse could not have prejudiced the defendant. See State v. Vaughn, 20 Conn. App. 386, 390, 567 A.2d 392 (1989).

The judgment is affirmed.

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).


text:
    Christopher C. Noble v. Beverly Miller Marshall
    (8705)
    O'Connell, Poti and Cretella, Js.
    Argued June 12
    decision released September 11, 1990

      Steven H. Meyer, with whom was Joseph B. Burns, for the appellant (defendant).

      David S. Gordon, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the judgment rendered following the court’s granting of the plaintiff’s motion to strike her counterclaim. The sole issue presented in this appeal is whether the facts as alleged, including a claimed violation of the Rules of Professional Conduct, give rise to a claim of violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The plaintiff brought the present action against the defendant for the nonpayment of attorney’s fees in connection with legal services rendered. The defendant filed a counterclaim alleging under CUTPA that the plaintiff was negligent in his legal representation of her interests, that his legal fee was unreasonable, and that, consequently, he had breached Rule 1.5 (a) of the Rules of Professional Conduct. The plaintiff moved to strike the counterclaim. The trial court granted the plaintiff’s motion, finding that the defendant’s counterclaim failed to state a claim upon which relief could be granted, in that it did not give rise to an action under CUTPA.

“A motion to strike challenges the legal sufficiency of a pleading.” Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 482, 523 A.2d 940 (1987). When reviewing the trial court’s granting of a motion to strike a counterclaim, we must construe the facts alleged in the counterclaim in a light most favorable to the pleader. Id. “This includes the facts necessarily implied and fairly provable under the allegations. . . . It does not include, however, the legal conclusions or opinions stated in the [counterclaim].” (Citations omitted.) Id.

General Statutes § 42-110b (a) provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The act further provides for a private cause of action for actual and punitive damages. General Statutes § 42-110g.

In determining whether a case falls within the scope of CUTPA’s general description of unfair or deceptive practices, our courts have adopted the “cigarette rule” set forth in FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972). McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn. App. 180, 186-87, 579 A.2d 578 (1990). Under that standard, three factors will be looked at to determine if an action or practice is unfair: “ ‘ “ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law statutue, or other established concept of fairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers . . . .’ ” FTC v. Sperry & Hutchinson Co., supra, 244 n.5.’ Mead v. Burns, 199 Conn. 651, 664-65, 509 A.2d 11 (1986).” Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 483, 525 A.2d 935 (1987).

It is clear that the provision of at least some legal services constitutes “the conduct of any trade or commerce,” and that CUTPA applies to the conduct of attorneys. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520-21, 461 A.2d 938 (1983). Thus, the question of whether that service is provided unfairly requires the application of the “cigarette rule” enumerated above.

It is the defendant’s position that, although it is necessary to satisfy only one of the three criteria of the “cigarette rule,” an unreasonable attorney’s fee meets all three criteria, in particular, the “public policy” and “substantial injury” tests. The crux of the defendant’s argument is her reliance upon the plaintiff’s alleged violation of Rule 1.5 (a) of the Rules of Professional Conduct to support her claimed violation of CUTPA. Unless she can establish that Rule 1.5 (a) gives rise to a CUTPA action, her counterclaim must fail.

In Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987), our Supreme Court was faced with a similar question of whether a violation of the Code of Professional Responsibility can be used as the sole basis for a cause of action. In that case, the plaintiff attempted to rely on DR 7-102 of the code to support his claim that the defendants wrongfully pursued an action against him in a separate case. Although the court in Mozzochi explored the option of concluding that the code cannot give rise to a private cause of action, it chose to carve a narrower rule of law and concluded that the plaintiff in that case could not bring the action because he was not the defendants’ client in the earlier action, and therefore was an unforeseeable third party beneficiary of the legal services rendered by those defendants.

The defendant in the present case asks us to distinguish Mozzochi. She asserts that that case cannot apply here because she was a direct client of the plaintiff and the narrow holding of Mozzochi applies only to nonclient third party beneficiaries of the attorney-client relationship. The plaintiff, on the other hand, asks that we broaden the holding of Mozzochi.

While we recognize the narrow structure of the holding in Mozzochi, we conclude that the Rules of Professional Conduct do not of themselves give rise to a cause of action, even to an attorney’s client. The rules that have been adopted by the judges of the Superior Court have the force of law; Mozzochi v. Beck, supra, 501 n. 7; but they were not intended to create a private cause of action under CUTPA.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 1.5 (a) of the Rules of Professional Conduct states: “A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      “(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; “(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; “(3) The fee customarily charged in the locality for similar legal services; “(4) The amount involved and the results obtained; “(5) The time limitations imposed by the client or by the circumstances; “(6) The nature and length of the professional relationship with the client; “(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and “(8) Whether the fee is fixed or contingent.”

       The “Code of Professional Responsibility” was redesignated “Rules of Professional Conduct” in 1986.

       In addition to the name redesignation, a preamble was included that states in part: “Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” Practice Book, Rules of Professional Conduct (1986) Preamble.


author: Lavery, J.

text:
    James Caserta v. Zoning Board of Appeals of the City of Milford et al.
    (8665)
    Foti, Lavery and Landau, Js.
    Argued June 5
    decision released September 18, 1990

      Bruce L. Levin, for the appellant (named defendant).

      Benson A. Snaider, for the appellee (plaintiff).
   Lavery, J.

This is an appeal brought by the defendant zoning board of appeals (board) from the judgment of the trial court sustaining the plaintiff’s appeal from the board. The board had upheld a zoning enforcement officer’s revocation of the plaintiff’s zoning permit. The board claims that the trial court’s judgment should be reversed because the trial court (1) did not utilize the proper standard of review, (2) did not recognize the existence of facts and reasons in the record supporting the board’s decision, (3) allowed the plaintiff to adduce additional evidence on appeal, (4) admitted certain evidence without any foundation, and (5) held that the assistant city planner was the acting zoning enforcement officer.

The following facts are pertinent. The plaintiff owns a twenty unit structure used as a seasonal hotel and rooming house in the city of Milford. The structure and its use as a seasonal hotel or rooming house predate the city’s zoning regulations, which were first adopted in 1930. The property is situated in a one-family residential zone.

On October 30, 1987, the plaintiff filed an application for a zoning permit to allow the alteration of the interior of the structure to reduce the number of units from twenty to twelve and to perform other renovations. The application was reviewed and approved the same day by Peter Crabtree, the assistant city planner. During the next two months, members of the city planning and zoning board became aware that the permit had been granted. After consulting the city attorney, they determined that the building did not comply with the zoning regulations and that the permit should be revoked. There is no evidence in the record that the planning and zoning board held a hearing or a formal vote on this matter. On December 24,1987, Crabtree, acting on orders from Angelo Marino, the planning and zoning board chairman, revoked the permit.

The plaintiff appealed the revocation of the permit to the zoning board of appeals, asserting that the permit had been “illegally and arbitrarily revoked.” Crab-tree appeared at a hearing on the appeal and testified that the plaintiffs plans to reduce the number of units in the hotel would actually reduce the extent to which the property did not conform to the neighborhood’s zoning. Crabtree stated that he believed the building was a preexisting, nonconforming use that the plaintiff was entitled to continue without a special permit, and that the permit was, accordingly, valid when he issued it and is still valid. He further testified that he revoked the permit only because he had been ordered to do so by Marino. The board denied the appeal and the plaintiff appealed to the trial court. The court, after hearing additional testimony concerning Crabtree’s authority to act as acting zoning enforcement officer, sustained the plaintiff’s appeal. The board appealed to this court. We affirm the judgment of the trial court.

The board first challenges the trial court’s conclusion regarding the scope of review employed by a zoning board of appeals in acting on an appeal from a (Jecision of a zoning enforcement officer. The board claims that it hears such appeals de novo, and is thus entitled to sustain the revocation if the record it creates reveals any reason for the permit’s denial or revocation.

The unusual factual posture of this case makes it unnecessary for us to decide the board’s scope of review. The revocation of the permit at the direction of the planning and zoning board was void, and, regardless of its scope of review, the board of appeals was powerless to affirm a void act.

In its regulations, the planning and zoning board charged the zoning enforcement officer with the responsibility and authority to enforce the regulations; Milford Zoning Regs. § 8.2; and the planning and zoning board did not retain any general veto power over the zoning enforcement officer’s decisions. Indeed, General Statutes § 8-7 vests the power to review decisions of the zoning enforcement officer in the zoning board of appeals, not the planning and zoning board. Courts in other jurisdictions, construing nearly identical enabling statutes, have held that “[wjhere there is a Board of Appeals, the [planning and zoning board] cannot by its own resolution revoke a permit previously granted by the [zoning enforcement officer].” 3 A. Rathkopf, Law of Planning and Zoning (1981 Sup.) c. 56, p. 17; Carpenter v. Kreuter, 258 App. Div. 808,15 N.Y.S.2d 1002 (1939), citing Matter of Carpenter v. Grab, 257 App. Div. 860, 12 N.Y.S.2d 906 (1939); In re Kalen, 248 App. Div. 777, 289 N.Y.S. 58 (1936); Lominick v. Aiken, 135 S.E.2d 305 (S.C. 1964). Marino’s order to revoke the permit, therefore, usurped the appellate jurisdiction vested by law in the zoning board of appeals, and was, accordingly, void. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458-59, 313 A.2d 44 (1972); State ex rel. Brodie v. Powers, 168 Conn. 512, 514, 362 A.2d 884 (1975).

The zoning enforcement officer is an agent of the planning and zoning board. T. Tondro, Connecticut Land Use Regulation (1979) p. 208. It is beyond dispute that Crabtree, in revoking the permit, carried out a decision of the planning and zoning board and was not acting at his own behest. In his letter to the plaintiff revoking the permit, Crabtree indicated that he had been “instructed by the Planning and Zoning Board Chairman to revoke the zoning permit.” He testified at the appeal hearing that he believed that the permit was valid, both when he issued it and at all subsequent times. Furthermore, Marino testified at the appeal hearing that he had ordered Crabtree to revoke the permit. Thus, the revocation must be seen as a void act of the planning and zoning board, effectuated by its agent, Crabtree. A zoning authority cannot delegate to its agent a power that it does not itself possess. 62 C.J.S. 315 n.94, Municipal Corporations § 154.

The board of appeals had before it Crabtree’s revocation letter, which revealed the illegal intervention of the planning and zoning board chairman. The board of appeals also heard the testimony of Crabtree and Marino to the effect that Marino ordered Crabtree to revoke the permit. It is basic jurisprudence that appellate tribunals lack the jurisdiction to decide the merits of a decision made by a lower authority without jurisdiction, and that jurisdictional matters must be addressed whether or not the parties have raised them in their pleadings. Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985); Laurel Park, Inc. v. Pac, 194 Conn. 677, 485 A.2d 1272 (1984); Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 598, 496 A.2d 201, aff'd, 202 Conn. 672, 522 A.2d 818 (1987). This is also true of appellate tribunals that hear the case de novo. Olmstead’s Appeal from Probate, 43 Conn. 110,115-16 (1875). The record and the uncontradicted testimony of the two zoning officials revealed a fatal jurisdictional flaw in the revocation. Thus, the jurisdictional issue was squarely before the board of appeals and should have been its first concern. Yale Literary Magazine v. Yale University, supra.

General Statutes § 8-7 prescribes the parameters of the board of appeals’ authority when it exercises its appellate jurisdiction, providing that the board of appeals “shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section.” If Crabtree had revoked the permit in the good faith belief that it had been erroneously issued, issued under false pretenses, or violated by subsequent acts of the applicant — in other words, if he had revoked the permit in the good faith discharge of his office — the board of appeals, hearing de novo an appeal from such a revocation, would wield that same authority to remake the decision “as in its opinion” it ought to have been made. General Statutes § 8-7. In the present case, however, the enforcement officer used the authority of his office for the invalid purpose of carrying into effect a void and illegal decision of the planning and zoning board; in other words, his action was outside the scope of his authority. The board of appeals is, therefore, without authority to affirm that action, for to do so would be tantamount to performing the unauthorized action anew. If the zoning enforcement officer was without authority to take a particular action, the board of appeals is likewise barred from taking the same action. Id. The board of appeals’ findings on the merits of the appeal, therefore, are irrelevant to the proper disposition of the appeal. Where the action appealed from is void, the board of appeals’ sole option is to vacate that action.

The board next claims that a search of the record would reveal that Crabtree’s only appointment was as assistant city planner, and that he was not authorized to act as zoning enforcement officer and was, therefore, without jurisdiction to issue the permit, which was, accordingly, void. We address this claim because it concerns Crabtree’s authority and not merely the merits of the revocation. It is true that we are obliged to search the record for reasons that support the board’s decision. Kaeser v. Conservation Commission, 20 Conn. App. 309, 311, 567 A.2d 383 (1989); see also Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990). Nonetheless, our search has produced no evidence supporting the board’s contention. There was no mention of Crabtree’s power to issue the permit in the revocation letter or in the minutes of the board’s public hearing or those of the business meeting held immediately thereafter. Nor is Crabtree’s alleged lack of authority given as a reason in the board’s letter to the plaintiff denying the appeal. The only mention of this issue in the record appears in the minutes of the business meeting at which the board voted to deny the plaintiff’s appeal. At that meeting, one member of the board presented his views on the plaintiff’s appeal and gave numerous reasons, including the question of Crabtree’s authority, why the appeal should be denied. There is, however, no indication whether a majority of the board subscribed specifically to the thesis that Crabtree could not act as zoning enforcement officer. “Evidence of the individual views of one member [of the zoning board of appeals] is not available to show the reasons actuating the board or the grounds of its decision. These can only be shown by a vote of the board. State v. Blake, 69 Conn. 64, 75, 36 A. 1019 [1897].” Thayer v. Board of Appeals, 114 Conn. 15, 20-21,157 A. 273 (1931). The record, therefore, does not support the board’s contention.

Even if we viewed the legal argument of a lone board member speaking at a closed meeting of the board as evidence supporting the board’s argument, the balance of the evidence on this issue overwhelmingly indicates that Crabtree validly issued the permit as a de facto officer. The board could not reasonably have concluded otherwise.

“Many years ago this court adopted a broad rule detailing the circumstances under which an officer not legally qualified will be found to be an officer de facto: ‘First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. . . .’ State v. Carroll, 38 Conn. 449, 471 [1871].” Furtney v. Zoning Commission, 159 Conn. 585, 595-96, 271 A.2d 319 (1970). “The de facto doctrine ... is based on policy and the necessity to protect the interests of the public and individuals involved in the official acts of persons exercising the duty of an officer ‘without actually being one in strict point of law.’ 63A Am. Jur. 2d, Public Officers and Employees § 578, p. 1080 (1984).” Murach v. Planning & Zoning Commission, 196 Conn. 192, 203, 491 A.2d 1058 (1985). The circumstances outlined below require that Crabtree be deemed a de facto officer. The trial court heard evidence that the official description of Crabtree’s position as assistant city planner provided that he would act as “acting zoning enforcement officer” when circumstances so required, that since 1970 he had issued thousands of zoning permits with the knowledge of the planning and zoning board, that for several years he had been the only person discharging the office of zoning enforcement officer as that office was either vacant or the incumbent disabled, that Crabtree, in the capacity of acting zoning enforcement officer, had brought suit on numerous occasions to enforce the city zoning regulations; see, e.g., Crabtree v. Coyle, 19 Conn. App. 208, 561 A.2d 455 (1989); and that in 1989 the planning and zoning board amended the zoning regulations explicitly to authorize the assistant city planner to act as zoning enforcement officer when needed. Further, we note that when the chairman of the planning and zoning board sought to intervene in the plaintiffs case, he ordered Crabtree to revoke the permit, an act within the authority of the zoning enforcement officer. Had the planning and zoning board viewed Crabtree as an unauthorized interloper, the chairman would undoubtedly have turned to a bona fide zoning enforcement officer, not to Crab-tree, to revoke the permit.

The planning and zoning board is charged with enforcing the zoning regulations in any manner that it deems fit. General Statutes § 8-3. In this case, clearly, it chose to leave the enforcement of the zoning regulations in the hands of a de facto officer. We, therefore, will not accept the board of appeal’s argument that Crabtree was without power to issue the permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       We will examine one of the reasons on the merits given by the board because it suggests a jurisdictional flaw in the granting of the permit. Such a flaw would have been the only valid reason, under the circumstances of this case, for the board to refuse to reinstate the permit. The reason, as it appears in the board’s letter to the plaintiff, was that “the permit was improperly issued.” This reason is too vague to be a basis for the board’s decision. Although “the reasons given by a zoning authority, presumably composed of lay persons, to justify its action need not be in a form to satisfy the meticulous criterion of a legal expert[;] DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653 (1955)”; Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 68, 549 A.2d 1076 (1988); a reason that is so conclusory as to give no hint of a more concrete basis underlying the board’s decision must be deemed inadequate.
      It is possible, however, that the impropriety to which the board referred concerned Crabtree’s authority to issue the permit. This issue is addressed in the text, infra.

       The board challenges the trial court’s taking additional evidence on this issue, arguing that the plaintiff had ample opportunity to present the evidence to the board but did not. General Statutes § 8-8 provides for the reception of additional evidence where “it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.” The offer of additional evidence at trial “ ‘called for a determination, in the exercise of the court’s legal discretion, as to whether that evidence was necessary for the equitable disposition of the appeal. General Statutes § 8-8; Nielson v. Zoning Commission, 149 Conn. 410, 413, 180 A.2d 754 [1962], Under § 8-8, the evidence was not admissible unless it was essential for the equitable disposition of the appeal. Tarasovic v. Zoning Commission, 147 Conn. 65, 70,157 A.2d 103 [1959].’ Young v. Town Planning & Zoning Commission, 151 Conn. 235, 241, 196 A.2d 427 [1963].” Troiano v. Zoning Commission, 155 Conn. 265, 268-69, 231 A.2d 536 (1967).

        In this case, the question of Crabtree’s authority to act as zoning enforcement officer did not arise until after the public hearing, when the board was sitting in executive session. Although Crabtree was asked at the hearing “why he felt it was in his realm to grant this permit,” Crabtree's answer dealt solely with the merits of the permit. His answer apparently satisfied his questioner, as no follow-up question to clarify the inquiry was forthcoming. Our review of the record indicates no other appearance of this issue prior to the executive session.
      Crabtree’s authority to act as zoning enforcement officer presented a question of fact; see Stelco Industries, Inc. v. Bette, 2 Conn. App. 17, 23-24, 475 A.2d 1105 (1984); the presentation of this issue to the board by the board member included evidence that Crabtree was not the zoning enforcement officer. The board, however, “could not properly consider evidence submitted after the public hearing without providing the necessary safeguards guaranteed to the applicants and the public. This means a fair opportunity to . . . offer evidence in explanation or rebuttal. Waddeu v. Board of Zoning Appeals, 136 Conn. 1, 9, 68 A.2d 152 [1942].” Wasicki v. Zoning Board, 163 Conn. 166,172-73, 302 A.2d 276 (1972). Here, the proper procedure would have been for the board to recall the parties to present argument on the issue. We conclude that the trial court did not abuse its discretion in admitting the evidence of Crabtree’s acting as zoning enforcement officer. In the absence of this evidence, the court, through no fault of the plaintiff’s, would have had far less than the complete picture of an issue raised by the board after the plaintiff’s opportunity to rebut had passed.

       The board claims that the trial court admitted a copy of this job description into evidence without adequate foundation. This claim is without merit. Not only was trial counsel's foundation objection entirely conclusory and thus insufficient to support the objection, the custodian of the record later testified to authenticate the document. Any error in admitting the document prior to this authentication, therefore, was harmless.


text:
    State of Connecticut v. Lonnie Black
    (7725)
    Lavery, Cretella and Landau, Js.

      Argued June 13
    decision released September 18, 1990

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

      Geoffrey E. Marion, assistant state’s attorney, with whom, on the brief, was JohnM. Bailey, state’s attorney, and Lawrence J. Daly, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction of one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and one count of risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court (1) should have disclosed to him certain notes taken by the state’s attorney during an interview with the victim, and (2) should have allowed the defendant to present the testimony of the victim’s former attorney regarding an alleged prior inconsistent statement. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. The victim, who is the defendant’s biological son, was born out of wedlock in 1974. During his infancy and early childhood, he lived with various relatives, never with any one relative for more than a few years. In October, 1983, the victim began visiting the defendant and his girl friend on weekends on a regular basis. A few weeks after these visits began, the defendant initiated sexual contact with the victim that, within a short time, included anal intercourse. These incidents of abuse occurred on a weekly basis for approximately three years. During that time, the defendant’s girl friend, Justina Mendes, became involved, watching and commenting on the defendant and the victim and engaging in sexual intercourse with the defendant while the victim watched.

In May, 1986, the defendant stopped exercising his visitation rights and the victim’s weekend visits to the defendant’s apartment stopped. Angry and hurt over the defendant’s refusal to see him, the victim told his mother about the sexual abuse. After an extended course of counseling and psychological therapy, the victim gave a statement to the Hartford police, who arrested the defendant and Mendes.

The defendant first claims that the trial court should have ordered the state to produce certain notes taken by the assistant state’s attorney during an interview with the victim. He argues that the notes came within the definition of “statements” contained in Practice Book § 749, and that he was entitled to disclosure of the notes pursuant to Practice Book § 752. We disagree.

Practice Book § 752 provides that “[ajfter a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in possession of the state . . . which statement relates to the subject matter about which the witness has testified.” The pertinent portion of § 749 defines a “statement” as “a written statement made by a person and signed or otherwise adopted or approved by him.” The first, essential, determination to be made by the trial court is whether the evidence constituted a “statement.” State v. Monteeth, 208 Conn. 202, 216, 544 A.2d 1199 (1988). In making this determination, the trial court exercises broad discretion; United States v. Allen, 798 F.2d 985, 994 (7th Cir. 1986); United States v. Pepe, 747 F.2d 632, 657 (11th Cir. 1984); and its findings will be disturbed only if they are clearly erroneous. United States v. Pepe, supra.

The trial court examined the notes in camera and questioned the victim as to the way in which the notes were taken. The judge handed the notes to the victim and the following colloquy ensued:

“The Court: Have you had a chance to see those pages?
“The Witness: Yes.
“The Court: Have you ever seen them before?
“The Witness: No.
“The Court: Did [the state’s attorney] ever hand them to you to read?
“The Witness: No.
“The Court: Did he ever read you those three pages, to your knowledge?
“The Witness: I don’t think so. No.
“The Court: And is your signature anywhere on them?
“The Witness: No.”
Thereafter, defense counsel questioned the victim as follows:
“Q. After [the state’s attorney] took the notes did he go back and say, ‘Is this the way it is,’ those notes, and ask you if this is substantially correct?
“A. Yes.
“Q. And you said ‘yes?’
“A. Yes.
“Q. And you said — basically told him his notes were accurate and portrayed what happened?
“A. Yes.”

The trial court concluded that the notes did not constitute a statement within the meaning of § 749 because the witness did not sign or otherwise adopt or approve the notes. The voir dire supports this conclusion. The witness testified that he did not sign the notes, that the assistant state’s attorney never read them to him, and that he had never read or even seen them before. Although he also testified that the assistant state’s attorney asked whether the notes were substantially correct, the witness’ affirmative answer to this question is insufficient to show adoption or approval of the notes as a statement of the witness. A general affirmation by a witness that the interviewer’s notes capture the basic gist of their conversation, in the absence of a showing that the witness read or was read what the interviewer has written, does not constitute adoption or approval of the notes. See Goldberg v. United States, 425 U.S. 94, 110-11 n.19, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976) (construing the nearly identical provisions of the Jencks Act, 18 U.S.C. § 3500).

The defendant’s second claim is that the trial court should have allowed Louis Keifer, the attorney who represented the victim in an earlier Probate Court action, to testify as to an alleged prior inconsistent statement concerning when Mendes began to participate in the .sexual abuse. At trial, the victim testified that Mendes started to participate approximately one year after the abuse first began. Keifer was prepared to testify that in the probate hearing, the victim testified that Mendes joined the abuse only six weeks after it began. The trial court refused to allow Keifer to testify.

To be admissible, proof that the witness made a prior statement inconsistent with his trial testimony must show a substantial inconsistency and must relate to a material issue rather than a collateral matter. State v. Avis, 209 Conn. 290, 302, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097,109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). With regard to the defendant’s prosecution, the timing of Mendes’ intervention into the abuse was irrelevant to the question of whether the defendant was guilty of sexual assault. The information in the defendant’s prosecution alleged a three year period during which the assaults occurred. Moreover, the defendant’s sole defense was to claim that the sexual assaults and abuse did not occur, not to challenge the time frame alleged in the complaint. See State v. Mancinone, 15 Conn. App. 251, 255-59, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017,109 S. Ct. 1132,103 L. Ed. 2d 194 (1989). It was of no moment in the defendant’s prosecution, therefore, whether Mendes participated in the abuse over a period of two years or almost three years. See State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990); State v. Cates, 202 Conn. 615, 626, 522 A.2d 788 (1987). The subject of Keifer’s proffered testimony, therefore, concerned a collateral matter and it was well within the trial court’s discretion to exclude his testimony. State v. Avis, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       Another definition in Practice Book § 749 concerns verbatim recordings made contemporaneously with the making of the statement. The notes in question were not a transcription of such a recording and therefore do not fall within this section.

       The cited footnote reads in full: “Every witness interview will, of course, involve conversation between the lawyer and the witness, and the lawyer will necessarily inquire of the witness to be certain that he has correctly understood what the witness has said. Such discussions of the general substance of what the witness has said do not constitute adoption or approval of the lawyer’s notes within [18 U.S.C.] § 3500 (e) (1), which is satisfied only when the witness has ‘signed or otherwise adopted or approved’ what the lawyer has written. This requirement clearly is not met when the lawyer does not read back, or the witness does not read, what the lawyer has written.” United States v. Goldberg, 425 U.S. 94,110-11 n.19, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976).

       Another proffered inconsistency concerned whether the victim had ever told anyone that Mendes began to participate six weeks after the abuse began. He testified at trial that he had not. The defendant proposed to use Keifer’s testimony to contradict that answer.