text:
    Solomon Cantor v. State Board of Electrical Examiners
    (2068)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued February 5
    decision released May 7, 1985

      Robert T. Statchen, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      David F. Waters, for the appellee (plaintiff).
   Borden, J.

This is an appeal from the judgment of the trial court reversing the decision of the defendant board of electrical examiners to suspend the contractor’s license of the plaintiff for one year.

After a hearing on November 18, 1981, the board found the following facts: On April 7,1981, Craig Trask and Bruce Trask were employed by the plaintiff as electrical workers. Neither Craig nor Bruce was licensed by the board to do electrical work but each was registered with the board as an apprentice. Both Craig and Bruce were working under the direct supervision and in the presence of a licensed contractor or journeyman as required for the employment of apprentices under a board-promulgated regulation. Regs., Conn. State Agencies § 20-332-15.

Craig completed his four year apprenticeship on June 25,1976, enabling him to be examined for a journeyman’s license at that time; General Statutes § 20-334a (a) (2) (A); but he did not take the examination until December 12,1980. He failed that examination and had not reapplied to take another.

Bruce completed his apprenticeship on March 4,1978, but did not take an examination until November 13, 1980. He failed that examination and was scheduled to take another on April 20, 1981.

The board found that on April 7, 1981, the plaintiff had violated General Statutes § 20-338a by “failing to cause electrical work to be performed by licensed persons,” and General Statutes § 20-341 by “wilfully employing persons who do not have a license to perform electrical work.” The board suspended the plaintiff’s license for one year from March 1,1982. General Statutes § 20-334.

The plaintiff appealed to the Superior Court on a number of grounds. See General Statutes § 4-183. The court set aside the board’s decision, holding that under the then governing statutes and regulations, Craig Trask and Bruce Trask were apprentices and that their employment as apprentices was not prohibited by statute. The board appealed. We find no error.

The board suggests that apprentices were required to be licensed within one year of completing the practical component of their apprenticeships and that the employment of persons who had completed the four year component but who had not successfully taken a licensure examination was unlawful. The statutes governing at the time demonstrate, to the contrary, that those in this position were still apprentices and could be employed as apprentices within regulated limits.

General Statutes (Rev. to 1981) § 20-334a (a) (2) (A) stated the minimum requirements for an applicant for a journeyman’s license: “An unlimited journeyman’s license may be issued to any person who has completed a bona fide apprenticeship program, has not less than four years experience in the trade for which he seeks a license, and has demonstrated his competency to perform all services included in the trade for which a license is sought . . . .” (Emphasis added.) General Statutes (Rev. to 1981) § 20-333 explained that an apprentice who is a candidate for a journeyman’s license who fails that examination three successive times may not take the examination for at least one year from the date of the last examination.

While these statutes are not a model of clarity, they were the only provisions even tangentially addressing the issue of the length of time one could remain an apprentice. Because they are penal in nature, by defining the situations in which a contractor’s license might be revoked, and by providing for a fine for violations; General Statutes § 20-341; they must be strictly construed. Brazo v. Real Estate Commission, 177 Conn. 515, 526, 418 A.2d 883 (1979); Fitzpatrick’s Inc. v. Commissioner of Motor Vehicles, 165 Conn. 416, 419, 334 A.2d 476 (1973). The words used in these statutes indicate that an apprentice retained his status as an apprentice beyond one year after completing the four year training program even if he or she did not pass the journeyman’s examination. If this were not so, the provision of General Statutes § 20-333 requiring apprentices to take the exam one year after failing three successive examinations would make no sense. A nonsensical meaning cannot be attributed to the statute; Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985); and the court cannot extend the statute “by implication to create liability which no language of the act purports to create.” State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). The plain meaning of § 20-333 was that one was still employable as an apprentice one year after failing three examinations.

The defendant’s reading of § 20-333 to imply a “good faith” standard on the part of the apprentice continuously to retake the exam to show his intent to become licensed is without basis. Nowhere in the applicable statutes was it required that an apprentice take each and every examination, without exception, until he passed in order to remain an apprentice; in fact, § 20-333 prohibited an apprentice from taking any of the examinations given for one year if three successive examinations were taken and failed. Nor is there any indication that this general provision, which applies to all applicants for professional licensure examinations, was enacted for the purpose of manifesting the intent to remain an apprentice.

We also cannot disregard the broad term, “not less than four years experience,” in § 20-334a (a) (2) (A), as the defendant would have us do. This phrase, construed with common sense and in the context of § 20-333 and the entire regulatory scheme; Shelby Mutual Ins. Co. v. Della Ghelfa, supra; suggests that one could retain his status beyond the four year training if one continued working in the limited domain of an apprentice and took the examination when he or she felt prepared. The legislative intent of these statutes cannot be distorted to fit into the defendant’s idea of when an apprenticeship should end. “The [board’s] remedy lies with the General Assembly, not with the court.” Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975).

In fact, the legislature did act, providing further evidence of the statutory imbroglio which existed at the time the plaintiff’s license was suspended. In 1983, the legislature amended these statutes in an attempt to clarify the ambiguities in question here. Public Acts 1983, No. 83-487 §§ 14, 15, 16. These amendments, although not clearing up all the potential problems, clarified when an apprentice must apply to take the examination, how often an apprentice must take the examination if he does not pass the first examination, and when the status of apprentice expires if examinations are not taken. General Statutes §§ 20-333 (a), 20-334a (a) (2) (A), and 20-334a (a) (5). None of these requirements was expressed in the former statutes; the plaintiff could not be expected to know what was expected of him without any statutory or regulatory guidance. He could not know in 1981 what the legislature did not attempt to clarify until 1983. The statutes as they existed in 1981 classified the plaintiff’s employees as apprentices even though they might not now be so classified. We agree with the trial court, therefore, that these employees were lawfully employed by the plaintiff as apprentices in 1981 under the former statutes and that the plaintiff’s license was wrongfully revoked.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       Apprentices are defined as “anyone indentured to the Connecticut state apprentice training division of the labor department or registered with the appropriate state examining board for the purpose of learning a skilled trade.” General Statutes § 20-330 (6).

       General Statutes (Rev. to 1981) § 20-333, entitled “Examinations,” generally provided for the scheduling of examinations by the appropriate licensing boards. The pertinent part of this statute provides as follows: “Any applicant who, for three successive times, fails to pass such an examination may not be examined for at least one year from the date of his last examination.”

       The extent of the confusion surrounding the issue of whether the plaintiffs employees were legally employable as apprentices is also demonstrated by the evidence, presented to the trial court, that the plaintiff requested that the board interpret these statutes for him at an informal hearing on June 8,1981, and by a request for a declaratory ruling on June 11,1981, but no response was ever received. There was also evidence that there was confusion within the department of consumer protection itself and among electrical inspectors regarding these statutes, and the defendant fairly conceded at oral argument before this court that the interpretation urged by the defendant was an unwritten regulation at the time in question. Although we hold that the plaintiffs employees were apprentices, under the then governing statutes, we note also that these facts indicate the uncertainty of the definition of an apprentice and the inability of the plaintiff to know if in fact his employees were lawfully employed by him.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Barbara Ezikovich v. Caren Linden et al.
    (10923)
    Dupont, C. J., Daly and Heiman, Js.
    Argued November 4, 1992 —
    decision released January 12, 1993

      Karen L. Murdoch, with whom was Wesley W. Horton, for the appellant (plaintiff).

      Theodore A. Harris, for the appellees (defendants).
   Daly, J.

The plaintiff appeals from the trial court’s judgment, rendered pursuant to the attorney trial referee’s report, denying the plaintiff’s request for an injunction prohibiting the defendants, Robert and Caren Linden, from overburdening the defendants’ easement over the plaintiff’s property and granting the defendants’ request on their counterclaim to enjoin the plaintiff from interfering with their use of the easement. The plaintiff had asked the court to bar the defendants’ construction and maintenance of a boat storage rack and other structures on her properly while the defendants had asked the court to prohibit any further interference by the plaintiff with the use and maintenance of these structures.

The following facts are relevant to this appeal. The plaintiff owns two adjacent tracts of land located on the east side of Quarry Dock Road in the town of East Lyme. Both tracts extend from the road to the Niantic River. The plaintiff’s house is situated on the first tract, which is north of the second tract. The defendants own property on the west side of Quarry Dock Road and possess an easement over the second tract for access to the Niantic River.

The ehains of title for both parties originate with the grantor, Clara S. Pulsifer. She conveyed the first and second tracts of land on the east side of Quarry Dock Road to Michael D. Schultz, the plaintiffs predecessor in interest, by warranty deed dated April 20,1972. At that time, no structures were built on or attached to the property. The 1972 deed from Pulsifer to Schultz provided for the following reservation: “Reserving to the grantor, her heirs and assigns forever the right of way over the second tract herein from Quarry Dock Road to the Niantic River for ingress and egress to the Niantic River, and reserving the tract and the use of said second tract for general boating purposes, as an appurtenance to the land of the grantor located west of Quarry Dock Road. Provided further that no building shall be constructed on said second tract and no uses shall be permitted thereon which interfere with the right of way and uses thereof reserved by the grantor herein.” By warranty deed dated April 24, 1981, Schultz conveyed both tracts to the plaintiff. The deed from Schultz to the plaintiff referred to the reservations in favor of Pulsifer, her heirs and assigns in the deed from Pulsifer to Schultz.

After conveying the two tracts to Schultz, Pulsifer still owned property comprising approximately sixty-five acres on the west side of Quarry Dock Road. Pulsifer conveyed the sixty-five acres of land to a developer, William H. Wilson, on June 23,1973. That deed conveyed to Wilson “the right and easement to pass and repass over [the second tract except for a strip twenty feet wide that runs along the southerly line of the second tract] for boating and other waterfront purposes.” Wilson subsequently subdivided the sixty-five acre tract and lot seven of the subdivision was ultimately conveyed to Caren Linden by deed dated July 10,1981. That deed conveyed “the right and easement to pass and repass over [the second tract except for a strip twenty feet wide that runs along the southerly line of the second tract] and to use the waterfront adjoining said premises for boating and other waterfront purposes.” It further provided “that the easements described herein will be for the benefit of the Grantees, their successors and assigns and will run with the land.” Since the conveyance of the second tract from Pulsifer to Schultz, owners of the dominant tenements have used the second tract by walking to and from the river, enjoying the view and engaging in activities such as fishing and swimming.

Robert Linden began using the right-of-way conveyed to his wife to transport rowing shells to the river’s edge by vehicle but had difficulty launching them. To solve this problem, he had a floating dock constructed at the edge of the second tract. A walkway to that dock was also built. Initially, he stored the shells on the ground near the dock but then constructed a rack that is visible from the plaintiff’s house on the first tract. The plaintiff dismantled the rack in November, 1990, and the defendants built another one. The plaintiff had the second one dismantled in April, 1991.

The attorney trial referee concluded that Pulsifer’s deed reserved the use of the second tract for general boating purposes and riparian rights and uses to her heirs and assigns, including the defendants. The attorney trial referee determined that construction of a dock and a storage rack fell within the ambit of this reservation and, therefore, recommended judgment for the defendants on both the complaint and the counterclaim. The trial court accepted the findings of the attorney trial referee and enjoined the plaintiff from obstructing or interfering with the defendants’ passage or repassage over the easement premises from and to Quarry Dock Road and the Niantic River. The plaintiff was enjoined from interfering with or tearing down the floating dock, walkway or shell storage rack. This appeal ensued.

The only issue before us is whether the maintenance of the shell storage rack is a permissible use of the easement. We disagree with the attorney trial referee’s conclusion that the defendants’ construction and maintenance of the shell storage rack was a permissible use.

“The rule is well established that the owner of an easement is entitled to relief upon a showing that he will be disturbed or obstructed in the exercise of his right. . . . The granting or refusing of injunctive relief, however, rests within the sound discretion of the trial court and its action will not be disturbed unless it has abused its discretion.” (Citations omitted.) Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440, 440 A.2d 935 (1981).

“The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. . . . This is not to overlook, however, that [t]he owner of an easement has all rights incident or necessary to its proper enjoyment, [although] nothing more.” (Citations omitted; internal quotation marks omitted.) Kuras v. Kope, 205 Conn. 332, 341-42, 533 A.2d 1202 (1987).

To determine the nature of an easement created by deed, we must discern the intention of the parties to the deed by considering the language of the deed, the situation of the property and the surrounding circumstances. Lago v. Guerrette, 219 Conn. 262, 267-68, 592 A.2d 939 (1991). We give the language of the easement its ordinary import where nothing in the situation or surrounding circumstances indicates a contrary intent. Id., 268; American Brass Co. v. Serra, 104 Conn. 139, 142, 132 A. 565 (1926). “Any ambiguity in the instrument creating an easement, in a case of reasonable doubt, will be construed in favor of the grantee. Gager v. Carlson, 146 Conn. 288, 298, 150 A.2d 302 (1959). Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982). The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . and its interpretation presents] a question of law. . . . Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). . . . Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982).” (Internal quotation marks omitted.) Lago v. Guerrette, supra.

“In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view.” (Internal quotation marks omitted.) Peck v. Mackowsky, 85 Conn. 190, 194, 82 A. 199 (1912). Because our decision turns primarily on the construction of the deed, as opposed to the credibility of witnesses, we are not required to give the customary deference to the factual inferences made in the trial court and may determine the issue of intent as a matter of law. Lago v. Guerrette, supra; Expressway Associates II v. Friendly Ice Cream Corporation, 22 Conn. App. 124, 127, 576 A.2d 575 (1990), rev’d in part on other grounds, 218 Conn. 474, 590 A.2d 431 (1991); Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122 (1989); Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984).

The deed from Pulsifer to Schultz, the plaintiff’s predecessor in interest, reserved an easement for “general boating purposes.” Pulsifer’s later conveyance of the sixty-five acres gave Wilson, his heirs and assigns an easement over the second tract “for boating and other waterfront purposes.” This language is binding on the plaintiff under the reservations in her chain of title originating with Pulsifer. The attorney trial referee found that the construction of the storage rack for the rowing shells fell within the ambit of this language. We do not agree.

Definitions of “general boating purposes” and “other waterfront purposes” have not been fashioned in Connecticut. In Cabal v. Kent County Road Commission, 72 Mich. App. 532, 250 N.W.2d 121 (1977), the Michigan Appellate Court determined that a right of access to a lake included the right to maintain a dock to float boats, but did not include the right to store boats on the servient tenement. It is not clear whether this case involved storage racks for the boats or whether the boats were stored directly on the land. While it is true that the easement in Cabal v. Kent County Road Commission, supra, was not an easement for “general boating purposes,” the parties there agreed that the easement of access provided for boating, fishing and swimming on the lake. The court distinguished the maintenance of docks from the storage of boats when it found that the former use was appurtenant to the easement, which allowed boating, and that the latter was not. Id., 536-37. The present case is similar.

The easement here may be used by the defendants for “boating purposes.” There is no ambiguity in the language of the deeds in the chains of title; the deeds do not indicate that a storage rack falls within the purview of the term “boating purposes” much less “waterfront purposes.” Like the Michigan Appellate Court, we distinguish between the dock and the rack. The dock is directly related to, and in this case necessary for, the furtherance of the purposes to which both chains of title refer, while the rack hampers the view that the users of the easement have enjoyed since Pulsifer owned the property. Also, the rack merely serves to store the rowing shells. The defendant does not need the rack to launch or use the shells safely for purposes of boating or, in this case, rowing.

Furthermore, the deed from Pulsifer to Schultz stipulates that “no building shall be constructed on said second tract and no uses shall be permitted thereon which interfere with the right of way and uses thereof reserved by the grantor herein.” This language indicates that Pulsifer intended that the second tract remain uncluttered to allow for the full enjoyment of the tract. It is significant that when Pulsifer conveyed her properties, no structures had been built on the second tract.

It is reasonable to infer from the language of the deed and the circumstances relating to the second tract that Pulsifer intended the topography to remain uncluttered to maximize the enjoyment of the waterfront. Because the rack does not come within the purview of the expressed “boating purposes” of the easement and the rack interferes with Pulsifer’s intent to keep the property uncluttered, we conclude that the construction and maintenance of the rack is not an allowed use under the easement.

We are, therefore, satisfied that the easement does not permit the construction of a boat rack on the servient estate.

The judgment is reversed only to the extent that the plaintiff was enjoined from interfering with the use of the storage rack and the case is remanded with direction to render judgment enjoining the defendants from maintaining a boat storage rack on the servient estate.

In this opinion the other judges concurred.

       The defendants also sought punitive damages, but none were awarded and the defendants have not pursued this issue on appeal.

       The rack is a six foot high wooden framework on which the shells rest.

       The trial court also enjoined the plaintiff from interfering with the defendants’ maintenance and use of the dock, the ramp to the dock, and a proposed walkway. Any challenge to that portion of the injunction was abandoned at oral argument.


author: Foti, J.

text:
    State of Connecticut v. Juan Velez
    (11326)
    Daly, Foti and Landau, Js.
    Argued October 27, 1992 —
    decision released January 12, 1993

      PaulaManginiMontonye, assistant public defender, with whom, on the brief, was Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, was Mark S. Solak, state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered by the court following his guilty pleas, of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), failure to appear in the first degree in violation of General Statutes § 53a-172 (a), possession with intent to sell a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The defendant claims that the trial court improperly (1) failed to comply with Practice Book § 711 by not advising him of the relationship between the events, as alleged, and the elements of the crimes to which he pleaded guilty, (2) accepted the defendant’s pleas without ensuring that his counsel had advised him of that relationship between the facts and the law, also in violation of Practice Book § 711, and (3) accepted the defendant’s pleas without ensuring that they were entered knowingly, intelligently and voluntarily, thus violating his federal and state constitutional rights to due process. We affirm the judgment of the trial court.

The record discloses the following facts pertinent to this appeal. On June 3,1988, the trial court conducted a plea canvass proceeding. As a preliminary matter, the court established that the defendant understood and spoke English and did not require the services of a Spanish interpreter. The court clerk then read into the record the separate information for each of the four charges. After each charge was read, the defendant entered a plea of guilty. The defendant acknowledged that he understood that by pleading guilty he was waiving his right to remain silent, his right to a jury or court trial with the assistance of counsel, and his right to confront witnesses. The court then advised the defendant to listen carefully as the state’s attorney recited the factual bases for the two charges against him to which he was pleading guilty under the Alford doctrine. The state’s attorney then read into the record, in the defendant’s presence, the following descriptions of the factual basis for each offense: “In the first case, which is 8496, possession with intent to sell a narcotic substance, this is an incident that took place at the Wind-ham Heights area in the town of Windham. On the 24th day of February, police officers were observing activity in the parking area at that — in a parking area at that location. An informant known to the police approached Mr. Velez and their understanding was that a drug transaction took place between the informant and Mr. Velez. The informant then went back to the police, provided them with the items that had been sold and, based on that information, the police then went and searched Mr. Velez and obtained from his person some seven bags of a substance which was later tested and found to be — contain heroin. When questioned by the police subsequent to his arrest, he indicated that he did in fact sell heroin to make money [and] that he was not addicted to heroin. Thus, the charge of possession with intent to sell a narcotic by a non-drug-dependent person.”

The state’s attorney then recited the factual allegations relative to the charge of possession of a sawed-off shotgun: “[TJhis is an incident that took place on the 11th day of March, 1988. Police officers again in the Windham Heights area were observing activity just as a matter of routine and they observed Mr. Velez and a companion in a vehicle parked outside of one of the residences. Their suspicion was drawn because Mr. Velez had previously been arrested by them on the charge that we’ve just — I’ve just represented to the court, and so they knéw who he was and they were simply watching and they were watching the comings and goings from the two individuals from the vehicle to the building. On one occasion they observed Mr. Velez coming out of a building with an object under his coat or wrapped — a small long object, which he was observed placing in the trunk of the vehicle. This is a hatchback vehicle, so it’s not really a trunk, but a hatchback of the vehicle, and then went back in and then the two individuals came out of the building and both got into the car. At that point the police radioed to another trooper who was on the highway to observe the vehicle and they wanted to ascertain the identity of the driver who was not Mr. Velez. The trooper watched the vehicle. The vehicle at that point exceeded the posted speed limit, at which point the trooper pulled the vehicle over for the purpose of issuing a summons for speeding. And in checking the identity of the driver, found that his driver’s operator’s license was under suspension at that time. They also recognized that the parties in the car had previously been involved in possession of weapons and, so, based on this information, and based upon what they had seen, they arrested the driver. They opened — looked through and then opened the trunk of the vehicle and found the item that Mr. Velez had apparently carried into the car as being a sawed-off shotgun. In addition, another weapon was found in the motor vehicle, a revolver was found in the motor vehicle, which is attributable to the driver as opposed to Mr. Velez. Thus, they charged him with possession of a sawed-off shotgun in violation of the statute under those circumstances. Mr. Velez at that point, being questioned by the police, also admitted that he had carried the shotgun into the car and had put it into the trunk area.”

After the defendant indicated that he had heard the state’s version of the facts for these two charges, the court asked the defendant: “Since you are pleading guilty under the so-called Alford doctrine, I do not intend to ask you whether that actually happened; do you understand that?

“The Defendant: Yes, sir.

“The Court: Are you satisfied . . . that if there were a trial of this matter, the state would probably be able to prove, beyond a reasonable doubt, that on the 24th day of February, 1988, in the town of Wind-ham, you had in your possession a quantity of a narcotic substance, that is, heroin, that you knew you had that substance in your possession, that you knew the same to be heroin, that you had it in your possession with the intent to sell, transfer, or distribute that substance to another person, and that at that time you were not a person dependent upon drugs. Are you satisfied that if there were a trial, the state would be able to prove those elements of this offense beyond a reasonable doubt?

“The Defendant: Yes, sir.

“The Court: Are you satisfied as well that if there were a trial of this matter, the state would be able to prove, beyond a reasonable doubt, that on the 11th day of March, 1988, you did, in the town of Windham, knowingly possess a sawed-off shotgun, that is, a Mossberg twelve gauge shotgun with a barrel less than eighteen inches in length; are you satisfied—

“The Defendant: Yes, sir.

“The Court: —that the state would be able to prove that beyond a reasonable doubt?

“The Defendant: Yes, sir.

“The Court: And are you satisfied as well that the state would be able to prove, beyond a reasonable doubt, that you were not licensed or otherwise permitted by state or federal law to possess, control or own that sawed-off shotgun?

“The Defendant: Yes, sir.”

The court then explained to the defendant the maximum and minimum sentences specified in the statutes, and the defendant indicated that he understood this. The defendant further acknowledged that he was entering the pleas to take advantage of the plea agreement that had been made, which included a sentencing recommendation of twelve years, because he thought it was in his best interest to do so. The defendant also acknowledged that no threats or promises had been made to induce him to enter these two pleas, other than the terms of the plea agreement, which was placed on the record. The court then asked the defendant if he had any questions and if he wanted further opportunity to speak with his attorney about these pleas. The defendant said, “No, sir.”

The court then canvassed the defendant as to the other two charges in a similar fashion, instructing him to “listen carefully” to the state’s allegations of the facts. The state’s attorney then read the following: “In file number 8515, which is the next in line, failure to appear in the first degree, this incident took place in this court on the 15th day of April, 1988. At that time, Mr. Velez, having been charged with the crimes of possession of a narcotic substance with intent to sell in two counts, which are felonies, and also criminal attempt to commit murder and criminal attempt to commit assault in the first degree, which are also felonies, and I believe also at that time having been charged with weapons in a motor vehicle — I’m sorry, he was not charged — he was not charged with the assault charge at that time. He was charged with the narcotics charge at that time, both of which are felonies. So, being charged with felonies on that particular date, he was to appear in court on that date to answer to those charges and failed to— and willfully failed to do so in violation of the statute. With respect to the last file, file number 8511, to which he has pled guilty to criminal attempt to commit assault in the first degree, this is an incident that took place again at Windham Heights on the 13th day of April, 1988. On that occasion, Mr. Velez apparently had had a verbal argument with the victim. Words were exchanged between them prior to that particular time. Mr. Velez came back to the area, again engaged in a verbal argument with the victim, at which point Mr. Velez had in his possession a firearm, pointed the firearm in the direction of the [victim], who at that point took off and started running, and fired three rounds at him or at least toward him. The clear intent from the witnesses who observed this was that he was aiming the weapon . . . at the victim as he was running. Three rounds were fired. One of the rounds entered the buttocks of the victim, causing a wound which was subsequently treated and taken care of. It’s the state’s position that in firing the gun at that point, he intended to do serious physical harm to the victim and thus the charge of attempted assault in the first degree with that particular firearm, although he’s not charged under the firearm statute.”

After the defendant acknowledged that he had heard the facts recited by the state’s attorney and that they were accurate, the court asked the defendant a series of questions:

“The Court: Is that what happened on these occasions?
“The Defendant: Yes, sir.
“The Court: You admit then that on the 15th day of April, 1988, that you were charged with a felony, that you had been released on bond, that knowing that you were required to appear in court you willfully failed to do that; is that right?
“The Defendant: Yes, sir.
“The Court: You knew you had to be here in this court in Putnam on the 15th of April?
“The Defendant: Yes, sir.
“The Court: And you were then released, even though you were charged with an offense which carried a penalty of more than a year?
“The Defendant: Yes, sir.
“The Court: Why didn’t you come to court?
“The Defendant: I knew the state police was going to be here on that day waiting for me because I had shot somebody during that week, so I didn’t come.
“The Court: So you didn’t come to court because you knew you were going to be arrested if you came to court?
“The Defendant: Yes, sir.
“The Court: And that is the only reason you didn’t come to court?
“The Defendant: Yes, sir.
“The Court: Nothing else prevented you from coming to court?
“The Defendant: No, sir.
“The Court: You make that plea then freely and voluntarily because you are guilty and for no other reason?
“The Defendant: Yes, sir.
“The Court: Now, do you admit that on the 13th day of April, in the town of Windham, you took steps to carry out your intent to cause serious physical injury to another person by means of a deadly weapon?
“The Defendant: Yes, sir.
“The Court: Was that deadly weapon a firearm?
“The Defendant: Yes, sir.
“The Court: And did you take that step by intentionally firing that pistol at that other person?
“The Defendant: Yes, sir.
“The Court: You did in fact shoot him?
“The Defendant: Yes, sir.
“The Court: You, therefore, admit that you caused a gunshot wound to him; is that right?
“The Defendant: Yes, sir.
“The Court: And you did that with the intent to cause serious physical injury to him; is that right?
“The Defendant: Yes, sir.
“The Court: And you did in fact cause such injury to him.
“The Defendant: Yes, sir.
“The Court: With a deadly weapon, a pistol?
“The Defendant: Yes, sir.
“The Court: Might even constitute the offense rather than just an attempt. In any event, what is charged is the attempt, and you admit that you attempted to do that; is that right?
“The Defendant: Yes, sir.
“The Court: And you admit that you had the required mental state for commission of that crime, the intention to cause serious physical injury?
“The Defendant: Yes, sir.
“The Court: And to commit a crime—
“The Defendant: Yes, sir.
“The Court: To do something wrong—
“The Defendant: Yes.
“The Court: In violation of the law.
“The Defendant: Yes.”

The court then continued canvassing the pleas on these counts to determine that the defendant was making them freely and voluntarily. The defendant acknowledged that he had discussed both the meaning and the effect of his pleas with his attorney, and he answered negatively when the court asked if there was “anything at all you don’t understand about the mean-i ng and effect of your pleas of guilty.” The defendant affirmed that he was satisfied with the advice and assistance his attorney had given him, and had no questions for either the court or his attorney about his pleas. At no time did the defendant move to withdraw his pleas of guilty.

I

The defendant’s first two claims have as their basis an alleged violation of Practice Book § 711. His challenges rest on a contention that the trial court failed to present him with an analysis correlating the facts recited by the state’s attorney with the elements of the offenses, or failed to ensure that his attorney had offered him such a fact-law analysis. The defendant does not claim that the trial court improperly reviewed the elements of the crimes charged. Nor does he claim that the facts were improperly recited as alleged. Rather, the defendant seeks to persuade us that the plea canvassing procedure set forth in Practice Book § 711 includes the separate requirement of a mixed fact-law analysis by the trial court, a requirement he never claimed was necessary prior to the present appeal. As part of these claims, the defendant argues that while residents of Connecticut are presumed to know the law of Connecticut, a nonresident, like himself, may require a discussion by the trial court relating the law and facts so that he might truly “be aware of how the alleged events correspond to the elements of the charges.”

“ ‘Under Practice Book §§ 720 and 721, a defendant may withdraw his guilty plea on the ground of a deficient plea canvass only by bringing the deficiency to the court’s attention prior t,o the conclusion of the sentencing proceeding.’ State v. Anderson, 23 Conn. App. 564, 567, 583 A.2d 142 (1990), rev’d in part, 220 Conn. 400, 599 A.2d 738 (1991). Failure to raise a claim in a timely manner will usually preclude review of the plea. Id., 568.” State v. Gamble, 27 Conn. App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992).

The defendant did not raise these claims by moving to withdraw his pleas pursuant to Practice Book § 720, but instead seeks Evans-Golding review. “In State v. Golding, [213 Conn. 233, 567 A.2d 823 (1989)] our Supreme Court reformulated the test of reviewability in [State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973)]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim only if all of the following conditions are met: ‘(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ Id., 239-40. When any one of these conditions is not met, the defendant cannot prevail. Id., 240.” State v. Gamble, supra, 13. We conclude here that the defendant has not satisfied the second prong of the Evans-Golding test, because he has failed to raise a claim of constitutional magnitude alleging the violation of a fundamental right.

“The fact that an allegation of noncompliance with [a rule of practice] may sometimes have constitutional dimensions does not . . . establish the existence of such a constitutional nexus in every case.” State v. Jarrett, 218 Conn. 766, 776, 591 A.2d 1225 (1991). Precise compliance with the provisions of Practice Book §§ 711 and 712, which govern the canvassing of a defendant’s guilty pleas, is not constitutionally required. State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Our Supreme Court has indicated that “[w]here there has been a substantial compliance with [§ 711], such that none of the defendant’s constitutionally protected rights has been infringed upon, the failure to comply with each and every requirement of [§ 711] does not automatically require the vacating of the defendant’s plea. ...” (Citation omitted; internal quotation marks omitted.) State v. Lopez, 197 Conn. 337, 346, 497 A.2d 390 (1985). Moreover, due process does not mandate a factual basis inquiry. Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987). The Paulsen court quoted approvingly Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984), in which the court stated that “[t]he voluntariness of a plea of guilty . . . should be determined by considering all of the relevant circumstances.” While the trial court’s scrupulous compliance with the provisions of Practice Book § 711 may be mandatory when challenged on direct appeal, that may not be the case when claimed under the Evans-Golding bypass doctrine, where the claim of noncompliance must be of constitutional magnitude.

The defendant’s first two claims are really a request that we read into the text of Practice Book § 711 the constitutional requirement of a separate law-fact analysis by the trial court. We decline to do so. Although he alleges the existence of a constitutional violation because the trial court did not provide such an analysis, he has not demonstrated that such a constitutional right truly exists. Because the defendant’s claimed violation of Practice Book § 711 is not of constitutional magnitude, we decline to review it under the Evans-Golding bypass doctrine.

“As a general rule, we will not overturn the judgment of a trial court for alleged deviations from the rules of the Practice Book in the absence of a contemporaneous objection distinctly raising that claim at trial.” State v. Jarrett, supra, 775. “To the extent that the defendant’s [first two claims rest] on an alleged violation of the provision of the Practice Book, [they] cannot be sustained because this contention was not clearly articulated to the trial court.” Id., 776.

II

The defendant’s third claim, a constitutional challenge to his guilty pleas, differs from his two claims under the rules of practice. Here, he alleges that the pleas were made in violation of the due process clause of the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. He bases this claim on the United States Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). There, the court held that to comport with due process, a defendant’s plea of guilty must be entered knowingly and voluntarily.

The defendant does not claim that he was not made aware of the events alleged or that the trial court did not fully review with him all the elements of the crimes with which he was charged. Rather, the defendant again claims that the trial court did not ensure that he fully understood the elements of the charges against him “in relation to” the underlying facts. He argues that when the trial court canvassed him, the court “simply repeated the elements of the crimes charged without simplifying them for a lay person” and unconstitutionally failed to “correlate the factual scenarios for each charge with the specific elements that the state had to prove for a conviction on each charge.”

This constitutional claim, like the rules of practice claims, was not properly preserved. In State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983), however, our Supreme Court indicated that a guilty plea not knowingly and voluntarily made involves the violation of a fundamental constitutional right and, therefore, may be considered for the first time on appeal. In this case, however, the defendant also asks us to determine whether, as part of the fundamental right that a guilty plea be knowingly and voluntarily made, the trial court must provide the defendant with a special analysis “correlating” the facts and the law. We decline to review this aspect of his claim.

“ ‘[U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.’ ” State v. Ramos, 23 Conn. App. 1, 3, 579 A.2d 560 (1990). The defendant points to no Connecticut cases specifically holding that a plea is deemed to have been entered knowingly and voluntarily, as a matter of constitutional law, only if, as part of the canvass, the court “correlates” the facts and the law. The defendant refers only to McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), and three Connecticut cases: State v. Collins, 207 Conn. 590, 542 A.2d 1131 (1988); State v. Marra, 174 Conn. 338, 387 A.2d 550 (1978); and Consiglio v. Warden, 160 Conn. 151, 276 A.2d 773 (1970); which incorporate language from McCarthy, as support for his argument. We are unpersuaded.

In McCarthy, the United States Supreme Court stated that in order for a plea of guilty to be constitutionally valid, it must be “equally voluntary and knowing ... it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, supra; see State v. Collins, supra, 598. Our Supreme Court has frequently quoted this language from McCarthy to emphasize the voluntary and knowing requirements of a guilty plea. See, e.g., State v. Childree, supra, 122-23; State v. Torres, 182 Conn. 176, 184, 438 A.2d 46 (1980). We have found no Connecticut case, however, in which this language from McCarthy was interpreted to require a special analysis on the part of the trial court explicitly linking the facts alleged with the elements of the crimes charged in order to satisfy the constitutional requirement that a plea be knowingly and voluntarily made.

The three Connecticut cases cited by the defendant fail likewise to demonstrate that he has a fundamental right to such an analysis. In Consiglio v. Warden, supra, the court did not cite the language from McCarthy on which the defendant relies. In State v. Marra, supra, the court cited the language, but did not rely on it. There, the validity of the defendant’s plea was undermined, not because the trial court had failed to correlate the facts with the law, but because the recitation of facts by the state’s attorney was insufficient to support the defendant’s guilty plea. Significantly, our Supreme Court later overruled Marra to the extent that it had held that a plea unsupported by a factual basis is constitutionally defective. See Paulsen v. Manson, supra. In State v. Collins, supra, 596, our Supreme Court stated that “[t]he Boykin constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book § 711.” Earlier in this opinion, we declined to read into § 711 the separate requirement of a law-fact analysis by the trial court.

The defendant has failed to demonstrate that his guilty pleas do not conform to the requirements of Practice Book § 711 and the standards set forth in Boykin v. Alabama, supra. This portion of the defendant’s claim therefore fails to satisfy the conditions necessary to permit our full review under Evans-Golding.

Our limited review of the defendant’s pleas under the exceptional circumstances doctrine of State v. Evans, supra, 70, and State v. Gamble, supra, 13-14, reveals that the pleas were knowingly and voluntarily entered. We reiterate that the defendant makes no claim that any essential element of any offense was omitted by the trial court, or that any necessary fact was omitted by the state’s attorney during the canvass. We have examined the entire transcript of the plea canvass proceeding and it is difficult to imagine how much clearer the trial court could have made its discussion of the , pleas. The record is devoid of any indication that the defendant did not understand the nature of the proceedings, nor is there any suggestion that he was incompetent to enter the pleas. The record shows no due process violations under the fifth and fourteenth amendments to the United States constitution. The defendant has been unable to demonstrate the violation of a fundamental constitutional right. We conclude, therefore, that his third claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s pleas of guilty to violation of General Statutes §§ 21a-278 (b) and 53a-211 were entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). As a consequence of the defendant’s pleas, and as part of the plea agreement, the state nolled charges of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a), attempted murder in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

       The defendant was sentenced to concurrent periods of incarceration for a total effective sentence of twelve years of imprisonment.

       The defendant has not challenged this determination.

       Under the Alford doctrine, the defendant consents to sentencing as if he is guilty. He acknowledges only that the state has enough evidence to convict him without expressly acknowledging his guilt.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       Practice Book § 720 provides: “A defendant may withdraw his plea of guilty or nolo contendré as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       The defendant offers no separate analysis of the state constitutional claim because, he states, “the analysis is the same. If [the defendant’s] pleas are not constitutionally valid under the United States constitution, they cannot be valid under the Connecticut constitution. Therefore, the validity claim goes to both.”

       In Myers v. Munson, 192 Conn. 383, 390, 472 A.2d 759 (1984), where the defendant claimed that his plea was invalid because he was not competent at the time he entered it, the court cited this language from McCarthy to indicate that “if the defendant does not possess an understanding of the law in relation to the facts, can not choose among the alternatives, or does not have sufficient awareness of the relevant circumstances and likely consequences, then the defendant can not be competent to plead. . . . [T]he trial court’s acceptance of the plea after a thorough inquiry . . . implies that the plaintiff was competent to enter that plea.” (Citations omitted.) In Myers, the court linked the defendant’s possession of “an understanding of the law in relation to the facts” to his competence to enter a plea. Myers indicates that a trial court, by accepting a plea after a thorough canvass in accordance with the requirements of the rules of practice, implicitly determines that the defendant possessed sufficient understanding of the law in relation to the facts to voluntarily and knowingly enter the plea.

       We decline to address separately the defendant’s state constitutional claim; see footnote 7, supra.


author: Freedman, J.

text:
    State of Connecticut v. Keith M. Commerford
    (10475)
    Lavery, Landau and Freedman, Js.

      Argued December 7, 1992 —
    decision released January 12, 1993

      Suzanne Zitser, assistant public defender, with whom, on the brief, was G. Douglas Nash, 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 Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (l). On appeal, the defendant claims that (1) the trial court failed to instruct the jury properly with respect to the intent required to commit a criminal attempt, (2) the trial court improperly failed to give the defendant’s requested instruction on witness credibility, and (3) the state failed to prove beyond a reasonable doubt that the defendant committed an attempted assault in the first degree. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 28,1989, the defendant and some friends were at a party given by a University of Bridgeport fraternity. At approximately 11:30 p.m., immediately after he had had a confrontation with a female guest, the defendant headed toward the alleyway leading away from the location of the party. James Piccione, a fraternity member, was standing near the same alleyway. As the defendant was walking past Piccione, the defendant hit Piccione in the shoulder with his shoulder. After a hostile exchange of words, the defendant walked a few more steps away from Piccione, pulled out a revolver and shot Piccione in the upper left arm from a distance of about ten feet.

After the shot was fired, the defendant ran. Lenny Massa and Steven Nargizian, both fraternity members, began to chase the defendant. Twice during the chase, the defendant turned to fire a shot at them. Two other partygoers, David Heitner and Greg Petimezian, got into Heitner’s pickup truck and drove around looking for the defendant. Heitner stopped the vehicle to allow Massa and Nargizian to jump into the back of the truck. Massa pointed out the defendant, and Heitner started to follow him. Heitner drove his truck on the sidewalk directly in front of the defendant. The defendant, who was then about seven to eight feet away, took out the gun, aimed it toward the truck and fired. The bullet struck Massa in his chest. Despite medical efforts to save his life, Massa died at 12:25 a.m. on September 29, 1989, as a result of a gunshot wound to his heart, left lung and liver.

The defendant first claims that the trial court did not properly instruct the jury regarding the intent requirement of our criminal attempt statute, General Statutes § 53a-49. Section 53a-49 (a) (2) provides that “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” (Emphasis added.) In conjunction with the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), the state was required to prove that the defendant in this case, acting with intent to commit serious physical injury, did intentionally engage in conduct by means of a deadly weapon that was planned to bring about that result. The defendant claims that the trial court failed to apprise the jury of the second intent requirement, namely, that the act constituting a substantial step in a course of conduct planned to culminate in the assault had to be intentional.

Since the defendant has not preserved this claim for appellate review, “we will review [it] under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the claim is one which goes to the improper instruction of an element of the crime, and the record is sufficient for such a review.” State v. Gonzalez, 25 Conn. App. 433, 441 n.4, 596 A.2d 443 (1991), aff’d, 222 Conn. 718, 609 A.2d 1003 (1992). We conclude, however, that this claim must fail because the defendant cannot show that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 240.

The trial court adequately explained to the jury that the conduct that is claimed to be a substantial step toward the commission of the assault had to be intentional. “Now, in this case, [the defendant] is charged with an attempt to commit [assault in the first degree]. Our statute defines an attempt to commit the crime. It is not necessary that the crime be committed. Our statute provides, insofar as it applies here, that a person is guilty of an attempt to commit a crime if acting with the kind of mental state required for the commission of that crime he intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in the commission of the crime.” (Emphasis added.) Later in its instructions, the court noted that it was “necessary that the state prove that [the defendant] acted intentionally,” it explained that to be a substantial step in a planned course of conduct the defendant’s “conduct must be strongly corroborative of his criminal purpose, his criminal intent,” and it summarized the state’s claim that the defendant “pulled the gun and fired it, and it was his intent to commit an assault inflicting serious injury upon Piccione with a deadly weapon.” These instructions clearly apprised the jury of the fact that it was necessary that they find the defendant’s conduct in firing the gun to be intentional. In this case, where the defendant was charged with attempted assault and the evidence revealed simply an altercation and a shooting, “the only relevant question was whether the defendant, with the intent to cause the victim’s [serious physical injury], had taken a substantial step, strongly corroborative of his purpose, in a course of conduct planned to culminate in the accomplishment of his intended result.” State v. Gonzalez, 222 Conn. 718, 725, 609 A.2d 1003 (1992). The trial court’s instructions, therefore, encompassed all the elements necessary to constitute criminal attempt to commit assault in the first degree pursuant to §§ 53a-49 (a) (2) and 53a-59 (a) (1).

Contrary to the defendant’s argument, the court did inform the jury that the conduct constituting the substantial step had to be intentional. That elsewhere in its instructions on criminal attempt the court may have emphasized the requirement that the state prove that the defendant intended to cause serious physical injury to Piccione did not negate its explicit instruction that the jury must also find the defendant’s conduct to have been intentional. This is especially so here since the disputed issue at trial was the defendant’s state of mind when he fired the shot that injured Piccione, not whether that act was intentional. The defendant seeks to have us read portions of the court’s instructions in isolation from the entire charge. This we will not do. See, e.g., State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). In our view, the court’s instructions on the elements of criminal attempt, taken as a whole, presented the case to the jury fairly and accurately, such that no injustice was done. Id. Accordingly, we find no merit in the defendant’s claim.

The defendant next argues that the trial court improperly failed to give the following portion of one of his written requests to charge: “No fact should be determined merely by the number of witnesses testifying for or against it. You should be interested primarily in the quality of the testimony offered rather than by quantity.” While it is clear that the requested instruction is a correct statement of law and relevant to the issues in the case, “the trial court is not required to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request.” State v. Bunker, 27 Conn. App. 322, 328, 606 A.2d 30 (1992). “[T]he test is whether the court’s instructions properly covered the substance of the written request.” State v. Watlington, 216 Conn. 188, 198, 579 A.2d 490 (1990); State v. Dickerson, 28 Conn. App. 290, 294, 612 A.2d 769 (1992). Under this standard of review, we conclude that the trial court properly discharged its duty to instruct the jury in a manner calculated to give a clear understanding of the issues presented for their consideration.

The trial court here instructed the jury extensively on the subject of credibility of witnesses. Throughout its instructions on witness credibility, the trial court stressed the evaluative or weighing process to be used by the jurors in determining the facts and emphasized that the determination of the truth is an evaluation of the quality of a witness’ testimony. Moreover, the court stressed the importance of considering “all the evidence you hear from all the different witnesses, and then you decide as to the credibility of the witnesses and decide what portion, all, some or none of any particular witness’ testimony you will believe based on those principles.” Although the trial court did not specifically state that quality, not quantity, of witness testimony was critical to the factfinding process, “[t]he instruction^] actually given by the trial court accurately conveyed the same theme.” Id., 295. It is, therefore, not reasonably possible that the jury was misled.

The defendant’s final claim is that the state failed to prove beyond a reasonable doubt that he committed the crime of attempted assault in the first degree in violation of General Statutes § 53a-59 (a) (1). Specifically, the defendant argues that the evidence was insufficient to prove his intent to inflict serious physical injury to Piccione and to prove that he intentionally engaged in conduct to carry out that intent.

“The record discloses that the defendant made a motion for judgment of acquittal at the close of the state’s case pursuant to Practice Book § 884. The trial court denied this motion. The defendant then proceeded to offer evidence on his own behalf. Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state’s case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). Thus, the defendant’s claim with regard to the sufficiency of the evidence at the completion of the state’s case is not reviewable. State v. Booker, supra, 41.” State v. Wolff, 29 Conn. App. 524, 527-28, 616 A.2d 1143 (1992).

“We thus review the entirety of the evidence taking into account both the evidence offered by the state and that offered by the defendant. State v. Kari, supra. We review all of the evidence presented in the light most favorable to sustaining the verdict. State v. Dunn, 26 Conn. App. 114, 124, 598 A.2d 658 (1991). We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established the guilt of the defendant beyond a reasonable doubt. State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Dunn, supra. We must also keep in mind that the defendant attacks the sufficiency of the evidence with respect to a single count only, the charge that [he intentionally attempted to inflict serious physical injury on Piccione with a deadly weapon]. We afford great deference to findings of fact consistent with guilt unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).” State v. Wolff, supra, 528-29.

The defendant contends that “[t]he sole evidence presented by the state to prove the requisite intent and act for the attempted assault was the testimony elicited from James Piccione, the victim. Yet, an examination of his testimony fails to provide any, let alone sufficient, evidence of the defendant’s intent or of the substantial step. And, when the testimony of the only other witness to the shooting of Piccione, Steven Nargizian, is examined, the defendant maintains that a contrary conclusion as to the proof of these essential elements is reached.” We do not agree.

“Ordinarily, the intent of the actor is a question for the trier of fact. . . . It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” (Citations omitted; internal quotation marks omitted.) State v. Allen, 28 Conn. App. 81, 89-90, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992). “ ‘Further, when the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment.’ ” State v. Bewry, 26 Conn. App. 242, 246, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992), quoting State v. Turner, 24 Conn. App. 264, 268, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

The defendant’s argument to the contrary notwithstanding, it was not necessary for the state to prove that the defendant deliberately aimed the firearm. State v. Washington, 15 Conn. App. 704, 716, 546 A.2d 911 (1988). Here, the evidence showed that defendant hit Piccione in the shoulder and a loud exchange of words ensued. When the gun was fired, the defendant was holding it out in front of him. Piccione and the defendant were ten feet apart and, according to Piccione, no one was between them. Piccione was shot in the upper arm by the same person who killed Lenny Massa with one shot shortly thereafter. On the basis of all the evidence, then, we conclude that the jury had before it sufficient evidence to permit it to find beyond a reasonable doubt that the defendant intended to cause serious physical injury to the victim and that the defendant intentionally fired the gun in order to carry out that intent. Cf. State v. Nixon, 13 Conn. App. 824, 538 A.2d 1064 (1988) (evidence that the defendant had a hostile conversation with the victim, and that the victim saw the defendant point a gun at him, and watched the defendant shoot him, resulting in the victim’s hospitalization, was sufficient to support a conviction for intentional assault in first degree). Accordingly, the defendant’s conviction of attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1) must stand.

The judgment is affirmed.

In this opinion the other judges concurred.

       Before the case was submitted to the jury, the defendant pleaded guilty to one count of carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b) and one count of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217 (a). The judgment rendered with respect to those offenses is not challenged on this appeal.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       At trial, the state called sixteen witnesses to testify. Only two witnesses testified on behalf of the defendant.


author: Schaller, J.

text:
    State of Connecticut v. Richard Barlow
    (10944)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued October 28, 1992 —
    decision released January 12, 1993

      Richard W. Gifford, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Sandra L. Tullius, deputy assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant, Richard Barlow, appeals from a judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a (a) (l). The defendant claims (1) that the trial court, Sferrazza, J., improperly denied a motion in limine that sought to preclude litigation of an issue previously addressed in an administrative decision, and (2) that the trial court, McWeeney, J., improperly denied a subsequent motion in limine, permitting the state to introduce certain evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2, 1991, shortly after 11 p.m., Officer Kenneth Gervais of the Hebron police department was patrolling Route 85 in Hebron when he observed the defendant erratically driving a pickup truck. The defendant, who was driving thirty-three miles per hour in a forty-five mile per hour zone, was having difficulty staying on the appropriate portions of the road, at times crossing a pedestrian line on the road shoulder. On the basis of his training and experience, Gervais recognized these irregularities as indicating a driver under the influence of drugs or alcohol.

The officer activated his emergency lights to signal to the defendant to pull over to the side of the road for questioning. In apparent response to the officer’s pursuit, the defendant turned suddenly onto a dead-end road without first using his signal. The defendant, followed by Gervais, drove to the end of the road, where he parked his truck.

The officer then left his patrol car and stood next to the defendant’s truck where he observed additional signs of the defendant’s consumption of alcohol. The officer noticed that the defendant’s breath had a strong odor of alcohol. Asked by Gervais to produce his license, the defendant dropped it onto the ground. When the defendant stepped out of his truck, he could not maintain his balance and reached for the truck for support. Soon, Officer Kevin Prior arrived on the scene. He too smelled a strong odor of alcohol in the defendant’s vicinity. Gervais then administered several field sobriety tests, which further confirmed the officer’s initial evaluation that the defendant had operated his vehicle while under the influence of alcohol. On this basis, the officer arrested the defendant for driving while under the influence of alcohol in violation of General Statutes § 14-227a.

At the police station, Gervais sought to administer a breath test to determine the defendant’s blood alcohol level. This procedure required the defendant to blow into a tube connected to a machine, but, because he repeatedly failed to make a tight seal around the tube with his lips, he was unable to force enough breath into the machine for an adequate sample. Thus, the machine could not register his blood alcohol level. After several fruitless attempts at blowing into the tube, the defendant informed the police that he had an ear condition that made it painful to blow forcefully into the machine. Ultimately, the police failed to establish the defendant’s blood alcohol level.

Pursuant to General Statutes § 14-227b (h) (1) (B), the defendant faced a six month license suspension for his apparent refusal to take the breath test. The defendant requested an administrative hearing before an officer of the department of motor vehicles. General Statutes § 14-227b (d). After the hearing, the officer found that the defendant had not refused the breath test, and accordingly reinstated the defendant’s driving privileges.

In a separate proceeding, the state brought criminal charges against the defendant for driving while under the influence of intoxicating liquor. General Statutes § 14-227a (a) (1). The defendant filed two motions in limine. The first claimed that the administrative finding that the defendant had not refused breath testing was binding in the criminal action by virtue of collateral estoppel. The second motion in limine sought to exclude all references at trial to the facts surrounding the breath testing of the defendant. After the trial court denied both motions, the case proceeded to trial. At the conclusion of the trial, the jury returned a verdict of guilty as charged. This appeal followed.

I

The defendant first claims that collateral estoppel barred the state from contesting at trial the issue of whether the defendant refused to provide a breath sample. According to the defendant, the administrative decision foreclosed any further litigation of this issue in the course of the subsequent criminal proceeding. We disagree.

“ ‘Collateral’ estoppel is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice.” Ashe v. Swensen, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). The doctrine operates “to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction.” (Internal quotation marks omitted.) State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987). Collateral estoppel applies to both criminal and civil proceedings. Id. In addition, an administrative board, acting in a judicial capacity, may render a decision that qualifies as a prior determination for purposes of collateral estoppel. Id.

“Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privily with that party.” Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303, 596 A.2d 414 (1991). In this case, if the state’s attorney and the commissioner of motor vehicles are in privity with one another, then the same parties were involved in both the administrative proceeding and the subsequent criminal trial. While our courts have struggled with the definition of privity, “ ‘a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity.’ ” State v. Fritz, supra, 173. In this case, we must examine the unity of interests shared by the two different agencies representing the state, the commissioner of motor vehicles in one instance and the state’s attorneys within the division of criminal justice in the other. The defendant contends that, because both parties represent the rights of the state, privity exists, which supports the applicability of collateral estoppel. We are not persuaded by this argument.

Our Supreme Court’s decision in State v. Fritz, supra, 170-77, is dispositive of the defendant’s claim. There, the court addressed the same issue, i.e., “whether collateral estoppel operates to bar relitigation in a state criminal proceeding of those issues previously decided by a state administrative agency.” Id., 172. The case involved an administrative proceeding in which the hearing officer decided not to suspend the defendant physician’s license. The court held that “since no privity exists, the state is not collaterally estopped from prosecuting the defendant.” Id., 177.

The court buttressed its conclusion by reasoning that the “purpose of the administrative proceedings . . . is to police licensing requirements within the state, while the state’s attorney’s interest in the criminal proceeding is in having guilt or innocence determined under the applicable criminal law and in seeing that proper punishment is meted out in the event that the criminal law has been violated. The state’s attorney represents the broader public interest in the effective administration of criminal justice. . . .” (Citation omitted; internal quotation marks omitted.) Id., 176.

The analysis in Fritz applies with equal force to the present case. Here, the defendant attempts to prevent the relitigation of a favorable administrative decision. As in Fritz, however, the administrative decision did not address the broader questions of criminal culpability nor did the commissioner represent the public interest in the effective administration of criminal justice. Rather, the administrative proceeding focused solely on the issue of licensing. Because this administrative proceeding did not serve “the state’s interest in having guilt or innocence determined”; id.; the defendant cannot surmount the privity barrier critical to the application of collateral estoppel.

A more recent discussion of privity expands on the analysis of Fritz. When collateral estoppel is asserted and the doctrine of privity raised, the key concern to be addressed is whether there was a full and fair opportunity to litigate the issue. Aetna Casualty & Surety Co. v. Jones, supra, 296. Here, the prior proceeding did not afford the state’s attorney a full and fair opportunity to litigate issues pertinent to the criminal case. Thus, the trial court properly permitted the relitigation of matters previously addressed in the course of the administrative proceeding.

II

The defendant next claims that the trial court improperly allowed the jury to consider evidence on the issue of whether the defendant refused to submit to the breath test. His argument is couched in terms of statutory analysis, i.e., that “refuse” as provided in § 14-227a (f) cannot be construed to include cases in which the driver agrees to take the test but fails to provide an adequate sample. We are not persuaded.

The following additional facts are pertinent to this aspect of the appeal. The defendant filed a motion in limine to exclude all evidence regarding the “test refusal.” The court denied the motion, but cautioned the prosecutor, “[j]ust have [the officer] testify about what happened. Don’t ask whether there was a refusal.” At trial, the state elicited testimony explaining what had transpired during the attempted breath test.

When the court subsequently instructed the jury, it explained that “under our law if a person refuses to submit to a chemical test, you may consider this evidence independently or in conjunction with other evidence and draw from it any reasonable inferences . . . but it is not in and of itself a conclusion as to the guilt or innocence of the defendant. ... If you find there was an attempt to take the test . . . that is not a refusal from which you can draw inferences.”

We note at the outset that our analysis must comport with well established principles guiding the appellate review of evidentiary rulings. “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Indrisano, 29 Conn. App. 283, 291, 613 A.2d 1375 (1992), quoting State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). We afford the trial court great deference and indulge every reasonable presumption in favor of an evidentiary ruling. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979). Further, when a constitutional violation is not at issue, the defendant bears the burden of demonstrating the harmfulness of the court’s ruling such that it is more probable than not that it affected the trial’s result. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).

In this case, we cannot conclude that the trial court abused its discretion by allowing the jury to consider testimony on the issue of whether the defendant refused to take the breath test. As § 14-227a (f) makes abundantly clear, “evidence that the defendant refused to submit to a . . . breath . . . test . . . shall be admissible” provided that the requirements of subsection (b) of [§ 14-227b] have been satisfied. Whether the defendant refused to take the breath test was an issue of fact for the jury. General Statutes § 14-227a (f). Accordingly, the trial court did not abuse its discretion by submitting this factual issue to the jury.

Furthermore, the trial court prudently instructed the jury on interpreting the evidence surrounding the attempted breath test. Section 14-227a (f) provides that “[i]f a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a ... breath . . . test.” In instructing the jury, the trial court explained that the jury was free to draw any reasonable inferences in the event that it found refusal. The court proceeded to caution the jury that evidence of refusal by itself cannot support a guilty verdict. In short, on these facts, we are unable to discern an abuse of discretion by the trial court.

The defendant relies heavily on the trial court’s decision in Dorman v. DelPonte, 41 Conn. Sup. 437, 582 A.2d 473 (1990). There, the Superior Court stated that § 14-227b (f) (3), governing license suspensions at the administrative level, “does not give the police or the hearing officer the authority to determine that a refusal to take a test . . . occurs when the driver consents to take the test and fails to perform it properly . . . .” (Emphasis added.) Id., 443. The defendant seeks to apply this analysis to § 14-227a (f) and thereby to preclude the jury from considering the evidence of refusal. We find the defendant’s reliance on Dorman v. DelPonte, supra, misplaced.

The circumstances in Dorman v. DelPonte, supra, are patently different from those in the present case. In Dorman v. DelPonte, supra, a driver appealed an administrative decision in which the board suspended his license for refusing to submit to a chemical analysis. The issue was whether the statute authorized the administrative hearing officer to credit a conclusory determination by the police officer that the driver’s failure to provide an adequate breath sample constituted a refusal. Id. The present case is quite different. Here, the jury rendered an independent decision based on the evidence adduced at trial. We find no merit in the defendant’s attempt to challenge the authority of the jury to consider evidence on the issue of refusal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a provides in pertinent part: “operation WHILE UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION WHILE UNDER THE INFLUENCE. No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor . . . if he operates a motor vehicle on a public highway of this state . . . (1) while under the influence of intoxicating liquor . . . .”

       At oral argument, the defendant expressly abandoned his third claim that the evidence adduced at trial was insufficient to convict him. We accept the defendant’s withdrawal of this claim and will not consider it any further. State v. Booker, 28 Conn. App. 34, 40-41, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992).

       Gervais testified that the defendant failed each of the field tests. According to Gervais’ testimony, the defendant could not (1) recite the alphabet beyond the letter p, (2) walk heel-to-toe beyond four steps, (3) walk and turn without losing his balance, or (4) stand on one leg.

       The defendant does not contest compliance with General Statutes § 14-227b (b).

       We further note that decisions of the Superior Court are not binding on this court. State v. Johnson, 28 Conn. App. 708, 716 n.5, 613 A.2d 1344 (1992). Because Dorman v. DelPonte, 41 Conn. Sup. 437, 582 A.2d 473 (1990), is readily distinguishable from the present case, we do not consider the propriety of the Superior Court’s ruling.