author: LANDAU, J.

text:
    ENVIROTEST SYSTEMS CORPORATION v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 19668)
    Landau, Ilennessy and Zarella, Js.

      Argued June 9
    officially released September 5, 2000

      Clifton A. Leonhardt, chief counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Jeffrey J. Mirman, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant freedom of information commission (commission) appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Envirotest Systems Corporation, from a decision by the commission ordering the disclosure of certain materials relating to state vehicle inspection report forms. On appeal, the commission claims that the court improperly concluded that the plaintiff is not the functional equivalent of a public agency within the meaning of General Statutes (Rev. to 1997) § l-18a (a), now § 1-200 (l), and, therefore, is not subject to the disclosure requirements of the Freedom of Information Act (act), General Statutes (Rev. to 1997) § 1-7 et seq., now § 1-200 et seq. We affirm the judgment of the trial court.

The record discloses the following factual and procedural history. The plaintiff received a letter in April, 1997, from Andrew J. Simso III, requesting copies of all records or files related to any request, requirement or advisement of changes to the state vehicle inspection report. The plaintiff informed Simso that it was not a public agency and, therefore, not subject to the disclosure requirements of the act. Simso then submitted a letter to the commission, alleging that the plaintiff violated the act by failing to provide the requested information. The commission concluded that the plaintiff was the functional equivalent of a public agency within the meaning of § l-18a (a) and as set forth in Connecticut Humane Society v. Freedom of Information Com mission, 218 Conn. 757, 760, 591 A.2d 395 (1991), and, therefore, subject to the jurisdiction of the commission. The commission further concluded that the plaintiff had violated the provisions of General Statutes (Rev. to 1997) § 1-15 (a), now § 1-212 (a), and ordered the plaintiff to provide the requested records.

The plaintiff appealed to the trial court, claiming that the commission incorrectly concluded that it was the functional equivalent of a public agency. The court concluded that the plaintiff was not a public agency within the meaning of the statute and sustained the plaintiffs appeal. On appeal to this court, the commission claims that the trial court concluded improperly that the plaintiff is not the functional equivalent of a public agency for the purposes of the act. We disagree.

The following facts were found by the commission and are relevant to our resolution of this claim. The plaintiff was not created by government; rather, it is a for profit corporation that administers environmental programs nationwide. The plaintiff contracts with the department of motor vehicles (department) to administer the state’s automobile emissions program and is paid approximately $25 million by the state pursuant to the contract.

“We review the issues raised by the [commission] in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.]. . . . The scope of permissible review is governed by [General Statutes] § 4-183 Q) and is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant. . . . The conclusion reached by the defendant must be upheld if it is legally supported by the evidence. . . . The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence printed in the appendices to the briefs which reasonably supports the decision of the commissioner, we cannot disturb the conclusion reached by him. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.

“The interpretation of statutes presents a question of law. . . . Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... it is for the courts, and not for administrative agencies, to expound and apply governing principles of law. . . . Because the commission’s determination of whether the plaintiff is a public agency required an interpretation of § l-18a (a) [now § 1-200 (1)], that determination was a matter of law.” (Citations omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 47 Conn. App. 466, 469-71, 704 A.2d 827 (1998).

“Our Supreme Court was first asked to construe the term ‘public agency’ in Board of Trustees v. Freedom of Information Commission, [181 Conn. 544, 436 A.2d 266 (1980)]. In Board of Trustees, the court adopted the ‘functional equivalent’ test of the federal courts to determine whether an entity is a public agency. ” Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 473. “In determining whether an entity is the functional equivalent of a public agency, we consider the following criteria: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.” (Internal quotation marks omitted.) Connecticut Humane Society v. Freedom of Information Commission, supra, 218 Conn. 760. “All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.” (Internal quotation marks omitted.) Id., 761.

The first prong of the functional equivalent test is whether the entity performs a governmental function. In Domestic Violence Services of Greater New Haven, Inc., the plaintiff provided services to victims of domestic violence pursuant to General Statutes § 46b-38c (f), which directs local family violence units to enter into contracts with private victim service providers such as the plaintiff in that case. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 471-72. The court concluded that although the provision of services to victims of domestic violence was a governmental function, the plaintiff did so according to contract. Id., 474-75. “Performing a government service pursuant to contract does not make an entity a public agency subject to the act. . . . The key to determining whether an entity is a government agency or merely a contractor with the government is whether the government is really involved in the core of the program.” (Citations omitted; internal quotation marks omitted.) Id.

Similarly, in this case the court found that General Statutes § 14-164c was intended to make automobile emissions inspections a governmental function. While we agree that the plaintiff performs a governmental function in that it provides automobile emissions inspections for the public, we note that the plaintiff is not required to undertake this activity by statute. Connecticut Humane Society v. Freedom of Information Commission, supra, 218 Conn. 765. It provides this service pursuant to contract. See Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 475. Therefore, while the plaintiff may perform a governmental function, it does so pursuant to its contractual relationship with the state and otherwise would have no obligation to provide emissions inspections.

The second prong of the functional equivalent test is concerned with the level of government funding. The commission took “administrative notice” of the Connecticut budget for 1997-1998 and found that the cost of the emissions inspection program was $25 million, the vast majority of which was paid to the plaintiff. The commission concluded, therefore, that the level of government funding was substantial. The court found that the amount of money received by the plaintiff reflects the amount of business that is done pursuant to the contract and not an allotment of government funds. We agree with the court.

As previously discussed, the plaintiff in Domestic Violence Services of Greater New Haven, Inc., provided services to victims of domestic violence pursuant to a contract with the state. This court concluded that “[t]he amount of government money the plaintiff receives reflects the amount of business it does with government. See Lombardo v. Handler, 397 F. Sup. 792, 796 (D.D.C. 1975), aff'd, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932, 97 S. Ct. 2639, 53 L. Ed. 2d 248 (1977). Although the plaintiff receives a significant amount of funding from various government sources, the funds are consideration for providing certain services to victims of family violence as set forth in grants and contracts.” Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 475-76. Given these circumstances, the court in Domestic Violence Services of Greater New Haven, Inc., concluded that the second prong of the functional equivalent test was not met.

In this case, as in Domestic Violence Services of Greater New Haven, Inc., the payment made to the plaintiff was consideration for the services it provided pursuant to a contract for the administration of the emissions inspection program. The court correctly concluded that the second prong of the functional equivalent test was not met.

The third prong of the functional equivalent test evaluates the extent of government involvement or regulation. The commission concluded that because the plaintiff maintains offices at many of the defendant’s emissions stations and conducts periodic site visits at other stations to ensure compliance with state regulatory requirements, the plaintiff was subject to substantial government involvement or regulation. The court concluded that because the department did not control the day-to-day operations of the plaintiffs business, the third prong of the functional equivalent test was not satisfied. We agree with the court’s determination.

In Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 296, 557 A.2d 568, cert. denied, 212 Conn. 804, 561 A.2d 945 (1989), this court held that to satisfy the regulation prong of the test, the entity must “operate under direct, pervasive or continuous regulatory control . . . .” Also critical in the determination of whether an entity is a governmental agency is the amount of control the government exercises over the entity’s detailed physical performance. Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 478. In Forsham v. Harris, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980), the United States Supreme Court addressed whether the acts of a private entity that received grants of federal funds became governmental acts subjecting that entity to the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552. The court held that “absent extensive, detailed, and virtually day-today supervision,” the entity was not a “federal instrumentality or an FOIA agency.” Id., 180.

The record does not indicate that the department exerts direct, pervasive or continuous regulatory control over the plaintiffs business. The plaintiff is a private corporation doing business nationwide, and its employees are not government employees. The department maintains offices at many of the defendant’s emissions stations and conducts periodic site visits to evaluate rather than control the plaintiffs activity. See Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, supra, 47 Conn. App. 477. Because the government does not control the day-to-day activity of the plaintiffs business, the third prong of the functional equivalent test is not met.

The parties agree that because the plaintiff was not created by government, the fourth prong of the functional equivalent test also is not met. Our review of the record leads us to conclude that the court properly determined that the plaintiff is not the functional equivalent of a public agency and that the court therefore correctly sustained the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendant in this action is Andrew J. Simso III, whose written request to the plaintiff, Envirotest Systems Corporation, spawned the events that led to this appeal. Because only the commission has appealed from the judgment of the trial court, we refer in this opinion to the commission as the defendant.

       General Statutes (Rev. to 1997) § l-18a (a), now § 1-200 (1), provides: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only in respect to its or their administrative functions.”

       State of Connecticut vehicle inspection reports are generated by the department, of motor vehicles (department) and contain the results of vehicle emissions tests. The form was revised in March, 1993, deleting the portions that required repairs performed after failing the test to be done using manufacturer’s recommended procedures. Simso’s request referred to documents concerning that change.

       General Statutes (Rev. to 1997) § 1-15 (a), now § 1-212 (a), provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. ...”

       The plaintiffs administrative appeal was brought pursuant to General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § 14-164c (e) directs the commissioner of motor vehicles to “enter into a negotiated inspection agreement or agreements . . . with an independent contractor or contractors, to provide for the leasing, construction, equipping, maintenance or operation of a system of official emissions inspection stations . . . .”

       The court further noted that the administrative record before it disclosed that all money collected by the plaintiff for performing the state’s emissions testing is deposited into a state fund. The plaintiff then submits a bill to the state and is paid for every emissions test performed.

       The commission argues that the allotment of funds is more closely related to the public financing of Woodstock Academy in Board of Trustees v. Freedom of Information Commission, supra, 181 Conn. 554-55, which was held to satisfy the second prong of the functional equivalent test. In that case, the town of Woodstock paid the entire tuition fees of those pupils who resided in the town and attended the academy. Id., 547. The per pupil allotment in Board of Trustees and the per automobile allotment in this case, according to the commission, are functionally the same. The court, in Board of Trustees, found illuminating that 95.32 percent of the academy’s operating expenses came from tuition payments received from the towns of Woodstock, Pomfret and Eastford. Id. The commission claims that since 100 percent of the defendant’s Connecticut revenues come from the government, it should be held to receive substantial government funding. We are not persuaded.
      In Board of Trustees, Woodstock was operating under a state constitutional mandate that a free public education at the secondary school level be provided to all children residing in Connecticut. Id. There is no such mandate in General Statutes § 14-164c that the emissions program be free to the public.

       The commission argues additionally that Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom, of Information Commission, 212 Conn. 100, 561 A.2d 429 (1989), allows this court to find the plaintiff to be the functional equivalent of a public agency for actions taken in the performance of its government services, but not those activities unrelated to government. We reject this argument. In Cos Cob Volunteer Fire Co. No. 1, Inc., unlike in this case, the volunteer fire department was found to be a public agency under General Statutes § l-18a (a). The court held that a statute that exempted “operational” meetings of volunteer fire departments from the act’s requirement that they be open to the public did not apply to the “nonoperational” portions of the meetings. Id., 105-106. We, however, have determined that the plaintiff here is not a public agency or its functional equivalent, nor is there a statute at issue such as the one in Cos Cob Volunteer Fire Co. No. 1, Inc.. Therefore we need not address the question of whether some of the plaintiff’s activities can be subject to the act.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTHONY JONES
    (AC 19056)
    Lavery, C. J., and Landau and Hennessy, Js.

      Argued May 31
    officially released September 12, 2000

      Richard W. Callahan, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Anthony Jones, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3), and robbery in the second degree in violation of General Statutes § 53a-135 (a) (1), and of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). The defendant claims that the trial court improperly (1) denied his motion to suppress identification evidence and (2) failed to grant his motions for judgment of acquittal on the charge of larceny in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 24, 1998, between 1:30 a.m. and 1:45 a.m., the victim, Ladislav Konecny, picked up a prostitute while returning home from visiting friends. He later dropped her off at the grocery store in Bridgeport where he had picked her up. As she left his car, she grabbed his purse, which contained his wallet, credit cards, checkbook and the keys to his house. The victim chased the woman, who ran behind the market. The victim caught her there and retrieved his purse. As the victim was walking to his car, he saw five men walking toward him. He ran but the men surrounded him. The defendant, one of the group of five, demanded the victim’s purse and the victim gave it to him. The men then beat the victim and told him to run. Upon finding that his car had been stolen, the victim went back to the area where his purse had been taken, and the only two remaining men told him to run away. The victim ran to a police station to report the incident.

Later that morning, the victim and a friend returned to the area and, upon seeing the prostitute and his car, informed the police. Police Officer Donna Stewart of the Bridgeport police department drove the victim to the area where he had seen the prostitute. The prostitute directed Stewart and the victim to Coleman and Washington Streets. Upon arriving in that area, the vie-tim saw his stolen car with the defendant inside it. As Stewart drove closer, the defendant got out of the car and started talking to Stewart. It was during this time that the victim recognized the defendant as the man who had robbed him earlier. The defendant proceeded to run away from Stewart and was apprehended by other police officers. A pat-down of the defendant revealed the victim’s wallet in his rear pocket, and the victim’s purse was found in the front seat of the car.

I

The defendant first claims that the court improperly failed to suppress identification testimony of the victim. Specifically, the defendant contends that the evidence at the suppression hearing showed that the victim identified the defendant as a result of a procedure that was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. The defendant claims that the victim did not identify him until the police brought the defendant to the police car that the victim was seated in and produced the victim’s wallet from the defendant’s pocket. The defendant contends that this was an unnecessarily suggestive one-on-one show-up and pat-down.

The fourteenth amendment to the United States constitution provides in relevant part that “[n]o State shall . . . deprive any person of life, liberty or property, without due process of law . . . .” U.S. Const., amend XIV. The due process clause requires the exclusion of evidence concerning a pretrial identification when the identification procedure used “was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification.” (Internal quotation marks omitted.) State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979).

“[I]t is well established that conduct that may fairly be characterized as state action is a necessary predicate to a challenge under the due process clause . . . .” State v. Holliman, 214 Conn. 38, 45, 570 A.2d 680 (1990). If an identification of a defendant is done spontaneously and is not arranged by the police, the identification is not tainted by state action and due process rights are not violated. See State v. Watson, 50 Conn. App. 591, 602, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999); State v. Henderson, 37 Conn. App. 733, 740, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995); State v. Nims, 8 Conn. App. 631, 637, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986).

In the present case, there was no police conduct leading to the identification of the defendant. The victim pointed out the stolen car to the police and blurted out that the defendant was the man who had robbed him. Because the identification did not result from an official procedure subject to the strictures of due process, the court properly denied the motion to suppress the victim’s identification of the defendant.

II

The defendant also claims that the court improperly failed to grant his motions for judgment of acquittal on the charge of larceny in the first degree. Specifically, he argues that there was insufficient evidence to prove that he stole the vehicle the night the victim was robbed and that the market value of the stolen vehicle exceeded $10,000.

“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 16, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. State v. Carter, [196 Conn. 36, 44, 490 A.2d 1000 (1985)]. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Carter, supra, 44-45; State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984). . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Citations omitted; internal quotation marks omitted.) State v. Rozmyslowicz, 52 Conn. App. 149, 152-53, 726 A.2d 142 (1999).

A

The defendant claims that there was insufficient evidence that he stole the vehicle on the night the victim was robbed. The defendant argues that except for the two men who remained in the parking lot, any number of people other than the defendant could have stolen the car. According to the defendant, the state’s failure to show that he intended to or did steal the car required that the motion for acquittal on the larceny charge be granted.

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 656, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

On the basis of the evidence presented and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the defendant intentionally stole the vehicle from the victim. The victim testified that the defendant was one of the males who had initially confronted him. The victim was then beaten and told to leave. He did not identify any of the individuals who were still there after he had been beaten nor did he know how many remained when he ran to his car. When the victim returned to the scene of the beating, the defendant was no longer there. The jury could infer from the defendant’s absence that he took the vehicle while the victim was being beaten. Finally, the jury had direct evidence that the defendant was in possession of the vehicle later that same morning. We conclude, therefore, that the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.

B

The defendant also claims that the state failed to prove that the stolen vehicle had a value that exceeded $10,000 at the time it was taken, as is required by § 53a-122 (a) (3).

In estabhshing the value of the stolen items, the state is required to prove “the market value of the property ... at the time and place of the crime . . . .” General Statutes § 53a-121 (a) (1). “Market value has been defined as the price that would in all probability . . . result from fair negotiations, where the seller is willing to sell and the buyer desires to buy.” (Internal quotation marks omitted.) State v. Collette, 199 Conn. 308, 313, 507 A.2d 99 (1986). “The determination of value is a question for the trier of fact.” Id., 314.

Stewart testified that the vehicle that had been stolen was a 1998 grey, four-door Mercury Mystique. Connecticut State Trooper Christopher McCarthy is assigned to the automobile theft unit and places values on cars. He testified that the value of the vehicle at the time of the crime, September, 1997, was $16,235. He also testified that the value of a 1997 Mercury Mystique was $14,775. In assessing the value of the car, McCarthy used a book printed by the National Automobile Dealers Association referred to as the “blue book.”

The defendant claims that McCarthy’s values were for new vehicles rather than for used vehicles, such as the vehicle in the present case. After stating the values, however, McCarthy was asked, “And these values, would the vehicles have been worth this much in September of 1997?” McCarthy replied, “Yes.” McCarthy also stated that the condition of the vehicle could change this evaluation. There was, however, no evidence offered that would reduce its value to an amount less than $10,000. Accordingly, we conclude that there was sufficient evidence for the jury to conclude that the value of the stolen vehicle exceeded $10,000.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is conflicting testimony between the victim and Stewart. The victim testified that he identified the defendant after the defendant got out of the stolen car. Stewart testified that the victim blurted out that the defendant was the one who robbed him when he saw him in the car. While the defendant claims that Stewart initially testified that the victim made no identification, Stewart reread her police report while on the witness stand and corrected her testimony. In either of these scenarios, the victim identified the defendant of his own accord without any action or questions by Stewart or anyone else.

       “In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances.” (Internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 360, 748 A.2d 891 (2000).

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”
      General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . .

       The defendant filed motions for judgment of acquittal after the state’s case-in-chief and after all of the evidence was submitted. “The reviewability of the defendant’s case-in-chief sufficiency claim is barred because of the ‘waiver rule' . . . .” State v. Spillane, 54 Conn. App. 201, 206, 737 A.2d 479, cert. granted on other grounds, 251 Conn. 914, 740 A.2d 866 (1999). “[I]n the defendant’s election, after the denial of his motion for judgment of acquittal at the end of the state’s case-in-chief, to proceed and put on his own evidence, he waived his right to appellate review of the sufficiency of the evidence at end of the slate’s case-in-chief.” Id. Therefore, “ ‘appellate review encompasses the evidence in toto.’ ” Id.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. CHARLES WILLIAMS
    (AC 20043)
    Laveiy, C. J., and Landau and Mihalakos, Js.
    Argued June 1
    officially released September 12, 2000

      Carlos E. Candal, for the appellant (defendant).

      Robin Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Charles Williams, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53U-217. The defendant claims that the trial court improperly (1) denied his motion to suppress, (2) denied his motion for judgment of acquittal because there was insufficient evidence to allow the jury to find that the firearm possessed by the defendant was operable and (3) refused to give a jury instruction on the defense of nonexclusive possession. We agree with the trial court’s denial of the motion to suppress and with its denial of the motion for judgment of acquittal because of insufficient evidence of operability, but we disagree with the court in its refusal to instruct the jury on the defense of nonexclusive possession and, therefore, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On January 26, 1999, Officer Andrew Lawrence of the Hartford police department was driving in his patrol car when he observed the defendant drive through a stop sign. Lawrence activated his lights and siren, called for backup and pursued the defendant. The defendant pulled into a driveway, got out of the car and knocked on the door or rang the doorbell of a home. Soon thereafter, the defendant walked away from the house and proceeded down the street, leaving the car in the driveway.

Lawrence did not follow the defendant. Instead, while monitoring the defendant as he was walking away, Lawrence approached the vehicle and looked through the cai window. Inside, he saw a .38 caliber semiautomatic pistol on the driver’s seat. Once backup officers arrived, Lawrence pursued the defendant while the car was secured by the other officers. Lawrence caught up with the defendant, who had since rounded a street corner, and arrested him.

The state filed a two count information alleging that the defendant used a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b (a) (1) and that the defendant was in criminal possession of a firearm in violation of § 53a-217 (a) (1). On May 25, 1999, the defendant filed a motion to suppress all items seized by the police. The trial court’s signed oral decision on the motion to suppress focused on the issue of whether the “viewing of a weapon in plain view of the driver’s seat of a vehicle [constituted] probable cause to arrest the operator of said vehicle for the crime of weapon in a motor vehicle in violation of [General Statutes] § 29-38 of the Connecticut General Statutes.” The court denied the motion on July 16, 1999.

At the end of the state’s case, the defendant moved for a judgment of acquittal on both counts. The trial court granted the motion as to the first count of using a motor vehicle without the owner’s permission, but denied the motion as to the second count of criminal possession of a firearm. On July 20,1999, the defendant filed a request to charge the jury on the theory of nonexclusive possession, which was denied the following day by the court. The jury returned a guilty verdict on July 21, 1999. On July 29, 1999, the defendant moved for a judgment of acquittal after the verdict. The motion was denied on August 27,1999, and judgment was rendered on the same day. The defendant appealed on September 22, 1999.

I

The defendant first argues that the court improperly denied his motion to suppress. We disagree.

“As a preliminary matter, [o]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . (Internal quotation marks omitted.) State v. Casiano, 55 Conn. App. 582, 586, 740 A.2d 435 (1999), cert. denied, 252 Conn. 942, 747 A.2d 518 (2000), quoting State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).

The defendant claims that Lawrence lacked sufficient probable cause to arrest him because Lawrence never gave consideration as to whether a valid permit had been issued to the defendant before arresting him. A similar argument was addressed by this court thirteen years ago in State v. Lizotte, 11 Conn. App. 11, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). In Lizotte, the defendant was stopped by police for a motor vehicle infraction. Id., 13. During the stop, one of the officers scanned the inside of the passenger compartment with a flashlight as part of a routine search for weapons, and he noticed an ammunition belt partially covered by a towel on the floor of the vehicle. Id., 14. On the basis of their suspicions that a weapon might accompany the ammunition, the police conducted a pat-down search of the defendant. Id. The police lifted the towel and discovered a fully loaded pistol. Id. The defendant was arrested and convicted for carrying a weapon in a motor vehicle. Id., 14-15.

Prior to trial, the defendant in Lizotte moved to suppress the items seized in his vehicle. This court upheld the trial court’s denial of the defendant’s motion to suppress. We concluded that the officers’ observation of the gun belt with ammunition “constituted sufficient facts or circumstances to support a reasonable belief that the defendant was also carrying a weapon in the vehicle in violation of General Statutes § 29-38 . . . .” Id., 19. This court also held that “[i]n determining whether the police officers had probable cause to arrest the defendant for carrying a weapon in a motor vehicle, we also note that probable cause may exist even without ascertaining whether the defendant had a permit to carry the weapon discovered.” (Emphasis added.) Id., citing Adams v. Williams, 407 U.S. 143, 148-49, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Just as police in Lizotte did not have to ascertain whether the defendant had a permit for the weapon for probable cause to have existed, the police in this case also did not have to determine whether the defendant had a permit before arresting him.

“[T]o establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict.” State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). State v. Lizotte, supra, 11 Conn. App. 19, instructs us that police may arrest someone in possession of a weapon without determining whether the possessor has a proper permit, and we decline the defendant’s invitation to depart from that precedent. Thus, we conclude that the court properly denied the defendant’s motion to suppress.

II

The defendant next argues that the court improperly denied his motion for judgment of acquittal. The defendant contends that insufficient evidence existed to show that the weapon found in the vehicle was operable. Therefore, the defendant reasons, the court improperly denied his motion for judgment of acquittal on the charge of criminal possession of a firearm in violation of § 53a-217 (a) (1). We disagree.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. State v. Duhan, 194 Conn. 347, 355, 481 A.2d 48 (1984); State v. Heinz, supra, 625. The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sus-taming the jury’s verdict.” State v. Candito, 4 Conn. App. 154, 156-57, 493 A.2d 250 (1985).

Additional facts are necessary to resolve this issue. When the weapon was discovered on the driver’s seat of the car, it was jammed. A bullet, which had not been properly ejected, was lodged in the weapon’s chamber.

Mike Gaffney, an officer with the Hartford police department’s evidentiary services unit, testified that he dislodged the bullet by pulling the slide back on the gun and tapping the bottom. He also testified that it was possible for another bullet to have come up underneath the jammed bullet. Tom Wroniak, an officer with the Hartford police department’s career development division’s firearms training unit, testified that a jammed weapon is a temporary problem and does not necessarily render a weapon inoperable. Wroniak also successfully test-fired the weapon twice and the weapon did not jam.

Sufficient evidence was presented for the jury to determine that the weapon found was operable for purposes of § 53a-217 (a) (1). The jam in the weapon was merely temporary and could be easily fixed. Indeed, as Gaffney testified, it was possible that a second bullet could have entered the chamber underneath the jammed bullet. In a similar case where a weapon was found jammed but subsequently test-fired successfully, this court concluded that sufficient evidence existed to support a conviction on the charge of carrying a pistol without a permit in violation of General Statutes § 29-35. State v. Zayas, 3 Conn. App. 289, 299, 489 A.2d 380, cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985); see also annot, 81 A.L.R.4th 745 (1990).

Cumulatively, the evidence before the jury was sufficient to justify the verdict of guilty beyond a reasonable doubt. Even if contrary inferences existed that could have led the jury to believe that the weapon was inoperable, the jury was not barred from drawing inferences consistent with guilt where, as here, sufficient evidence existed to do so. State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994). We therefore conclude that the court’s denial of the defendant’s motion for judgment of acquittal was proper.

HI

The defendant contends that the court improperly refused to instruct the jury on the theory of nonexclusive possession. We agree.

A

The state claims that we should not review this claim because it was not properly preserved for appeal. We disagree.

Requests to charge and exceptions to them are governed by Practice Book §§ 42-18 and 42-16. Practice Book § 42-18 (a) provides that when requests to charge are made they shall, among other things, contain “the evidence to which the proposition would apply. . . .” Practice Book § 42-16 provides in part that an appellate court is not bound to review a trial court’s failure to give an instruction unless the matter “is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .” The state claims that the defendant has failed to meet both of these requirements.

Regarding Practice Book § 42-18, although the defendant’s written request to charge did not state the facts that he believed supported the requested instruction, the court did have the supporting facts for the charge before it, and the defendant’s counsel presented oral argument before the court outlining in detail the factual basis for the defendant’s request to charge. Regarding Practice Book § 42-16, the defendant’s counsel did not present an exception immediately after the charge was given. Rather, he excepted to the charge before it was given, at the time the court denied his request to include a nonexclusive possession instruction.

We conclude that the defendant has met, or substantially met, the requirements of both of the rules of practice. Practice Book § 42-16, in stating that an appellate court “shall not be bound to consider error,” is permissive, not mandatory. It merely frees this court from the obligation to consider an issue where its requirements are not fulfilled. We choose to consider the defendant’s challenge in this case even though we are not bound to do so.

The defendant has not technically complied with Practice Book § 42-18. We will, however, hear the defendant’s claim despite his noncompliance. His oral argument to the court on the record, immediately before the court refused his requested instruction, fulfilled the purpose of the rule of practice.

This practice, the nonpenalization of technical noncompliance with the rules of practice, is not without support. In State v. Deptula, 31 Conn. App. 140, 142, 623 A.2d 525 (1993), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994), the defendant claimed that the trial court improperly failed to charge the jury on self-defense. The state challenged the review of that issue on appeal because of the defendant’s noncompliance with Practice Book § 852, now § 42-16. State v. Deptula, supra, 144. Despite the defendant’s noncompliance, the Deptula court reviewed the defendant’s claim on the merits. Id., 147.

Although the defendant in Deptula took an exception to the charge after it was given, defense counsel did not state the grounds for the objection at the time it was given. The state claimed that the defendant’s exception was insufficient to apprise the trial court of the deficiency in the charge. A careful reading of the transcript in that case showed that the defendant’s counsel and the trial court understood the facts relied on for the requested self-defense charge. The Deptula court reasoned in part that in light of defense counsel’s previous statement during an objection to the introduction of other evidence, the trial court understood the basis for the defendant’s exception to the charge. The court considered the rule of practice that requires counsel to state the grounds for an exception satisfied, stating that “the purpose for that rule has been satisfied in this case because the trial court understood the ground for the objection.” Id., 146. The trial court here thought that the defense of nonexclusive possession did not have sufficient factual support and refused to give the requested charge on that defense. We reverse the judgment because the charge must be given any time the facts are in evidence.

We do not intend by our conclusion here to send a signal that the rules of practice are optional and apply only on the whim of counsel. Indeed, we are mindful that in many cases “a trial court’s awareness of the factual basis for a requested charge . . . [does not constitute] an acceptable alternative to a party’s compliance with the rules of practice.” State v. Vega, 48 Conn. App. 178, 185, 709 A.2d 28 (1998); see also State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). “[W]hile we would prefer it if the defendant’s counsel had drafted a more thorough request to charge, or if he had made a more specific exception, we will review this claim because the defendant has substantially complied with the requirements of Practice Book § 852 [now § 42-16] and the court understood the grounds for the objection. There is no need to hold the defendant to the strict requirement where, as here, the purpose of the rule has been satisfied.” State v. Deptula, supra, 31 Conn. App. 147. We follow Deptula and review the defendant’s claim on its merits.

B

Regarding the court’s refusal to give the defendant’s proposed jury instruction, “[i]t is a well established principle that a defendant is entitled to have the jury correctly and adequately instructed on the pertinent principles of substantive law. . . . The charge must be correct in the law, adapted to the issues and sufficient to guide the jury. . . . The primary purpose of the charge to the jury is to assist them in applying the law correctly to the facts which they find to be established. ... On review, we examine the charge to see if it fairly presents the case to the jury in such a way that injustice was not done under the law to the legal rights of the defendant.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 560-61, 747 A.2d 847 (2000). “The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” Velardi v. Selwitz, 165 Conn. 635, 637, 345 A.2d 527 (1974).

The specific issue here is whether the court should have provided the requested jury instruction on nonexclusive possession. The quantum of proof that the defendant must offer to be entitled to a jury instruction on a particular theory of defense is minimal. “As a general rule, a defendant is entitled to have instructions on a defense for which there is evidence produced at trial to justify the instruction, no matter how weak or incredible the claim. State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986).” State v. Varszegi, 236 Conn. 266, 282, 673 A.2d 90 (1996).

Additional facts are necessary to resolve this issue. At trial, the defendant sought to dispute the issue that the weapon found in the car was in his exclusive possession. At the time of his arrest, the defendant was driving a rental car owned by National Car Rental. Tammy Dinatale, a representative of National Car Rental, testified that at the time the weapon was found in the car, the vehicle was rented to another individual, Kirk Scott.

The defense also presented Madeline Williams, the defendant’s sister, as a witness. Williams testified as follows. At approximately 9 a.m. on the morning of the defendant’s arrest, Williams drove herself and the defendant out to breakfast in her own car. Afterwards, the defendant asked Williams to bring him to the house of a friend, Scott, to get a compact disc. Williams and the defendant drove to Scott’s house, and Williams accompanied the defendant to Scott’s residence. Scott handed the defendant a key to the rental car. Williams and the defendant then proceeded to the rental car to retrieve the compact disc from the vehicle. At that point, before Williams and the defendant reached the vehicle, the officer approached the defendant and arrested him.

This testimony contradicted the sequence of events offered by the state and raised the issue of the defense of nonexclusive possession. As a result, it is an alternative view of events that may be considered by the jury that places the question of exclusive ownership in dispute. The defense sought to show, and the jury may have believed, that the defendant did not have exclusive possession of the weapon because Scott was in constructive possession of the car and, thus, the weapon as well. This foundation provided by the defendant is sufficient to require an instruction on nonexclusive possession.

If a defendant raises a defense to a charge and provides any evidence whatsoever to support that defense, the trial court must provide an instruction on that issue if the defendant requests it, and the failure to do so constitutes reversible error. State v. Richardson, 40 Conn. App. 526, 531-33, 671 A.2d 840 (reversing judgment of trial court for failure to charge on defense), cert. denied, 237 Conn. 905, 674 A.2d 1333, cert. denied, 237 Conn. 910, 675 A.2d 457, cert. denied, 519 U.S. 902, 117 S. Ct. 257, 136 L. Ed. 2d 183 (1996). The testimony of Williams raised the issue of nonexclusive possession. Whether the evidence introduced established that the defendant did not have exclusive possession of the weapon is a question for the jury, not the trial court, to decide. See id., 532; see also State v. Figueroa, 235 Conn. 145, 179, 665 A.2d 63 (1995). We therefore conclude that there existed a foundation in the evidence that required the court to instruct the jury on the defense of nonexclusive possession. The court’s failure to instruct on the defense constitutes a cause for reversal.

We agree with the court as to the existence of probable cause and that there was sufficient evidence as to the operability of the weapon, but we reverse the judgment of conviction because of the court’s failure to charge on the defense of nonexclusive possession and remand the case for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and (1) has been convicted of ... a class D felony . . . .” According to the substitute information, the defendant was convicted of a class D felony, namely, burglary in the third degree, prior to this judgment.

       Although the defendant’s motion to suppress challenged the arrest and search as unlawful, the trial court noted that if the answer to the question of whether viewing the weapon in plain view constituted probable cause to arrest the operator was yes, then the defendant had conceded that the search of his person was lawful incident to his arrest. The court stated that “it follows that the search of the vehicle and recovery of the pistol from the driver’s seat would also be lawful.” Accordingly, the plain view issue was the only question addressed by the court in its oral decision.

       The following discussion occurred between the court, defense counsel and the assistant state’s attorney:
      “The Court: All right. Request to charge. Record should reflect we had a charging conference yesterday afternoon after we concluded the court session of the trial. The court is in receipt of defense counsel’s request to charge. The state did not file any.
      “[Assistant State’s Attorney]: Correct.
      “The Court: All right. I have reviewed your request to charge and I had indicated to you in chambers, Mr. Caudal [defense counsel], that the court is going to proceed with the jury charge as outlined in this Connecticut Selective Jury Criminal Manual.
      “And I indicated to you that we review those jury charges and if there was anything that was significantly different from what you had put in your request than those that existed in the manual to bring them to my attention this morning and we would review them.
      “[Defense Counsel]: Yes, Your Honor. I would just request the court in considering what we submitted regarding exclusive possession, to consider allowing that request, that instruction to be read. And looking up case law, specifically Evans v. United States at 257 F.2d 121 at page 128—excuse me—128, Ninth Circuit, cert. denied, then 358 United States 866, a 1958 case, as well as [annot.] 56 A.L.R.3d 948, the year 1974, which reads—also including State v. Alphonso and State v. Watson.

        “State v. Alphonso which the court instructed the jury that the defendant was not in exclusive possession of the car where the narcotics were found at the time. In that case, that he was apprehended it may not be inferred that the defendant knew the presence of the narcotics and had control over them unless, one, there were incriminating statements or, two, facts or circumstances tending to buttress such an inference.
      “The facts in this case—well, also reading State v. Watson, which says it cannot be logically and reasonably inferred that the occupant of a motor vehicle knew the presence of an unregistered weapon simply on the fact that he was an occupant. Presence alone unilluminated by other facts is insufficient proof of possession.
      “In this case, Your Honor, the evidence has shown that somebody else besides my client had access to that car. The National Car Rental agent came in and testified that a gentleman by the name of Kirk Scott had rented that car, legally had signed for it, was recognized as a legal person, had an ID and had the right to use that car from January 13 til January—at the time of this case at least if not further.
      “And there’s also evidence that there were keys to that car and there was no evidence that somebody was not supposed to drive that car. There was evidence that somebody had given my client keys to that car. You heard from our witness, Miss Williams, who testified that he didn’t even make it to the car, but the fact is that she testified under oath that she saw Mr. Scott who had the keys at a previous point before my client was given them. Obviously he had access to that car.
      “And I would submit that this is similar to a case where the police search a home under a warrant and find narcotics or contraband, an illegal substance in a room of a house and the person happens to be staying there over night or even a week or two weeks. Just because he’s there and nobody else is there in that room at the time doesn’t necessarily mean that nobody else had access to that room. And just like somebody would—you could present evidence in that case that somebody had a legal right as a tenant to be or had ownership to that house and access to that room.
      “In that case, you would have insufficient evidence alone by the defendant’s mere presence in that room to infer that he had exclusive possession to access to that room. Similarly, in this case, my client might have had the keys but somebody else had the legal right to access the car. And I think that it would be fairer for the jury to hear that they cannot infer that he exercised dominion and control over that weapon merely because he was found with the keys.
      “The Court: Well, what I am going to charge them with is that possession means intentional dominion and control over the firearm accompanied by knowledge of its character. Mere presence in the vicinity of the firearm, however, is not enough to establish possession. And if so, if that’s what your claim is that will be covered in the charge that I plan on giving. Based on what I have just read to you, which is what the court intends to charge under the definition of possession, do you still want to pursue your exclusive possession request?
      “[Defense Counsel]: And perhaps if the court would consider including the fact that no inference can be drawn from mere presence. Is that what’s—
      “The Court: Well, no. I am going to charge mere presence in the vicinity of a firearm, however, is not enough to establish possession. So to that end I am going to deny the request, your specific request to charge under the exclusive possession section because I think it is adequately covered in the charge that I am going to give under the elements of the crime.
      “[Defense Counsel]: Thank you, Your Honor. I’ll just, for the record, I will state an exception.
      “The Court: Okay. Mr. Ferko [assistant state’s attorney], do you have anything?
      “[Assistant State’s Attorney]: No, Your Honor.
      “The Court: Is that your only request?
      “[Defense Counsel]: Yes, Your Honor.”


author: FOTI, J.

text:
    SOUTHBURY LAND TRUST, INC., ET AL. v. WILLIAM ANDRICOVICH ET AL.
    (AC 19635)
    Foti, Spear and Mihalakos, Js.
    Argued June 7
    officially released September 12, 2000

      Neil R. Marcus, for the appellant (named plaintiff).

      Martin A. Rader, Jr., with whom was John H. Van Lenten, for the appellees (defendants).
   Opinion

FOTI, J.

This case concerns the construction of a conservation covenant that was executed in favor of the plaintiff Southbury Land Trust, Inc., in connection with a rezoning of a parcel of land now owned by the defendants, William Andricovich and Sabina Andricov-ich. The plaintiff appeals from the trial court’s judgment interpreting the conservation covenant to allow the construction of a single-family home on the defendants’ land. The plaintiff claims that (1) the court improperly concluded that the covenant permits the proposed construction of a detached single-family dwelling on the subject parcel and (2) even if the court properly concluded that the covenant permits the construction of a detached single-family home, the location of the proposed construction would constitute a violation of the covenant. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendants own an approximately nine acre farm in Southbury. This parcel of land is also known as “parcel C” of planned development district number five (district). An amendment to the zoning regulations of the town of Southbury, which went into effect in November, 1983, created the district as part of a land development deal.

The amendment required that as part of the approval process for the development project, the owner of parcel C execute a conservation easement that would perpetually restrict the use of parcel C to those uses set out in sections 4.1.1 through 4.1.7 of the amendment. Thereafter, the owners of parcel C executed a conservation easement that, among other things, adopted almost verbatim the restrictions set forth in sections 4.1.2 and 4.1.3 of the amendment. Section two of the conservation easement, the interpretation of which is the subject of this appeal, provides in relevant part: “[T]o restrict Parcel C to its agricultural and open space use, within Parcel C land, buildings and other structures shall be used for the following purposes and no other:

“(a) Farms, truck gardens, forestry and keeping of livestock and poultry.

“(b) A single detached dwelling for one (1) family and not more than (1) such dwelling per lot, except as provided in subparagraph c below.

“(c) An additional dwelling unit for one family in a dwelling or another building, provided that the same is used only as a residence for one or more members of the family of persons directly employed in the operation of the uses in subparagraph a above on Parcel C of [the district]. . . .” (Emphasis added.)

In the fall of 1998, the defendants obtained a zoning permit to construct on parcel C a detached single-family home to be occupied by Sabina Andricovich’s son and his family. The plaintiff, a nonprofit corporation dedicated to conserving natural areas in Southbury, brought this action, claiming that the construction of an additional single-family home would violate the terms of the conservation easement. The trial court found that the construction of a detached single-family dwelling was consistent with the exception set out in § 2 (c) of the conservation easement.

I

The plaintiff claims first that the court improperly concluded that the conservation easement permits the construction of a second detached single-family home on parcel C. We disagree with the plaintiff.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Southeastern Connecticut Regional Resources Recovery Authority v. Dept. of Public Utility Control, 244 Conn. 280, 290, 709 A.2d 549 (1998). Because the conservation easement here contains definitive contract language, our review is plenary.

“Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). Although the words in a restrictive covenant are to be interpreted in their ordinary and popular sense, if any of the words have acquired a particular or special meaning in the particular relationship in which they appear, such particular or special meaning will control. Katsoff v. Lucertini, 141 Conn. 74, 77, 103 A.2d 812 (1954).

The words at issue here are found in the exception set forth in § 2 (c) of the conservation easement: “An additional dwelling unit for one family in a dwelling or another building, provided that the same is used [by a family member of those working on the farm].” (Emphasis added.) The plaintiff argues that the words “additional dwelling unit” as used in the easement mean a single-family apartment attached to or constructed within the existing farmhouse or another existing farm building. The defendants maintain that the language does not require that the “dwelling unit” be attached to an already existing structure, but allows for the construction of a detached single-family dwelling. We agree with the defendants.

As stated previously, the language from the conservation easement was taken directly from the amendment that created the district, which was incorporated into the zoning regulations of the town of Southbury. Southbury’s town code defines dwelling unit: “A ‘dwelling unit’ is a building or apart of a building designed for occupancy, and so occupied, by one (1) family. . . .” (Emphasis added.)

The plaintiff argues, in effect, that we disregard the full definition of dwelling unit and find that a dwelling unit must be only “a part of a building” and not a detached, stand-alone “building.” Recognizing that “[a] restrictive covenant must be narrowly construed and ought not to be extended by implication”; 5011 Community Organization v. Harris, 16 Conn. App. 537, 541, 548 A.2d 9 (1988); we decline to adopt the plaintiffs narrow definition of “dwelling unit.” Applying the definition found in the very code from which the language in the conservation easement derived, we conclude that the term “dwelling unit” applies to a detached, standalone building, such as a single-family home. The exception set forth in § 2 (c) of the conservation easement, therefore, clearly permits the defendants to construct a detached single-family home on parcel C.

We find further support for our conclusion in the absence of certain language from the easement. If the drafters had intended to restrict new construction such that any new dwelling unit would have to be built as part of an already existing structure, they easily could have accomplished this by adding certain language to the restriction. For instance, the exception in § 2 (c) could have stated that the additional dwelling unit for one family be “in an existing dwelling or another existing building.” The language chosen by the drafters, however, does not require that any new dwelling unit be built as part of an existing building. On the basis of the language chosen by the drafters, we conclude that the drafters’ intent was to allow the construction of a detached dwelling.

The plain language of § 2 (c) and (b) of the conservation easement clearly allows for the construction of a detached single-family home on parcel C, provided the other requirements of the restriction are met. Accordingly, we decline to infer that any new dwelling unit constructed on parcel C must be attached to one of the already existing buildings.

The plaintiff argues that by reading “dwelling unit” to include a detached single-family home, the exception set forth in § 2 (c) swallows the rule set out in § 2 (b) of the easement. We disagree with the plaintiffs argument and find that the general rule against new construction can logically coexist with the exception allowing new construction in limited circumstances.

Clearly, the drafters wanted to preserve the pastoral aspects of parcel C and sought to stave off future development of the land. The drafters recognized, however, that future generations farming parcel C might want to have their sons or daughters live with them on the farm, but in a separate dwelling unit. The drafters thus allowed for the construction of one more home on the land, but only on the condition that the inhabitants of that home be relatives of those working the farm. The drafters likely rationalized that by restricting ownership of any new home on parcel C to relatives of those farming the land the new inhabitants would have a greater connection to the land and would be more likely to take pains to preserve the pastoral setting of the land. The restrictions and exception set out in § 2 (b) and (c) go more to the use, rather than the design, of any structures built on the land. If the drafters had intended to control the physical design of any new structures on the land, they easily could have done so. The new home on parcel C will be inhabited by farmers and relatives of those farmers, and the construction of that home is consistent with § 2 of the conservation easement.

The plaintiff also argues that the court failed to consider the conservation easement as a whole and, therefore, failed to consider the drafters’ intent. First, we note that there is nothing in the record to suggest that the court failed to consider the instrument as a whole. Second, our own review of the conservation easement, in its entirety, leads us to conclude that the construction of a detached single-family home to be occupied by the relatives of working farmers is not, on its face, inconsistent with the drafters’ intent to preserve a working farm.

II

The plaintiff claims next that the court improperly rejected its argument that even if a second house is permitted under the conservation easement, the proposed location of the house constituted a violation of the easement by obstructing visual access to, and the view of, parcel C. This claim was not addressed or decided by the trial court, and we, therefore, decline to review it. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998) (“because [appellate] review is limited to matters in the record, we will not address issues not decided by the trial court”); see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims “neither addressed nor decided” by trial court are not properly before appellate tribunal).

It is the appellant’s burden to provide an adequate record for review. It is, therefore, the responsibility of the appellant to move for an articulation of the record or to ask the trial judge to rule on an overlooked matter. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 53. The plaintiff did not file a motion for articulation, and we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants’ motion to dismiss the action as to the plaintiff Carolyn K. Longstreth was granted, and, therefore, we refer in this opinion to the named plaintiff as the plaintiff.

       The conservation easement was to be a conservation restriction within the meaning of General Statutes § 47-42a (a), which defines a conservation restriction as “a limitation, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land described therein or in any order of taking such land whose purpose is to retain land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming, forest or open space use.”

       At the time the conservation easement was executed, the owners of the land approved as the district were Arthur Olsen and Cindy Olsen.

       The term “detached” indicates that the home is to be constructed as a stand alone unit, not connected to any of the buildings already in existence on parcel C.

       It is not disputed that the new home will be inhabited by family members of persons directly employed in the operation of the farm.

       The language in the easement here clearly allows for the construction of a detached home. We note, however, that even if the language were considered ambiguous, any doubt would be construed against the covenant. 5011 Community Organization v. Harris, supra, 16 Conn. App. 541.

         In fact, in its decision the court stated that “there are three principles of law to be employed by the court in construction [of a] restrictive covenant such as this one .... And the third rule of law is that the intent is to be based on a reading of the entire context of the language used, not just a single clause.”

       Of course, we can imagine circumstances in which the construction of a single-family home on parcel C would violate the conservation agreement. If, for example, a very large, contemporary mansion that obscured the pastoral view of the farm was built in the middle of parcel C, then the spirit of the easement would clearly be undermined. The plaintiff most likely would be able to enjoin the construction of such a house on the ground that it would undermine the entire purpose of the easement. In and of itself, however, the construction of a single-family home on parcel C is not inconsistent with the overall intent of the easement and is permitted by § 2 (c).

       The plaintiff argues that although the court did not address this claim there is adequate evidence in the record for this court to conduct a de novo review of the claim. According to the plaintiff, by reading the language of the conservation easement and looking at a map of parcel C and the proposed construction this court can determine whether the proposed construction undermines the overall goal of the easement.
      We disagree with the plaintiff. Whether the proposed construction will obstruct the view or undermine the pastoral nature of parcel C is a determination best made by the finder of fact. Such a determination might even require the fad finder to make a visual observation of the subject property. See, e.g., Castonguay v. Plourde, 46 Conn. App. 251, 262, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). Because the record is devoid of any such findings, this claim is ill suited for appellate review.