author: Jacobson, J.

text:
    Christopher D. Ozmun v. J. William Burns, Commissioner of Transportation, et al.
    (7469)
    Borden, Spallone and Jacobson, Js.
    Argued May 3
    decision released June 5, 1989

      Douglas G. Farber, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom was Robert M. Derosier and, on the brief, Richard A. Ferris, for the appellee (named defendant).
   Jacobson, J.

The plaintiff appeals from a partial judgment rendered on behalf of the named defendant, after the trial court granted his motion to dismiss. The plaintiff claims that the court erred (1) in concluding that the notice given to the defendant was insufficient to satisfy the requirements of General Statutes § 13a-144, and (2) in not allowing the jury to decide whether the notice was sufficient under the statute. We find no error.

The record discloses the following facts. On July 26, 1985, the plaintiff was riding a bicycle on Route 10 in Simsbury; the bicycle struck a hole in the roadway, the plaintiff was thrown from the bicycle, and was injured. Pursuant to General Statutes § 13a-144, on October 3, 1985, the plaintiff gave written notice of the occurrence to the defendant, describing the nature of his injuries, and the time, date and location of the accident. This appeal is addressed to the sufficiency of the description of the accident’s location.

The notice sent to the defendant stated that the accident occurred as a result of a defect in the highway “in the vicinity of the Ensign Bickford Company between the traffic lights. The defect consisted of a hole approximately 206 inches south of a telephone pole at the Ensign Bickford visitors’ parking sign and approximately ten feet west of the easterly curb and approximately 200 inches north of a manhole cover in the highway and located in the travelled portion of the northbound lane of the highway.” The notice further stated that “photographs of the location and of the injured portions of his body” were available for the defendant to inspect.

The plaintiff amended his complaint in July, 1988, changing the description of the accident location. The defendant moved to dismiss, claiming that the notice failed to comply with the statutory requirements. The trial court granted the motion, and the plaintiff filed this appeal. The plaintiff concedes that the description in the notice was erroneous.

The plaintiffs first claim is that the trial court erred in determining that the notice was insufficient under the statute. He argues that the statute requires only that the notice give a general description of the location of the accident, which he claims was given the defendant, and that making the photographs available to the defendant for inspection contributed to making the notice sufficient. We disagree.

“General Statutes § 13a-144 created a cause of action ‘wholly unauthorized by the common law:’ Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958). ‘In view of the fact that Section [13a-144] is in derogation of the common law and that during its successive reenactments a savings clause has not been inserted, the statute must be strictly construed.’ Wright & Fitzgerald, Conn. Law of Torts (2d Ed.) § 95, p. 244; cf. General Statutes § 13a-149 (notice savings clause in municipal highway liability statute). ‘The giving of the statutory written notice of injury is a condition precedent to the cause of action, whether the action is against the state or any subdivision thereof.’ Wethersfield v. National Fire Ins. Co., supra.” Zotta v. Burns, 8 Conn. App. 169, 173, 511 A.2d 373 (1986).

Whether the notice fails to meet the requirements of the statute must be determined by examining the purpose of the notice. “ ‘The obvious purpose of the requirement is that officers of municipal corporations, against which suits for injuries are about to be instituted, shall have such precise information as to time and place as will enable them to inquire into the facts of the case intelligently.’ Shaw v. Waterbury, 46 Conn. 263, 266 [1878].” Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952).

We hold that the notice given to the defendant failed to satisfy the statutory notice requirement. The description of the location of the accident was so faulty that it is clear that the defendant would not have been able to ascertain readily the location of the hole and make an intelligent inquiry into the details of the accident. We also agree with the defendant that the mere availability of photographs did not provide further written notice as required by the statute.

The plaintiff’s second claim is that the court erred in deciding whether the notice was adequate as a matter of law, when the jury should have determined that issue. We disagree.

“Ordinarily, the question of the adequacy of notice ‘is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.’ Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice ‘patently meets or fails to meet’; id.; the statutory requirements.” Zotta v. Burns, supra, 173.

We hold that the trial court did not err in withholding the question of adequacy of the notice from the jury. The directions forwarded to the defendant were not merely inadequate but actually useless to the defendant, for they described, with specificity, a location in the highway where the accident did not occur. Under the circumstances of this case, it was not error for the trial court to decide that the statutory notice was so insufficient that the court could hold, as a matter of law, that the notice was invalid under the statute.

There is no error.

In this opinion the other judges concurred.

       The partial judgment did not pertain to the defendant town of Sims-bury. In this opinion “the defendant” refers to the named defendant.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No 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.”

       The description of the location was amended to read: “In the vicinity of the Ensign Bickford Company, between the traffic lights at a point approximately 206 inches north of a telephone pole at the Ensign Bickford visitors’ parking sign, approximately ten feet east of the westerly curb and approximately 200 inches south of a manhold cover in the highway and in the travelled portion of the southbound lane . . . .” (Emphasis added.)


source: Caselaw Access Project

license: Public Domain

text:
    Mayfair Roofing and Renovating Company v. Ramco Technologies, Inc.
    (7052)
    Borden, Daly and Jacobson, Js.
    Submitted on briefs February 28
    decision released June 5, 1989

      Karen D. Oestreicher filed a brief for the appellant (defendant-third party plaintiff).

      Jane I. Milas filed a brief for the appellee (third party defendant).
   Jacobson, J.

The defendant-third party plaintiff Rameo Technologies, Inc. (Rameo), appeals from a judgment rendered for the plaintiff Mayfair Roofing and Renovating Company (Mayfair) on the plaintiffs original complaint, and for the third party defendant, the R. A. Civitello Company (Civitello), on Ramco’s amended third party complaint. Rameo claims that the trial court erred in rendering judgment in accordance with the factfinder’s findings of fact. It argues that the court erred (1) in concluding that Civitello, the general contractor, was not obligated to pay the subcontractor Rameo for work performed by Ramco’s sub-subcontractor, Mayfair, pursuant to a subcontract between Rameo and Civitello, and (2) in adopting factual findings that were clearly erroneous in view of the evidence and pleadings in the record. We find no error.

Certain facts are undisputed. The owners of a building in New Haven hired Civitello as general contractor to restore the building. By written agreement, Civitello engaged Rameo as subcontractor to perform cleaning and masonry work on the restoration project. Rameo thereafter engaged Mayfair as a sub-subcontractor, by written agreements, to perform the masonry work Rameo had promised to perform under the Civitello subcontract, leaving Rameo only the cleaning work to perform.

Rameo and Mayfair performed the work during the summer and early autumn of 1985. Mayfair sued Rameo to collect the balance of $6370 it alleged Rameo failed to pay under their agreement. Rameo impleaded Civitello, seeking to recover a balance of $8505 it claimed Civitello owed it under their contract.

The case was referred to a factfinder, who found the following relevant facts. Although Rameo and Mayfair completed their work, the owners found some of the work unacceptable and refused to pay Civitello for the work deemed insufficient. The primary reason the owners found the work unacceptable was that a discoloration, or efflorescence, remained in the brick work of one of the building’s chimneys after Rameo had completed its cleaning work. Rameo’s general manager considered the masonry work performed by Mayfair to be acceptable to Rameo. He also claimed that the discoloration was caused by faulty construction of the chimney, the top of which had been rebuilt before the contracts involved in this action had been signed. Therefore, he claimed, his company was not at fault for the discoloration.

■ The factfinder concluded that Rameo was obligated to pay Mayfair the amount claimed due, as provided for in the contract, because of a provision in their agreement that stated that if Rameo was not paid for any reason that was not the fault of Mayfair, then Mayfair would be paid. The factfinder also concluded that Civitello was not liable to pay Rameo for the amount claimed due because Rameo had not completely performed the cleaning it was obligated to perform under the contract. The factfinder found that “cleaning is defined in [the contract between Rameo and Civitello] . . . . It includes removal of stains and discolorations other than simple surface dirt. From the testimony and exhibits of Civitello, it is obvious that discoloration had not been removed .... Therefore, the work contracted for has not been completed .... Pursuant to paragraph 5 of the conditions set forth in the contract between Rameo and Civitello, Civitello has withheld payment from Rameo .... Therefore, the factfinder finds that . . . Civitello is not obligated to pay any monies to Rameo. Whether or not the prior condition of the chimney is the cause of the efflorescence is irrelevant. Rameo agreed to remove any discolorations contained in the masonry. There were no conditions attached.” (Footnote added; emphasis in original.)

Rameo timely filed an objection to the acceptance of the findings of fact. The trial court thereafter rendered judgment in accordance with the findings of fact. This appeal ensued.

Rameo’s first claim is that the trial court erred in accepting the factfinder’s conclusion that paragraph five of the subcontract between Civitello and Rameo excused Civitello from its obligation to pay Rameo for Mayfair’s acceptable work. It argues that this conclusion was unsupported by the record and based upon insufficient evidence, because the factfinder did not refer to the contract between the owners and Civitello, which was not admitted into evidence. We do not agree.

The function of this court is to determine whether the trial court’s findings are clearly erroneous. Practice Book § 4061; Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987), quoting Pandolphe’s Auto Parts, Inc. v. Man- Chester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). When the facts underlying the court’s decision are challenged, we must determine whether those facts are supported by the evidence and pleadings in the whole record. Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

After examining all the evidence and pleadings in the record, we conclude that the factfinder had sufficient evidence to conclude that Civitello did not have to pay Rameo. He had before him evidence that Rameo’s performance promised to Civitello, the cleaning and masonry work, had not been completed. One of the provisions in their agreement indicated that Rameo would be bound to the owners in the same manner as Civitello was bound to the owner, including the terms and manner of payments. The masonry and cleaning work was to be done in accordance with the plans and specifications prepared by the owners’ architects, copies of which were provided to Rameo and Mayfair and made part of their contracts. Those specifications provided further evidence as to how Civitello was bound to the owners, and the definition of cleaning in the specifications was relied upon by the factfinder to find that Rameo had not fully performed under its subcontract with Civitello. “A party cannot recover on a contract unless he has fully performed his obligations under it, has tendered performance, or has some legal excuse for not performing.” Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 328 A.2d 711 (1973).

Rameo suggests that it should be paid for the work Mayfair performed acceptably. The factfinder did not determine that Mayfair’s part of the work that Rameo was obligated to perform for Civitello was acceptable to Civitello or to the owners; he found only that Mayfair’s work was acceptable to Rameo. The factual con-elusion of the factfinder that Civitello was justified in not paying Rameo was supported by the evidence. The judgment of the trial court in accordance with this particular fact was, therefore, not clearly erroneous.

Rameo furthers its attack on the finding that Civitello was justified in witholding payment to Rameo by arguing that paragraph five in their contract is a “pay when paid” clause, and cites cases from other jurisdictions in which enforcement of such a clause was relaxed by the court. We have reviewed the cases and find many of them concerned clauses with different language, and most, if not all, involved factual circumstances different from this case. Further, the courts decided those cases upon the premise that the parties’ intentions were the controlling factor. See, e.g., Thos. J. Dyer Co. v. Bishop International Engineering Co., 303 F.2d 655 (6th Cir. 1962). “Our Supreme Court has repeatedly held that ‘what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.’ Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 78, 480 A.2d 499 (1984); Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983).” Eastern Bus Lines, Inc. v. Board of Education, 7 Conn. App. 581, 584, 509 A.2d 1071 (1986). We have already articulated why the factfinder could reasonably have interpreted the evidence to find that Civitello did not have to pay Rameo for the work Rameo had failed to complete. There is no merit to the claim that the court misapplied the law to the facts found by the factfinder.

Rameo’s final claim of error is that three of the express findings made by the factfinder are clearly erroneous in light of the evidence before the court. Our review of the evidence has persuaded us that the challenged findings were not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 546D allows trial courts to refer certain contract actions with an amount in demand less than $15,000 to factfinders.

       Paragraph five provides: “You, the sub-contractor are bound to the General Contractor in the same manner and in the same extent (insofar as applicable to the work performed by you or your agents) as the Contractor is bound to the Owners, including the schedule of, and manner of payments.”

       Practice Book § 546J provides in relevant part: “After review of the finding of facts and hearing on any objections thereto, the court may take the following actions: (1) render judgment in accordance with the findings of facts; (2) reject the finding of facts and remand the case to the fact-finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact-finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact-finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the court may deem appropriate.
      “The court may correct a finding of facts at any time before accepting it, upon the written stipulation of the parties.”

       For the first time in this case, Rameo argues on appeal that the trial court erred as a matter of law because contractors are not responsible for achieving impossible results when performing according to detailed specifications. Rameo claims that it cleaned the chimney on four occasions only to see the discoloration return and that the law does not require it to achieve an impossible result. The evidence before the factfinder, however, pursuaded him that Rameo had not fully performed its promised obligations as expressed in its contract with Civitello. The legal doctrine of impossibility was not part of this case as pleaded, tried and decided. We decide this case on the theory on which it was tried and decided in the trial court. Sink v. Meadow Wood Country Estates, Inc., 18 Conn. App. 569, 574 n.2, 559 A.2d 725 (1989). We therefore decline to consider that claim.


author: O’Connell, J.

text:
    Town of West Hartford et al. v. Rita Ann Gelinas
    (6631)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 11
    decision released June 27, 1989

      Edward H. Freeman, for the appellant (defendant).

      Elizabeth Dee Bailey, assistant corporation counsel, for the appellees (plaintiffs).
   O’Connell, J.

The defendant appeals from an order enjoining her from using a garage on her property as a dwelling. The plaintiffs are the town of West Hartford, its building inspector and its zoning compliance officer. The latter two plaintiffs are officials charged with enforcement of the town’s zoning ordinances.

The defendant claims that the trial court erred (1) in concluding that the plaintiffs could not be estopped from enforcing the town zoning ordinances against the defendant, and (2) in allowing the plaintiffs to enforce the zoning regulations despite its inability to produce the original certificate of occupancy for the property in question. We find no error.

The following facts are dispositive of this appeal. The defendant has owned a parcel of land on Park Road in West Hartford since 1965. There are two buildings on the property, a three-family dwelling and a smaller structure which is the subject of this action. A building permit shows that the smaller building was erected as a garage in 1925. Sometime between 1925 and 1961, a prior owner altered the building so that it could be used as a small one-family residence. No building permit was issued for the alterations that included installation of residential electric service, heat, toilet and bath facilities, nor was a certificate of occupancy ever issued.

In August, 1966, the plaintiff building inspector notified the defendant in writing that the conversion of the garage to a dwelling without a building permit and subsequent certificate of occupancy violated the town’s zoning ordinance and ordered it vacated. In compliance with this notice the building was vacated, but shortly thereafter the defendant resumed renting it. The town did not pursue the continued violation at that time.

In November, 1986, the town’s housing department received a complaint from the building’s tenant. In response to this complaint the plaintiff zoning compliance officer again verified that the conversion to a dwelling was unlawful and again a cease and desist order was issued. The defendant failed to obey the order and the plaintiffs brought this action seeking to enjoin the defendant from maintaining the building as a dwelling unit in violation of the town’s zoning ordinances. The plaintiffs prevailed and the defendant appealed to the court from the resulting injunction.

At all times material to this case, the West Hartford zoning ordinances have prohibited the use of a garage for any purpose other than vehicle storage, have required a building permit to convert a garage to a dwelling and have required a certificate of occupancy prior to use of a structure as a residence.

The defendant argues that the plaintiffs’ long delay in acting on this matter has estopped them from enforcing the applicable zoning regulations.

The general rule is that estoppel may not be invoked when a government is functioning in its governmental capacity. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 146, 527 A.2d 679 (1987); Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982). That rule, however, is not without its limitations. A municipality may be equitably estopped from enforcing its zoning laws (1) when a violation has been unjustifiably induced by its agents who have authority in such matters, (2) when special circumstances make it highly inequitable or oppressive to enforce them, and (3) when great caution has been exercised. Carofano v. Bridgeport, 196 Conn. 623, 646, 495 A.2d 1011 (1985); Zoning Commission v. Lescynski, supra, 732.

In order to prevail in her estoppel defense, the defendant must show that the town, acting through an agent who possessed authority in the matter, induced her to commit the violation. Zoning Commission v. Lescynski, supra, 731-32. The record shows no evidence that any agent of the town, whose duty it was to enforce the zoning regulations, induced the defendant to convert the building from a garage to a dwelling. The only inspection performed by the local zoning officials was conducted during the course of the trial and, therefore, was obviously not an inducement to converting it to a residence or continuing its occupancy as such.

The defendant confuses knowledge of the violation by town officials with inducement by town officials to create the violation. The trial court found that town officials responsible for enforcing the zoning ordinance had known of the violation for a long time. The 1966 notification from the plaintiff building inspector documents that finding. Furthermore, the plaintiff building inspector had been aware of the use of the building as a residence since he was a child, and over the years has observed its continued use as a dwelling. Those facts, however, support only a conclusion that the town officers were inattentive and careless in the enforcement of the zoning ordinances. What may be described as the personal approval of town officials “cannot be deemed to have been officially authorized by the municipality.” Id., 733.

If the plaintiffs were not a municipality and its officers, their laxity in enforcement of a known violation might give rise to a defense of laches. Laches, however, may not be invoked against a local zoning authority. West Hartford v. Reehel, 190 Conn. 114, 120, 459 A.2d 1015 (1983); Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969); see 3 C. Rathkopf, Law of Zoning and Planning (4th Ed. 1982) § 45.05[2].

The defendant argues that fire, police and sanitation employees had inspected the premises from time to time over the twenty-seven years, but failed to refer to those inspections in the statement of facts or argument portion of her brief together with references to the transcript pages upon which she relies to support that contention. Accordingly, Practice Book § 4065 (c) and (d) bar the defendant from relying on her claim of estop-pel based on those inspections. Commissioner v. Youth Challenge of Greater Hartford, Inc., 206 Conn. 316, 322, 537 A.2d 480 (1988); Taylor v. American Thread Co., 200 Conn. 108, 112, 509 A.2d 512 (1986). Moreover, we will not exercise our discretion to search the transcript for this evidence because even if it existed it would be of no value to the defendant. She cites no authority for her proposition that municipal agents other than those authorized to enforce zoning regulations can induce a party to violate a zoning regulation so as to form a basis for estoppel of the zoning authorities.

In view of the defendant’s failure to satisfy the first prong required for municipal estoppel, we will not proceed with an analysis of the two remaining prongs.

In the defendant’s second claim of error, she argues that the plaintiffs must be denied enforcement of the town’s zoning ordinance because they are unable to produce the original certificate of occupancy for the property including a certificate of occupancy for the three-family dwelling. Even if we were to assume that this claim is relevant to the appeal, we decline to consider it because it was not raised at trial. See Practice Book §§ 4185 and 285A; Swerdloff v. AEG Design/Build, Inc., 209 Conn. 185, 188-90, 550 A.2d 306 (1988).

The record clearly shows a violation of the West Hartford zoning ordinance and there is no basis in law for estopping the plaintiffs from enforcing that ordinance. The decision of the trial court is amply supported by the record and is legally correct.

There is no error.

In this opinion the other judges concurred.

       The defendant did not appeal from a judgment for the plaintiffs on her counterclaim in which she sought (1) an order restraining the plaintiffs from continuing to harass her, (2) a decree declaring the property at issue a legal nonconforming use, (3) monetary damages as compensation for her injuries and losses, due to the plaintiffs harassment, and (4) punitive and exemplary damages.

       Practice Book § 4065 (c) provides in pertinent part: “An appellant may not rely on any fact unless it is set forth in the statement of facts required by this subsection or is incorporated into the brief in accordance with subsection (d) hereof.”
      Subsection (d) provides that the appellant’s brief shall contain the argument “with appropriate references to the statement of facts or to the page or pages of the record or transcript.”

       Practice Book § 4185 provides that we are “not bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial.”

       Practice Book § 285A provides that “[i]f a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.”


author: Foti, J.

text:
    State of Connecticut v. John H. Gagnon
    (6435)
    Dupont, C. J., Norcott and Foti, Js.
    Argued January 11
    decision released June 27, 1989

      Richard Emanuel, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom were Walter D. Flanagan, state’s attorney, and, on the brief, Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment

of conviction, after a jury trial, of criminal impersonation in violation of General Statutes § 53a-130 and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A). The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal on the charge of sexual assault in the third degree, (2) in denying his motion to suppress evidence of two out-of-court identifications, (3) in denying his motion to suppress certain evidence seized from the defendant’s home pursuant to a search warrant, (4) in admitting certain items into evidence, (5) in admitting certain police identification testimony, and (6) in refusing to poll the jury concerning media coverage of the trial. We find no error.

The jury could reasonably have found the following facts. On the afternoon of March 2, 1987, at approximately 4:15 p.m., the complainant was operating her car in Brookfield. The car had a temporary license plate, which had expired two months earlier, affixed to the rear window. While proceeding on Federal Road, she looked in her rear view mirror and observed a car with a flashing red light behind her. Believing it to be an unmarked police car, she drove to the side of the road and remained in her car. Looking through the rear and side view mirrors, she observed a dark blue car with an antenna on the right side, a red flashing light on the left side of the roof, and a “star-like” emblem or ornament on the front of the hood above the grill. She also observed the male operator of the car exit the vehicle and walk up to the driver’s side window of her vehicle. The complainant had a clear view of him as he approached her vehicle. According to the complainant’s description, the man was tall, walked with a limp, was of average build, and had a mustache, dirty blond hair and a red mark over his right eye. He wore dark blue pants, black shoes, a belt with a silver buckle, and had a shiny silver badge affixed to his left shirt pocket. When the defendant reached the car, he introduced himself as Officer Taylor and informed the complainant that she was driving a car with an unregistered license plate, but that he would “forget about the whole thing” if she went to bed with him. He then reached into the complainant’s car and grabbed her breasts tightly with both hands so that she was pinned to the seat. The victim put her car into gear and sped off, leaving the man standing there mouthing words that she could not hear. The entire incident lasted approximately thirty seconds. As a result of the assault, the victim sustained “finger bruises” or “fingerprints” on her breasts that lasted for three weeks to a month and caused her pain and discomfort.

That evening, at approximately 7:30 p.m., the victim reported the incident to the Brookfield police. She gave the police an oral description of her assailant which was transcribed into a two page statement. The police also prepared a sketch of the badge worn by her assailant. The following day the victim returned to the Brookfield police department, and a composite sketch of her attacker was drawn from her description.

The victim made three out-of-court identifications and one in-court identification of the defendant. Other facts relevant to the issues in this appeal will be discussed below.

I

The defendant’s first claim is that the trial court erred in denying his motion for judgment of acquittal. The defendant argues that the state failed to establish beyond a reasonable doubt the elements of sexual assault in the third degree as required by General Statutes § 53a-72a (a) (1) (A). In particular, the defendant relies on State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987), and claims that the state failed to prove that he used “force” to compel the sexual contact. The state maintains that this case is distinguishable from Hufford. We agree with the state.

Although State v. Hufford, supra, presents a similar factual scenario, the pertinent facts of this case are distinct. In Hufford, the victim was sexually assaulted by an ambulance technician while en route to the hospital. After the defendant and another technician had restrained her on a stretcher so that she was unable to move her limbs, she was placed in the rear of the ambulance alone with the defendant. The defendant unbuttoned her blouse and unzipped her pants and sexually assaulted her. The defendant was charged and convicted of sexual assault in the third degree pursuant to General Statutes § 53a-72a (a) (1) (A). The Supreme Court reversed the defendant’s conviction finding that the defendant did not exert the “force” necessary to compel the sexual assault as required by General Statutes § 53a-72a (a) (1) (A). State v. Hufford, supra. The court explained that to prove the “use of force” element the evidence must demonstrate either “violence or some, other form of physical coercion.” Id., 392.

In reaching this result, the court in Hufford compared sexual assault in the third degree; General Statutes § 53a-72a (a) (1) (A); with sexual assault in the fourth degree; General Statutes § 53a-73a (a) (1) (E); and examined the legislative background of these statutes. The court explained that “[w]hile both statutes proscribe nonconsensual sexual contact, sexual assault in the third degree by use of force contemplates a will overborne by physical coercion, whereas sexual assault in the fourth degree addresses subjection to sexual contact upon a physically helpless person without the victim’s consent under circumstances not necessarily requiring physical force.” Id., 393.

In order to effectuate the sexual assault in Hufford, “[n]either violence, nor physical coercion, nor use of superior strength was necessary” because “[t]he complainant had been legally rendered immobile for transport to the hospital . . . .” (Emphasis added.) State v. Hufford, supra, 393. The present case is distinguishable in that the victim in this case was illegally rendered immobile as a result of the defendant’s actions. The defendant, by impersonating a police officer, was able to force the victim to pull her car off the road, thereby rendering her physically helpless. See State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985). We conclude that the defendant’s conduct constituted physical coercion. By using a subterfuge of being a police officer, the defendant caused the victim to stop her vehicle. Such coercion was intended to and did in fact place the victim in a position wherein she was compelled to submit to sexual contact by the defendant.

We hold, therefore, that on the facts of this case the jury could reasonably have concluded that the defendant used force to compel the complainant to submit to sexual contact, as contemplated by General Statutes § 53a-72a (a) (1) (A). Accordingly, there was no error in the trial court’s denial of the defendant’s motion for judgment of acquittal on that charge.

II

The defendant’s next claim is that his federal and state constitutional rights to due process of law were violated by the trial court’s denial of his motion to suppress two out-of-court identifications, and its subsequent admission of both the in-court and out-of-court identifications. The defendant argues that the pretrial identification procedures utilized by the police were impermissibly and unnecessarily suggestive, and that those procedures rendered all subsequent identifications inherently unreliable. We disagree.

The following facts are relevant to the defendant’s claim. Two days after the assault, Lieutenant Arthur Sullo of the Danbury police department examined the composite picture that was drawn from the victim’s description of her assailant, and notified the Brookfield police that he suspected the defendant was the perpetrator. Sullo was acquainted with the defendant because the defendant is a local practicing psychotherapist and had volunteered his services for the Danbury police department’s Hostage Negotiation Unit and also had been hired as a consultant.

On March 10, 1987, two detectives from the Brook-field police department contacted the complainant and requested to meet with her. At about 11 a.m., the detectives picked up the victim at her home and proceeded to the Brookfield police department. En route to the police station, after being asked to observe cars for the purpose of identifying those that resembled the one driven by her assailant, the victim pointed to the defendant’s car which was parked in the driveway of his residence. The detectives then drove the victim to a restaurant in Danbury where she was asked to observe the people entering and exiting the building. She was seated in the front seat of an unmarked police car which was parked about twenty-five feet from the entrance to the restaurant. She observed approximately twenty to thirty white males entering and exiting that restaurant.

After a short time, the defendant arrived at the restaurant as a passenger in a grey, four door Dodge Diplomat that parked in front of the vehicle in which the complainant was seated. The car was driven by Sullo, who had arranged to have lunch with the defendant that day for the specific purpose of the viewing. As the defendant exited the vehicle and walked toward the restaurant, the complainant positively identified him as her attacker.

After Sullo and the defendant entered the restaurant, the officers and the complainant went to the police station. At approximately 1:15 p.m., they returned to the restaurant and parked in front of the vehicle that the defendant had exited. Upon seeing the defendant leave the restaurant and walk to the car, the victim made a second positive identification of him. Later that day, at the police station, the victim gave a handwritten statement in which she indicated, inter alia, that the defendant’s hair appeared darker in color and his mustache was now a little longer.

“The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence when the procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). Tn order to establish that a pretrial identification procedure has violated a defendant’s constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive, and (2) that the resulting identification was not reliable under the totality of the circumstances.’ State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987). Whether such an identification procedure is unnecessarily suggestive, depends on the facts and circumstances of each case. State v. Findlay, 198 Conn. 328, 337-38, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).” State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). To prevail on his claim the defendant “must show that the trial court erred in determining both the ‘suggestiveness’ and ‘reliability’ of the identification. State v. Sims, [12 Conn. App. 239, 242, 530 A.2d 1069 (1987)].” State v. Barnes, 16 Conn. App. 333, 343-44, 547 A.2d 584 (1988).

Turning to the first prong of the analysis, the defendant argues that the identification procedures employed were constitutionally infirm for the following reasons: (1) the victim had reason to anticipate that she would be seeing someone the police suspected was the perpetrator; (2) the defendant arrived in an unmarked police car of a similar make and model to the one driven by the victim’s assailant; and (3) it was unnecessary for the police to undertake a public viewing.

It is not clear from the record whether the victim knew a suspect was expected at the restaurant. Assuming that she was aware that the police were bringing a suspect to the restaurant, we are unpersuaded that this information tainted the identification. Although it is true that when a witness “is asked to identify a person under circumstances in which it is evident that the police believe the person to be a suspect, there is a significant risk that the ensuing identification will have resulted from the suggestiveness of the procedure rather than from the viewer’s independent recollection”; State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); the fact of such knowledge alone does not render the identification procedure tainted per se. See State v. Hinton, 196 Conn. 289, 292-93, 492 A.2d 837 (1985) (one-on-one show up not denial of due process per se); State v. DeJesus, 7 Conn. App. 309, 315, 508 A.2d 463 (1986) (no due process violation when identification made while defendant was seated in police cruiser); see also State v. Arroyo, supra. The essential inquiry is not whether the victim knew she would be seeing a police suspect, but rather whether the viewing was impermissibly suggestive and unreliable. State v. Hinton, supra; State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. DeJesus, supra. The identification in this case was not a one-on-one confrontation between the complainant and the defendant. Cf. State v. Hinton, supra; State v. DeJesus, supra. On the contrary, the identification occurred at a public location and included the viewing of many white males. There is no evidence that the police singled out any particular person as a suspect, nor that any such indication was accomplished by subtle implication. We conclude that any awareness the victim may have had that she would see a person suspected to be her attacker that day did not render the identification impermissi-bly suggestive.

The defendant next argues that the use for the viewing of an unmarked police car of the same make and model as the one driven by the victim’s assailant at the time of the crime was an “unsubtle tip-off” to the victim that the defendant was the suspect and, thus, rendered the identification impermissibly suggestive. The record discloses that the automobiles were not the same make and model. Sullo’s was described as a dark grey, four door Dodge while the defendant’s car, identified by the victim while passing his home, was a 1983 two door, dark blue Plymouth Reliant. The record does not disclose any similarities between these two cars and contains no photographs. Despite this absence of evidence in the record to support the defendant’s claim, he argues that the court should employ its common knowledge to presume that everyone, including the victim, would identify an unmarked police car on sight. This we will not do. In attacking the identification procedures used by the police, the defendant bears the initial burden of establishing the suggestiveness and unreliability of the identification procedure; State v. Hinton, supra, 293; and, therefore, to present a record adequate for our review. On the record before us, we conclude that there was nothing inherently suggestive about Sullo’s arriving with the defendant in an unmarked police car. There is no evidence that the victim knew that the car from which the defendant exited at the restaurant was an unmarked police car or that she noted any similarity between that car, which was grey, and either the blue car parked in some unknown person’s driveway or the blue car used by the perpetrator. The fact that the defendant arrived at the restaurant in an unmarked police car did not render the identification constitutionally infirm.

The defendant’s final challenge to the suggestiveness of the identification is that it was entirely unnecessary for the police to conduct a public viewing because a lineup or photographic array could have been arranged. We emphasize that there is no constitutional right to a line-up; State v. Vaughn, 199 Conn. 557, 562, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d. 585 (1986); and there is nothing inherently suggestive about a public viewing. See State v. Ruiz, 202 Conn. 316, 320, 521 A.2d 1025 (1987); State v. Amarillo, 198 Conn. 285, 291-92, 503 A.2d 146 (1986); State v. Arroyo, supra; State v. Hyslop, 10 Conn. App. 457, 523 A.2d 1350 (1987). “[T]he state is under no affirmative duty to conduct every conceivable identification procedure.” State v. Vass, 191 Conn. 604, 619, 469 A.2d 767 (1983). “Absent constitutional barriers, so long as the witness has identified the defendant with reasonable probability, whether the identification is the result of a photo display, a line-up, a show-up or otherwise, the evidence is admissible. The question, in the final analysis, is one of relevancy.” State v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595 (1981). “If the state has not employed unduly suggestive methods of identification, its only remaining duty is to prove beyond a reasonable doubt at trial, that the identification is correct.” State v. Vass, supra, 611. The defendant’s argument, that other identification procedures were available, goes to the weight to be given that evidence rather than its admissibility. Id., 612.

Even if we were to assume, arguendo, that the procedures employed were suggestive, the defendant has failed to demonstrate that the identification was unreliable. “ ‘[I]n assessing the admissibility of in-court identification testimony, reliability is the “linchpin.” Manson v. Brathwaite, [432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)]; State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 886 [cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194] (1979). Reliability is to be determined by the totality of the circumstances . . . .’ ” (Citation omitted.) State v. Perez, supra, 75. In determining the reliability of the identification, a number of factors are relevant including “ ‘the opportunity of the witness to view the [defendant] at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the [defendant], the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” State v. Miller, 202 Conn. 463, 475, 522 A.2d 249 (1987), quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

Applying these factors to the facts of this case, we conclude that the initial identification was reliable. The victim testified that she had had a good view of the defendant at the time of the assault in daylight hours for approximately ten to fifteen seconds. Immediately after the assault, she had been able to describe the defendant to the police. The identification at the restaurant took place only eight days after the assault and the victim evinced a high degree of certainty that the defendant was the person who had assaulted her. We conclude that under the totality of the circumstances of this case, the defendant did not meet his burden of proving that the victim’s first identification of the defendant was unreliable.

Having determined that the victim’s initial identification of the defendant was not impermissibly suggestive or unreliable, it cannot be said that the second identification, made approximately one hour later, was tainted. State v. Amarillo, supra, 294; State v. Perez, supra, 74; State v. Barnes, supra, 345. Similarly, absent a tainted pretrial identification, it is unnecessary to review the suggestibility of the in-court identification. See State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986); State v. Amarillo, supra.

We conclude that the trial court did not err in denying the defendant’s motion to suppress the pretrial identifications as the procedure employed was not impermissibly suggestive nor was the identification unreliable.

Ill

The defendant’s third claim is that the trial court erred in denying his motion to suppress evidence seized from his home and automobile. The defendant asserts three arguments challenging the validity of the search: (1) the warrant was illegally issued; (2) the executing officers exceeded the scope of the warrant; and (3) the warrant was executed by officers outside their jurisdiction.

The defendant’s first challenge is that the search warrant was illegally defective on its face because the affidavit failed to establish probable cause as to certain items and was not sufficiently particularized. The warrant specifically authorized a search for and the seizure of certain items including: “A 1983 Plymouth reliant two door sedan . . . red emergency vehicle lights; badges; uniforms; uniform ornaments; dark blue trousers; shirts and ties; uniform patches.” The defendant concedes that the affidavit establishes sufficient probable cause with respect to all items listed except the uniform ornaments and the uniform patches. He argues that with respect to these two items, the warrant did not establish probable cause because the affidavit did not aver that the defendant wore these items at the time of the crime.

It is well established that “[i]n reviewing a search warrant affidavit the court ‘must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of the warrant. State v. Williams, 169 Conn. 322, 326, 363 A.2d 72 (1975); State v. Rose, 168 Conn. 623, 627-28, 362 A.2d 813 (1975); State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967).’ State v. DeChamplain, 179 Conn. 522, 527-28, 427 A.2d 1338 (1980); see State v. Arpin, 188 Conn. 183, 193, 448 A.2d 1334 (1982). ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.’ (Emphasis in original; citations omitted.) State v. DeChamplain, supra, 528-29; see State v. Arpin, supra.” State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).

“Whether there is probable cause is to be determined upon facts stated in the affidavit purporting to establish grounds for issuing the warrant. United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); State v. DeChamplain, [supra, 530]. In considering the sufficiency of the affidavit we confine ourselves to the facts which appear on the face of the affidavit or which properly may be inferred therefrom; State v. Williams, 170 Conn. 618, 629, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); testing those facts with common sense and reality; United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); and with great deference to the fact that the issuing magistrate did determine that probable cause existed. Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 4 L. Ed. 2d 697 (I960).” State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

“When a warrant is sought to search specific premises for certain objects the information appearing in the affidavit should demonstrate a nexus between the objects to be seized and the premises to be searched. United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). That nexus ‘[does] not have to rest on direct observation, but can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences . . . . ’ Id.” State v. Couture, supra, 536-37. Probable cause must be examined in terms of whether the evidence sought will aid in a particular apprehension or conviction. State v. Gold, 180 Conn. 619, 650-51, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

Although the affidavit did not state that the victim indicated that the assailant had ornaments or patches on his clothing, it did include the following information: (1) the victim was stopped by what she thought was an unmarked police car with a flashing light on the roof; (2) the victim’s assailant was wearing a uniform, a badge and buckle, and identified himself as “Officer Taylor”; (3) the perpetrator fit the defendant’s general description; (4) the description of the defendant’s car matched that of the assailant; and (5) the defendant had purchased numerous, sundry uniform patches and ornaments bearing the inscription “C.E.S.A.” (Connecticut Emergency Service Association).

The defendant was charged with the crime of criminal impersonation because he feigned being a police officer for the purpose of stopping the victim and effectuating the assault. Employing common sense in reviewing the facts contained in the affidavit, we conclude that there is more than sufficient information contained therein to allow a reasonable inference that the patches and ornaments were connected with the crime alleged.

The defendant claims that the warrant was invalid because it lacked particularization to authorize a search and seizure of any “badges” because the affidavit failed to contain a pictorial or written description of the specific silver badge described by the victim. The defendant maintains that this deficiency causes the warrant to be defective on its face and constitutes a “general” warrant. We disagree.

The fourth amendment to the United States constitution provides that a warrant must “particularly [describe] . . . the persons or things to be seized.” A particular description of the item to be seized is necessary to avoid a general exploratory rummaging in the search. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In determining whether a warrant is sufficiently particular in describing an item to be seized, a number of factors are relevant, namely, the purpose for which the warrant was issued, the relevance of the item to the crime charged, and the total circumstances surrounding the case. Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 2d 231 (1927). The warrant must be sufficiently definite so that the officer executing it can identify the property sought with reasonable certainty. Id. The affidavit in this case contained facts sufficient to allow for the search and seizure of “badges” in that probable cause existed to believe that badges purchased by the defendant in Dan-bury were used in the crime of criminal impersonation.

The defendant next maintains that the executing officers exceeded the scope of the warrant by seizing a number of items not named in the warrant. He argues that handcuffs and a police baton are examples of items seized that went beyond the warrant and were clearly prejudicial. Other items seized were police hats, an EMT jacket, and badge cases. All of these items were admitted into evidence at trial. The state contends that the seizure of these items was lawful under the plain view doctrine. See State v. Hobson, 8 Conn. App. 13, 18, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 684 (1987), citing State v. Pepe, 176 Conn. 75, 405 A.2d 51 (1978).

The plain view doctrine may be invoked to validate the seizure of evidence not mentioned in a warrant where three requirements are satisfied: (1) the initial intrusion that enabled the police to view the items was lawful; (2) the discovery of the evidence was inadvertent; and (3) the police had probable cause to believe that the items were reasonably related, in an eviden-tiary sense, to the commission of the crime. State v. DiStefano, 7 Conn. App. 726, 730, 510 A.2d 995 (1986).

The defendant does not challenge the legality of the police intrusion or the inadvertence of the discovery of the items. He alleges that the items were improperly seized because they were not named in the warrant and constituted neither contraband nor evidence of criminal activity. We find this claim to be without merit. The required inquiry is whether the incriminatory nature of the items was immediately apparent so as to establish that the officers had reason to believe that the items were related to the crime that formed the basis of the warrant. State v. Graham, 186 Conn. 437, 443-44, 441 A.2d 857 (1982); State v. Onofrio, 179 Conn. 23, 41, 425 A.2d 560 (1979).

There is no evidence that the police, in searching for and seizing items called for in the warrant, ignored the limits of the warrant and conducted a search so general or exploratory in nature as to violate the prohibition on unreasonable searches and seizures in both our state and federal constitutions. We conclude that the trial court could reasonably have found that the challenged items were reasonably related to the crime of criminal impersonation and supported the defendant’s modus operandi in committing the sexual assault. The court, therefore, did not err in refusing to suppress these items.

The defendant’s final challenge to the search is that the police officers exceeded the bounds of their jurisdiction. The defendant did not raise this claim at trial and seeks review pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and alternatively, under the plain error doctrine. Practice Book § 4185.

“ ‘Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’ State v. Evans, supra, 69. ‘There appears . . . to exist only two situations that may constitute “exceptional circumstances” such that newly raised claims can and will be considered by this court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second “exceptional circumstance” may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.’ (Emphasis added.) Id., 70.” State v. Smith, 209 Conn. 423, 425, 551 A.2d 742 (1988). The defendant’s claim involves an alleged statutory limitation on jurisdiction of the local police and is non-constitutional in nature. Consequently, review under Evans is unwarranted.

The defendant contends, alternatively, that we review this unpreserved claim under the plain error doctrine pursuant to Practice Book § 4185. The defendant does not assert the manner in which such an alleged error rises to the level of plain error. Furthermore, the error claimed by the defendant is not so obvious or so egregious as to constitute plain error.

IV

The defendant next claims that the trial court erred in permitting the state to introduce into evidence a police baton and handcuffs with matching key. The defendant argues that these items were irrelevant, highly prejudicial, and tended to show criminal propensity. We find these claims to be without merit.

Our Supreme Court has repeatedly held that it is reversible error for the trial court to allow into evidence articles seized from the defendant that tend to show criminal propensity unless those articles are connected to the commission of the crime charged. State v. Wilson, 199 Conn. 417, 449, 513 A.2d 620 (1986). To be admissible the evidence should establish a fact in issue or corroborate other evidence in the case. State v. Onofrio, 179 Conn. 23, 31, 425 A.2d 560 (1979). “The rationale of these cases is that, ‘[ajbsent such a connection, the balance of scales clearly tips against the probative value of the evidence.’ [Id.]” State v. Wilson, supra, 449-50. The trial court must determine, in the exercise of judicial discretion, whether the prejudice to the defendant is outweighed by the probative value of the evidence. State v. Onofrio, supra, 28-29. Absent an abuse of that discretion, we will not reverse the trial court’s judgment.

The complainant testified that she pulled her car over to the side of the road because she thought the defendant was a police officer. In addition to the sexual assault charge, the defendant was charged with impersonating a police officer. In light of the charges and the facts of this case, the evidence of handcuffs and a police baton found in the defendant’s home was admissible to prove the crime of criminal impersonation and corroborative of the plaintiff’s testimony. Although this evidence may have been cumulative of other evidence introduced to establish the crime of criminal impersonation, it was not of the type likely to excite the passions, awaken the sympathy, or influence the judgment of the jury. State v. Wilson, supra, 450; State v. Onofrio, supra, 30.

V

The defendant next claims that the trial court erred in admitting Sullo’s testimony regarding his opinion that the composite sketch of the victim’s assailant resembled the defendant. On direct examination, Sullo testified that on March 4, 1987, he received a copy of the composite sketch and a cover letter describing the crime from the Brookfield police department. In response to questions about his reaction to the composite sketch, Sullo stated that the drawing resembled the defendant. The defendant argues that the admission of Sullo’s lay opinion testimony was irrelevant and alternatively that, if relevant, its probative value was outweighed by its prejudicial effect. We disagree and find that Sullo’s testimony was both relevant and admissible.

Lay opinion may properly be admitted on the issue of the identity or similarity of persons. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.15.3 (b). Such testimony must, however, be based entirely on the witness’ own perception or within his actual knowledge. State v. Schaffer, 168 Conn. 309, 318-19, 362 A.2d 893 (1975). “Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused will not constitute reversible error.” Id., 319. The record is clear that Sullo knew the defendant and had professional encounters with him in the past so as to satisfy the above standard.

VI

The defendant’s final claim is that the trial court erred in refusing to poll the jury during the trial after an article concerning the trial appeared in the local newspaper. The following facts are pertinent to this claim. Edward McGee, the owner of New England Uniform, the shop where the defendant had purchased police uniform items, was asked whether the defendant had said anything to him when he made his purchases. Out of the presence of the jury, McGee responded that when asked how to spell his occupation, the defendant had replied “psycho-the-rapist.” The trial court sustained the defendant’s objection, finding that this remark was highly prejudicial and its relevance limited because the conversation occurred in 1985 and the remark may have been intended as a joke. The following day, a recitation of the McGee’s testimony was reported in a local newspaper article encaptioned: “Jury Doesn’t Hear Rapist Remark.” The defendant requested the trial court to voir dire each member of the jury to determine whether any of them had read or heard about the case since the close of evidence the previous day. The trial court denied the defendant’s request on the grounds, inter alia, that the court instructed the jury throughout the trial and at the close of evidence the previous day to avoid media coverage of the case and not to discuss the case with anyone, that there was no evidence that any juror had heard any prejudicial evidence, and that such an inquiry would invade “the sanctity of the jury process.”

The defendant does not claim that any particular juror read the article or heard the radio reports, but rather that the court’s refusal to poll the jury deprived him of his state and federal constitutional rights to an impartial jury. U.S. Const., amend. VI, XIV; Conn. Const., art. I, § 8.

“To raise the duty of inquiry by the trial judge to a constitutional level it is not enough for the defendant to show that the information contained in the newspaper article is inadmissible or even that it is arguably prejudicial. A constitutional duty to conduct an inquiry will arise if the character of the information contained in the newspaper article is such that it would so taint the proceeding that no curative instruction could effectively avert the prejudicial effect.” State v. Haskins, 188 Conn. 432, 449, 450 A.2d 828 (1982).

We conclude that the article did not meet the requisite standard and, therefore, did not trigger a constitutional duty to conduct the requested inquiry. “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U.S. 245, 251, 31 S. Ct. 2, 54 L. Ed. 2d 1021 (1910).

The trial court properly and adequately instructed the jurors when they were impaneled not to read, listen to or watch any media coverage concerning the trial. This instruction was repeated numerous times during the proceedings. The record does not disclose that any juror ignored these instructions. We presume that jurors follow the instructions given by the trial court. State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). We conclude that the trial court did not abuse its discretion in denying the defendant’s request.

There is no error.

In this opinion the other judges concurred.

       The defendant also was charged with one count of coercion in violation of General Statutes § 53a-192 (4). Prior to jury deliberations, the court granted the defendant’s motion for judgment of acquittal on that count.

       “[General Statutes] Sec. 53a-130. criminal impersonation: class b misdemeanor, (a) A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends to be a public servant, or wears or displays without authority any uniform or badge by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”

       General Statutes § 53a-72a (a) (1) (A) provides: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by use of force against such person . . . .” (Emphasis added.)
      “General Statutes § 53a-65 (7) (B) defines ‘use of force’ as ‘use of actual physical force or violence of superior physical strength against the victim.’ ” State v. Hufford, 205 Conn. 386, 391, 533 A.2d 866 (1987).

       The state asks us to distinguish State v. Hufford, 205 Conn. 386, 391, 533 A.2d 866 (1987), on the ground that unlike the “mere touching” in Hufford, the sexual contact in this case was forceful in that by grabbing the victim’s breasts the defendant exercised excessive force and thereby hurt her. We decline to distinguish Hufford on that basis because we conclude that the degree of force used in the sexual contact is not the controlling factor for the crime of sexual assault in the third degree but rather the force used to compel the sexual contact. Id.

       Both the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee the right of a defendant not to be deprived of his liberty without due process of law.
      The defendant concedes that he did not raise his state constitutional claim at trial in that his motion to suppress only cited the federal constitution. Despite his failure to raise his state claim distinctly at trial, the defendant urges us to consider it under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).
      It is unnecessary for us to decide whether the defendant’s state constitutional claim is reviewable under Evans because the defendant has not provided us with any separate analysis of that issue. We, therefore, decline to undertake such an analysis and review this claim with reference only to the federal constitution. See State v. Nelson, 17 Conn. App. 556, 568-69, n.9, 555 A.2d 426 (1989).

       A third out-of-court identification occurred on June 24, 1987, when the victim was at the Danbury courthouse. While in the hallway, the victim recognized the defendant as he stepped out of an elevator.

      - Even if we were to assume, arguendo, that the trial court erred in admitting this evidence, in view of the complainant’s solid identification testimony of the defendant, such an error would be harmless.


author: Norcott, J.

text:
    State of Connecticut v. Naphtali E. Brown
    (7277)
    Borden, Stoughton and Norcott, Js.
    Argued April 19
    decision released June 27, 1989

      KentDrager, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant was charged with pos-

session of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). On September 8,1987, the defendant entered a plea of guilty, and the trial court conducted an extensive plea canvass that covered two days. After accepting the guilty plea, the court sentenced the defendant to ten years, execution suspended after six years with five years probation on the drug charge, and to twenty-one months for a violation of probation to run concurrently.

The defendant now appeals from the judgment of conviction claiming that the trial court erred in accepting his plea as knowingly, intelligently and voluntarily made. The gravamen of the defendant’s claim is that, under the circumstances of this case, the constitution required that the trial court advise the defendant of the availability of the conditional nolo contendere plea pursuant to General Statutes § 54-94a. We find no error.

We first note that this claim was not raised in the trial court and that the defendant seeks appellate review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).- In order to review a claim under Evans, we must determine whether the claim raises an issue that implicates a fundamental constitutional right and, if so, whether the constitutional claim is adequately supported by the record. State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). To this end we review the record in a limited way to determine “ ‘ “whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant. . . .” State v. Thurman, [supra].’ State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987) . . . .” State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1206 (1988).

Due process requires that the trial court ensure that a defendant’s guilty plea is voluntarily, knowingly and intelligently made. State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985); State v. Childree, 189 Conn. 114, 120, 454 A.2d 1274 (1983). In an appropriate case we will review fully a claim that the trial court improperly canvassed the defendant before accepting a guilty plea, even though the defendant did not raise the issue in the trial court. State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The required limited review of the record reveals that the state recited the following facts as the basis for the defendant’s guilty plea. On February 1,1987, at about 12:01 a.m., Bridgeport police officers were conducting a narcotics investigation in the area of Sixth Street and Stratford Avenue when they observed a man later identified as Dennis McCloshin leaning into an automobile. They observed McCloshin holding a cellophane bag while he was engaged in conversation with the occupants of the vehicle. The police officers believed that a narcotics transaction was taking place. They then saw the defendant within a few feet of McCloshin and heard him yell “Five-O,” a common warning that police are in the area. McCloshin immediately put the bag into his pocket and was arrested as he began to walk away. The defendant entered a nearby bar. The police followed, arrested and searched the defendant, finding eighteen tin foil packets containing cocaine and $132.

During the trial court’s plea canvass, it became apparent that the defendant did not agree with some of these factual claims. In particular, the defendant refused to concede that he was outside of the bar immediately prior to his arrest.

The defendant did concede, however, that he was in possession of the eighteen packets of cocaine inside the bar and that, at the time, he was not a drug dependent person, thereby admitting the factual basis for his plea to the crime with which he was charged, as required by Practice Book § 713. The trial court continued the canvass, informing the defendant of the maximum sentence that the court could impose and reviewing the plea bargain, which would encompass both the narcotics charge and the violation of probation. The court then adjourned until the following day.

The next day, although defense counsel told the court that the defendant was thinking of withdrawing his plea, he never requested such withdrawal. The court again read the information to the defendant, indicated to him that the offense to which he was pleading did not depend on what happened outside the bar, and told the defendant that it did not want him to do something that made him uncomfortable and that he could proceed to trial if he so desired. The court then asked the defendant whether he understood the court’s questions and information, whether he agreed with the facts as stated and whether he felt everything was correct. The defendant indicated that he did. The court then accepted the plea and imposed sentence.

The defendant argues that the court had been alerted to his disagreement with some of the facts underlying the probable cause for his arrest and search. He contends that the trial court therefore violated his constitutional rights by not advising him of the availability of a conditional nolo plea pursuant to General Statutes § 54-94a as an alternative to pleading guilty. We disagree.

A trial court’s reponsibilities at the time of a plea canvass are clear. “Under Boykin [v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)], in order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights — jury trial, confrontation and self-incrimination.” State v. Badgett, supra, 418. The Supreme Court’s analysis in Badgett focused on “whether the federal constitutional principles of Boykin were satisfied rather than on meticulous compliance with the provisions of the Practice Book”; id.; although the court also has indicated that noncompliance with Practice Book § 711 may implicate the voluntary nature of the plea and consequently its constitutional validity. State v. James, 197 Conn. 358, 365, 497 A.2d 402 (1985).

Under the procedural posture of this case, the defendant was not even in a position to avail himself of the provisions of the conditional nolo plea, which is predicated on an adverse ruling on a motion to suppress or dismiss. Although the defendant had filed the motions prior to his guilty plea, he did not pursue them. He accepted the plea bargain and pleaded guilty, thus obviating the need for the court to rule on the motions. The defendant’s claim would require us to hold that the trial court should have advised the defendant of a procedure that was not available to him at the time of the canvass.

If it becomes apparent that a defendant does not accept the factual basis that established probable cause for his arrest and search, the defendant’s counsel may have a duty to inform him that one of his options is to pursue his motions to suppress and dismiss, thus protecting his right to make a conditional nolo plea. There is, however, no obligation for the court to become involved in such strategy decisions. “ ‘Except for those inquiries which are constitutionally mandated or are required by our rules; Practice Book, 1978, §§ 711-713; the court is not obliged to assume the role of the defendant’s counselor.’ ” State v. Eason, 192 Conn. 37, 45, 470 A.2d 688 (1984), quoting State v. Torres, 182 Conn. 176, 184, 438 A.2d 216 (1980).

In this case the defendant does not claim that the trial court failed to advise him of the core rights enunciated in Boykin, and he does not challenge the trial court’s canvass on the basis of noncompliance with the Practice Book. What he would have us do, however, is graft onto the federal constitutional principles of Boykin the explanation of possible pretrial strategies, a course best left to the advocacy of defense counsel and not the courts.

The defendant characterizes this case as one involving unique circumstances, but we find this not to be so. The defendant here had a plea bargain that he chose to accept as an alternative to a suppression hearing and the risks of trial. The record is clear that the defendant, with a conspiracy charge and a violation of probation to be considered, wanted to accept the plea bargain. He was represented by counsel and was not a novice in the criminal justice system. At all appropriate times during the process, the defendant made tactical choices — not to proceed to trial, not to contest the search and to accept a very favorable plea bargain.

Our limited review of the record discloses that the defendant’s claim is not truly of constitutional proportions. “Putting a constitutional tag on a nonconstitu-tional claim will no more change its essential character than calling a bull a cow will change its gender.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Accordingly, the defendant has failed to satisfy the second requirement for Evans review.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable seareh or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       We note from the record and briefs that the defendant is pursuing a claim of ineffective assistance of counsel in a separate habeas corpus action.

       The total effective sentence facing the defendant upon a conviction included a twenty year maximum for the narcotics charge plus the twenty-one months for the violation of probation.


text:
    E. Janice Augeri v. Planning and Zoning Commission of the City of Middletown et al.
    (7479)
    Daly, Foti and Jacobson, Js.

      Argued April 5
    decision released June 5, 1989

      Gerald L. Garlick, with whom, on the brief, was H. David Leventhal, for the appellant (plaintiff).

      Trina A. Solecki, city attorney, for the appellee (named defendant).

      JohnH. Hanks, for the appellee (defendant Thaddeus Bysiewicz).
   Jacobson, J.

This is an appeal from a decision of the trial court, Higgins, J., denying the plaintiff’s motion to open the judgment of the trial court, R. 0 ’Connell, J., dismissing the plaintiff’s appeal. We find error.

The following facts are relevant to the appeal. On September 21, 1987, the plaintiff, owner of real property in Middletown, filed an appeal from a decision of the planning and zoning commission approving a subdivision application for property abutting the plaintiff’s. The citation named the defendant planning and zoning commission (commission) and directed the sheriff to serve the town clerk with a copy of the summons and complaint. The citation failed to cite the chairman or clerk of the commission. In addition, the sheriffs return was not attached to the appeal documents returned to the court. The original sheriffs return was eventually filed on November 23, 1987.

The defendant property owner, Thaddeus Bysiewicz, moved to dismiss the appeal on November 13, 1987. In his motion papers, he argued that the citation failed to name the chairman or clerk of the commission as required by General Statutes § 8-8, which constituted a jurisdictional defect mandating dismissal. He also noted, but did not specifically argue, that the court file did not contain the sheriffs return; On November 20, 1987, the trial court, Budney, J., scheduled argument on the motion to dismiss for November 23, 1987, on the short calendar.

At the short calendar hearing, Bysiewicz argued that the motion should be granted because the plaintiff had failed to cite the proper parties, and because the sheriffs return had not been attached to the appeal documents. Although Bysiewicz’ supporting motion documents argued only that the appeal should be dismissed because of the alleged citation deficiencies, the oral argument focused on the perceived inadequacy of the return of process. The court then set a schedule for briefs on the issue of whether the appeal should be dismissed because the appeal documents returned to court failed to include the sheriff’s return.

Following the hearing, Bysiewicz filed a supplemental memorandum in support of the motion to dismiss, which argued both grounds for dismissal. The plaintiff filed a memorandum in opposition to the motion to dismiss on December 7,1987, addressing both arguments propounded by Bysiewicz. By filing the memorandum on that date, the plaintiff complied with the briefing schedule arranged by the trial court on November 23.

Argument on the motion was postponed. On February 16,1988, Bysiewicz filed another supporting memorandum, this time alleging that the plaintiff had failed to comply with the requirements of Practice Book § 143 because she did not timely file a memorandum in opposition to his motion to dismiss, filed on November 13, 1987. The plaintiff filed her memorandum in opposition to this motion on March 9, 1988, addressing the alleged defects in the citation as well as Bysiewicz’s argument that the appeal should be dismissed because the plaintiff failed to file her motion in opposition in a timely manner.

Argument on the motion to dismiss was heard on March 14, 1988, before R. O’Connell, J. Each of the three grounds for dismissal advanced by Bysiewicz was argued before the court, although the majority of the hearing was confined to the issue concerning the defects in the citation. After the hearing, decision was reserved and rendered sometime later. The court granted the motion without comment.

The plaintiff petitioned this court for certification to appeal, which was denied on April 7, 1988. She thereafter filed a motion to open the judgment of dismissal, as provided by Public Acts 1988, No. 88-79, which became effective on April 20, 1988. After a hearing, the trial court, Higgins, J., denied the motion. The memorandum of decision stated: “The plaintiff alleges that the court (R. O’Connell, J.) dismissed this appeal on the basis of the Supreme Court’s Simko decisions. The court finds that the appeal was dismissed for the failure to file a memorandum of law in opposition to the motion to dismiss five days before the motion was to be heard at short calendar .... In the present case, the motion to dismiss was scheduled for short calendar on November 23, 1987. The plaintiff filed a memorandum of law in opposition to Bysiewicz’ motion to dismiss on December 7, 1987, 14 days after short calendar. Since the Simko legislation, section 3 (b) of Public Acts 1988, No. 88-79, addresses only Simko defects, it is found that this curative legislation is not applicable in this case. The said motion to open is denied.” We granted the plaintiff certification to appeal from the judgment of the trial court denying her petition to open the judgment of dismissal of her appeal.

The plaintiff claims that the court erred in denying her motion after determining that the trial court had dismissed her appeal for failing to file timely a memorandum in opposition to the defendant’s motion to dismiss. We agree.

Our review, on an appeal taken from a denial of a motion to open a judgment, seeks to determine whether the trial court acted unreasonably and in clear abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985); Crozier v. Zdboori, 14 Conn. App. 457, 461, 541 A.2d 531 (1988). The same standard of review applies to those motions to open brought under the common law and those, as in the case here, brought pursuant to a statute. Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979). In deciding whether the trial court abused its discretion, “the ultimate issue is whether the trial court could reasonably conclude as it did. E. M. Loew’s Enter prises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 [1959].” State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971).

Given the facts presented by the plaintiff, which are supported in the record and uncontested in the defendants’ appellate briefs, we hold that the trial court erred when it ruled that the original trial court dismissed the plaintiff’s zoning appeal because the plaintiff had failed to file timely her memorandum in opposition to Bysie-wicz’ motion to dismiss. By scheduling the short calendar hearing three days after the November 20, 1987 briefing schedule, the court effectively precluded the plaintiff from meeting the time requirements in Practice Book § 143. Further, the transcript clearly indicates that the court waived the requirement by setting a briefing schedule on the matter. Therefore, the trial court’s decision denying the plaintiff’s motion to open was made in error.

On remand, the trial court should consider whether the appeal properly could have been dismissed for the plaintiff’s failure to attach the sheriffs return to the appeal documents. A determination of that issue would logically precede consideration of the plaintiff’s motion to open based on Public Acts 1988, No. 88-79, and subsequent case law interpreting that statute.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 8-8 provides in pertinent part; “(a) Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.
      “(b) Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality. The appeal shall state the reasons upon which it has been predicated and shall not stay proceedings upon the decision appealed from, but the court to which such appeal is returnable may, on application, on notice to the board and on cause shown, grant a restraining order.’’

       During the hearing, the following exchange between John H. Hanks, counsel for the defendant Bysiewicz, and Jule A. Crawford, the plaintiff’s counsel, took place:
      “Mr. Hanks: I would be happy to file a brief by tomorrow of this new narrow issue which the judge points out. Also, you’re required to file a brief within five days.
      “The Court: Why don’t you both file a brief on that narrow issue .... The question is where are you when you haven’t filed the return of service with the complaint? Are you out or are you in?
      “Ms. Crawford: Your honor, just on that last point that Mr. Hanks brought up that I was to file a memorandum in opposition to his motion to dismiss within five days of being in court, we would have been in court, I believe, next Monday had—
      “The Court: Don’t worry about that, that’s not a problem.
      “Mr. Hanks: That’s a very minor point.
      “Ms. Crawford: All right. And the other thing is, I was told—
      “The Court: I can waive that and we will get around. This was put on as a write-in to get you onto the briefing schedule.
      “Ms. Crawford: Your honor, when would this brief on the point be due?
      “The Court: The brief on the motion to dismiss, what do you want, two weeks? . . .
      “Ms. Crawford: Your honor, I would appreciate two weeks.
      “The Court: All right, let’s make it two weeks, on or before December 7 and then let’s make the briefing schedule, which I’ve been asked to take up. Let’s see, if I get it December 7, give me about ten days to make a decision. . . .
      “So we’re going to get briefs by December 7 on that issue of what happens when you don’t attach the return of service to the complaint

       This supplemental memorandum was filed on December 4,1987, three days after the Supreme Court released its decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), aff’d on rehearing, Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (en banc).

       Practice Book § 142 provides: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . . [T]he motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the court otherwise directs.”
      Practice Book § 143 provides: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”
      The defendant Bysiewicz’ memorandum followed the release of our decision on February 9, 1988, in Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995, cert. denied, 208 Conn. 802, 545 A.2d 1100 (1988), aff’d, 209 Conn. 609, 553 A.2d 161 (1989), where we held that the timely filing of a memorandum of law in opposition to a motion to dismiss pursuant to Practice Book § 143 is mandatory.

       Public Acts 1988, No. 88-79, § 3 (b) provides: “If any appeal of a decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals taken on or after October 1, 1985 and prior to December 1, 1987, has failed to be tried on its merits because the appeal has been dismissed by the superior court for want of jurisdiction due to the failure of the party taking such appeal to name the clerk of the municipality as a party to the appeal in the appeal citation, the party taking such appeal may, within ninety days after the effective date of this act, petition the court to reopen such appeal. Notwithstanding the provisions of section 52-212a of the general statutes, such party shall have the right to have such appeal reopened unless the court finds that (1) there has been a substantial infringement of property rights or (2) the judgment of the superior court has been appealed and a final judgment has been rendered on that appeal.”

       The defendant Bysiewicz argues that this court lacks subject matter jurisdiction to entertain the appeal because the trial court, Higgins, J., lacked jurisdiction. This argument is fallacious. Our court has jurisdiction to determine whether a trial court had jurisdiction. See Drake v. Planning & Zoning Commission, 14 Conn. App. 583, 541 A.2d 1251 (1988) (en banc).