text:
    State of Connecticut v. John Joseph Elliott
    (3219)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 6
    decision released August 19, 1986

      Francis T. Mandanici, for the appellant (defendant).

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

After a trial to a jury, the defendant was convicted of two counts of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4), and two counts of unlawful restraint in the first degree, in violation of General Statutes § 53a-95 (a). The defendant appeals from the judgment rendered, claiming error (1) in the trial court’s denial of his motion to suppress identification evidence, (2) in the exclusion of testimony by an expert witness concerning eyewitness identification, (3) in the failure to instruct the jury on the dangers of misidentification, (4) in the court’s allegedly imposing, sua sponte, an increased sentence on the defendant three days after giving him a legal sentence, (5) in the denial of the defendant’s motion for a mistrial filed in response to the state’s alleged suppression of exculpatory evidence, and (6) in the allegedly ineffective assistance rendered at trial by defense counsel.

The jury could have reasonably found certain relevant facts based upon the evidence presented. A young adult woman returned to her home and, as she drove her car into the driveway, she saw an unidentified male standing near a car. As she exited her car, the male produced a gun and forcibly led her into her house.

Once inside the house, the assailant tied the woman’s hands behind her back and left her on the bed in her room. The assailant then searched her room, taking her jewelry box and some money in the process. The assailant next led her through other parts of the house, which he had examined prior to her arrival, in a further search for valuables. He returned to his car, taking the victim with him, in order to deposit the stolen merchandise. He then returned to the house, went upstairs to the master bedroom and forced her to lie face down on the bed. The assailant tied her up again, including handcuffing her hand to her foot. Throughout this time, she was able to observe her assailant several times at extremely close range.

As he was searching the bedroom, the victim’s mother returned home. As she was looking through the house for her daughter, the assailant pointed the gun at her and forcibly took her upstairs to the same room where he had left her daughter. He also forced her to lie face down on the bed next to her daughter while he tied her up. The assailant then searched the room for valuables, asking the victims several questions in the process. Although they were tied up, both victims were able to observe their assailant during this time at close range and in good lighting conditions. After completing his search for valuables, the assailant left the premises. After freeing herself, the mother reported the incident to the police.

During the course of the police investigation, the mother viewed several photographic arrays containing pictures of possible suspects. Approximately four months later, she selected a photograph of the defendant as her assailant from a photographic array of eight black and white photos. She also made an in-court identification of the defendant at trial. Although the daughter selected several photographs which “looked like” her assailant, she was unable to make a positive photographic identification of the defendant. She was, however, able to make an in-court identification of the defendant.

The defendant’s first claim of error is that the trial court erred in denying his motion to suppress the identification evidence. The defendant took an exception to that denial. The defendant challenges the reliability of the identifications and also claims that they were made under suggestive circumstances. Specifically, the defendant claims that the mother’s identification was suggestive because the photograph she selected was the only one in the array with a white border, all the other photographs having black borders, and because it was the only one with any information on the back of the photograph. As for the in-court identification made by her daughter, the defendant claims that it was unnecessarily suggestive because it was made while the defendant was either in the courthouse or sitting at counsel table.

“Our courts have repeatedly held that a defendant who attempts to suppress identification evidence has the burden of proving that the identification resulted from an unconstitutional procedure. See State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Anderson, 6 Conn. App. 15, 21 n.4, 502 A.2d 446 (1986). In order to determine whether the identification procedures violated the defendant’s due process rights, a case by case inquiry must be made as to (1) whether the identification procedures were unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. See State v. Findlay, 198 Conn. 328, 336-37, 502 A.2d 921 (1986); State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985).” State v. Frazier, 7 Conn. App. 27, 34, 507 A.2d 509 (1986); see also State v. Vaughn, 199 Conn. 557, 563, 508 A.2d 430 (1986); State v. Wiggins, 7 Conn. App. 95, 99, 507 A.2d 518 (1986).

A review of the record in this case indicates that the identification procedures employed by the police were not impermissibly suggestive. The defendant’s claim, that the mother’s identification was made under suggestive circumstances because of differences in his photograph, is without merit. Differences in the size and color of the photographs presented in an array, in and of themselves, do not make the array, or the individual photographs, impermissibly suggestive. See State v. Fullwood, supra, 246-47; State v. McKnight, supra, 571; State v. Davis, 175 Conn. 250, 254, 397 A.2d 1347 (1978). Furthermore, this victim testified that she did not notice the different border on the defendant’s photograph in making her identification, but only took notice of the difference when it was pointed out to her on cross-examination by defense counsel.

The defendant’s claim that the daughter’s identification of the defendant was made under suggestive circumstances is similarly unpersuasive. It is undisputed that she failed to make a pretrial identification of the defendant. Her positive identification of the defendant as her assailant came at the close of her direct testimony, and did not involve an identification procedure employed by the police. On cross-examination, she testified that she first recognized the defendant when she entered the courtroom earlier that day in order to testify on the motion to suppress identification evidence. “The general rule regarding in-court identification of a defendant where there has been no pretrial identification is that it is admissible within the discretion of the trial court, with the weight of the identification to be determined by the jury. United States v. Samalot Perez, 767 F.2d 1, 3 (1st Cir. 1985).” State v. Frazier, supra, 37; see also State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986). The trial court was correct in denying the defendant’s motion to suppress the identification evidence in this case.

The defendant’s second claim of error is that the trial court erred in refusing to admit into evidence the testimony of an expert witness concerning eyewitness identification. At trial, the defendant sought to introduce the expert testimony in order to illustrate the danger of misidentification associated with eyewitness identification. The defendant argues that the testimony should have been allowed in order to balance what the defendant claims was the state’s bolstering of the victims’ identifications. The defendant argues that because the state introduced evidence that the victims were an artist and a teacher, respectively, this elevated their testimony to that of “quasi-experts” and, therefore, in the totality of the circumstances, the expert’s testimony on the dangers of misidentification should have been allowed.

As a general rule, the test for the admissibility of expert testimony is whether the witness offered as an expert has any particular knowledge or experience which renders the opinion founded on such knowledge or experience an aid to the court or the jury in determining the question in issue. See State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); State v. Apostle, 8 Conn. App. 216, 232, 512 A.2d 947 (1986). In State v. Kemp, 199 Conn. 473, 474-75, 507 A.2d 1378 (1986), our Supreme Court addressed the issue of whether the trial court erred in excluding expert testimony on the potential for inaccuracy in eyewitness identification of criminal participants. In reviewing the trial court’s decision, the Supreme Court stated that “[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983). The court’s ‘decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976).’ State v. Biller, supra.” (Brackets in original.)State v. Kemp, supra, 476.

In this case, the trial court did not abuse its discretion in excluding the expert testimony. The reliability of eyewitness identifications is within the common knowledge of the average person and the trial court correctly concluded that such testimony would not materially assist the jury in resolving the issue. See State v. Kemp, supra, 476-77. The jury was in a position to evaluate the identification evidence presented in the case without the assistance of expert testimony. Id., 478; see also State v. Apostle, supra; Commonwealth v. Francis, 390 Mass. 89, 98-102, 453 N.E.2d 1204 (1983).

The defendant’s third claim of error is that the trial court erred in not fully instructing the jury on the dangers of misidentification. Specifically, the defendant claims that the trial court erred in not giving a jury instruction based on United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972).

Although such an instruction may be given in an appropriate case; see State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); it is not reversible error for a trial court to refuse to give a Telfaire instruction where the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986). Our review of the charge to the jury on this issue, when examined as a whole, indicates that it was clear, accurate, complete and comprehensive. See State v. Harrell, 199 Conn. 255, 268-71, 506 A.2d 1041 (1986); State v. Frazier, supra, 37 n.3. The charge fairly and adequately presented the issue to the jury so that no injustice was done to either party in the case. See State v. Davis, supra, 686; State v. McKnight, supra, 583. The trial court was not required to charge the jury in the identical language requested by the defendant, as long as its instructions were adopted to the issues involved in the case and were sufficient for the guidance of the jury. See State v. Harrell, supra, 269; State v. Frazier, supra.

The defendant’s fourth claim of error is that the trial court erred in allegedly imposing, sua sponte, an increased sentence on the defendant three days after giving him his original sentence. At a sentencing hearing held on April 13, 1984, the trial court sentenced the defendant to an effective sentence of not less than ten nor more than fifty years imprisonment, to be served consecutive to a term of imprisonment the defendant was serving in New York. On April 16,1984, the trial court had the defendant returned to the court in order to clear up what the court characterized as a “misconception” in the defendant’s sentence. The court then proceeded to sentence the defendant to a total effective sentence of not less than twenty-five nor more than fifty years.

On appeal, the defendant argues that the original sentence imposed on April 13,1984, was a legal sentence and that the trial court had no jurisdiction to recall him to court and impose a new sentence. The defendant claims that because the original sentence was a legal one, the trial court could not correct it under Practice Book § 935. The state does not dispute that the original sentence was legal.

“Practice Book § 935 provides that the judicial authority may correct an illegal sentence at any time. The illegality of the sentence is a necessary prerequisite to the court’s correction of that sentence pursuant to § 935. State v. Davis, 190 Conn. 327, 335, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983).” State v. Gaskin, 7 Conn. App. 131, 133, 508 A.2d 40 (1986). In this case, the sentence originally given by the trial court was a legal sentence, even though it was a lesser sentence than the trial court intended. Thus, the trial court’s subsequent increase of the defendant’s sentence cannot be justified as the correction of an illegal sentence under Practice Book § 935.

As a general rule, a criminal sentence “cannot be modified by the trial court, even at the same term, if the sentence was valid and execution of it has commenced.” Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934); Viel v. Potter, 20 Conn. Sup. 173, 177, 129 A.2d 230 (1957). If there is no indication to the contrary in the record, it may be presumed that execution of the original sentence commenced promptly after it was imposed. See State v. Heyward, 152 Conn. 426, 428, 207 A.2d 730 (1965); State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964). The record in this case indicates that the defendant began serving his sentence on April 13,1984, pursuant to a mittimus issued on that date.

We recognize that a trial court has very broad discretion in imposing any sentence within the statutory limits; see State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986); State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986); and that “ ‘[sentencing should not be a game in which a wrong move by the judge means immunity for the prisoner.’ King v. United States, 98 F.2d 291, 296 (D.C. Cir. [1938]).” State v. Langley, 156 Conn. 598, 602, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969); see also State v. Huey, supra, 132 (Healey, J., concurring). Under the circumstances in this case, however, we must conclude that the trial court erred in imposing an increased sentence where execution of the original legal sentence had commenced.

The defendant’s next claim of error is that the trial court erred in denying his motion for a mistrial which was based upon the state’s late disclosure of allegedly exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). At trial, it was revealed that during the course of the police investigation, it was learned that, shortly before the incident took place, a neighbor of the victims briefly spoke with a male, who fit the description of their assailant. This information was not disclosed in the state’s response to the defendant’s motion for discovery and inspection on the ground that the state’s attorney who conducted the discovery did not consider the information to be of an exculpatory nature. This witness was later unable to make a positive photographic identification of the defendant. When the allegedly exculpatory material was revealed at trial, the court offered defense counsel an immediate continuance in order to investigate further whatever information the witness would be able to provide. Defense counsel declined the trial court’s offer of a continuance and took an exception to the court’s denial of the motion for a mistrial.

The trial court’s denial of the defendant’s motion for a mistrial did not constitute an abuse of discretion. “The general rule in this state is that a mistrial should be granted only when it is apparent to the court that some occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial. State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980).” State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886 (1986). “In order to establish a violation under Brady and its progeny, this defendant has the burden of demonstrating not only that the state suppressed information that was favorable and material to him but also that it was not disclosed upon request.” State v. Pollitt, 199 Conn. 399, 413, 508 A.2d 1 (1986). In this case, the defendant failed to establish that the state suppressed information favorable to him or that the failure to disclose the allegedly exculpatory information deprived him of a fair trial. No determination was made as to whether the evidence was actually exculpatory and material in nature. “Whether the tardy disclosure of Brady material fairly requires a continuance or a delay in order to make effective use of such matter is essentially a factual question in each case.” State v. Pollitt, supra, 414. In this case, the trial court was clearly willing to grant the defendant a continuance, which would have been proper under the circumstances in order to allow the defendant an opportunity to determine the true nature of the information. By declining the trial court’s offer of a continuance and choosing instead to stand on the motion for a mistrial, the defendant effectively precluded an inquiry into whether the information was exculpatory or not. Under these circumstances, the trial court properly denied the defendant’s motion for a mistrial.

The defendant’s final claim is that he was denied effective assistance of counsel. He argues that his counsel should have accepted the trial court’s offer of a continuance for the purpose of investigating the exculpatory information which was disclosed at trial. The defendant claims that the failure to do so constituted ineffective assistance of counsel. Our courts have repeatedly stated that all claims of ineffective assistance of counsel are more properly pursued on a petition for a new trial or on a petition for a writ of habeas corpus, rather than on direct appeal. See State v. Lizzi, 199 Conn. 462, 472, 508 A.2d 16 (1986); State v. Pardo, 199 Conn. 354, 358, 507 A.2d 461 (1986); State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Farrar, 7 Conn. App. 149, 163, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that the original sentence imposed by the trial court shall be reinstated.

In this opinion the other judges concurred.

       The defendant was granted permission to file his own supplemental brief pro se. The issues as stated in his brief are (1) whether he was deprived of a fair trial and due process because of the state’s failure to disclose allegedly exculpatory material, (2) whether the trial court abused its discretion by offering him a continuance instead of granting his motion for a mistrial, and (S) whether he was denied effective assistance of counsel.

       The parties dispute the circumstances under which the daughter made her initial identification of the defendant. Although the record indicates that she recognized the defendant when she walked into the courtroom to testify on the motion to suppress, no further details regarding the conditions of her initial identification were placed on the record.

       Even if we were to assume that the identification procedures were impermissibly suggestive, our review of the evidence presented in this case indicates that they were nevertheless reliable under the totality of the circumstances. See State v. Davis, 198 Conn. 680, 688-84, 504 A.2d 1372 (1986); State v. Perez, 198 Conn. 68, 75, 502 A.2d 368 (1985); State v. Wiggins, 7 Conn. App. 95, 101 n.3, 507 A.2d 518 (1986); State v. Frazier, 7 Conn. App. 27, 36-37, 507 A.2d 509 (1986).

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


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Paul J. Williams
    (3764)
    Borden, Daly and Bieluch, Js.
    Argued June 11
    decision released August 19, 1986

      Paul J. Williams, pro se, the appellant (defendant), with whom was Richard E. Gruskin.

      Elizabeth B. Leete, special assistant state’s attorney, with whom, on the brief, was Steven M. Sellers, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

This case involves the installation of a radar detector in a car. The defendant appeals from the judgment of conviction of a violation of the department of motor vehicles (DMV) regulation § 14-137-1. That regulation, which was promulgated pursuant to General Statutes § 14-137, prohibits the installation or use of any device designed to give advance information to a motorist of the use of a radar speed-indicating instrument in the area of the highway which the motorist is approaching. The sole claim properly before this court is whether the trial court erred in concluding that the radar detector had been installed by the defendant. We find no error.

The trial court could reasonably have found the following facts: The defendant was operating his car on route 2 in the Glastonbury-Manchester area when he was stopped by a police officer. The officer checked the car’s registration and determined that the defendant was its owner. The officer observed a radar detector mounted on the dashboard and the defendant admitted to the officer that the device was a radar detector. The officer did not know whether there was a cord hanging from the device or how the device was mounted on the dashboard.

The defendant, who was represented by counsel, did not testify or offer any evidence at trial. At the close of the state’s case, the defendant moved to dismiss the information on the ground that there was no evidence that the device was installed or that the defendant was the person who installed it. The trial court found as a matter of law that the radar detector was installed within the meaning of DMV regulation § 14-137-1. In support of this conclusion, the court noted that “[t]he device was clearly in a position from which it could be put to its intended use and whether it was mounted on the dashboard with screws or velcro strips or some other implement is immaterial. It was positioned in the automobile so that its purpose could be fulfilled.” The court found that the defendant was aware of the presence of the radar detector located on the dashboard in front of him. The court further found that since he was the owner of the automobile, the device had been installed by him or with his acquiescence. On appeal, the defendant claims that the evidence was insufficient to support the finding that the radar detector was installed or that the defendant installed it. We disagree.

DMV regulation § 14-137-1 provides: “No device designed to give advance information to a motorist of the use of a radar speed-indicating instrument in the area of the highway which such motorist is approaching may be installed or used in any motor vehicle operating on the highways of Connecticut.” Pursuant to General Statutes § 14-137 (a), the violation of this regulation constitutes an infraction. The prohibited act is installation or use of a radar detector in a motor vehicle. State v. Anonymous (1979-3), 35 Conn. Sup. 659, 661, 406 A.2d 6 (1979) (mere possession not prohibited). In the present case, the issue is whether the device was installed.

Prior to the defendant’s conduct in this case, the meaning of the term “installed” was clarified on July 18, 1984, in a declaratory ruling of the commissioner of motor vehicles. That ruling provides: “As used in Section 14-137-1 of the regulations of the department the word ‘installed’ refers to a device which is so affixed or situated that the device is capable of being activated by the operator of the vehicle while driving.” An agency is fully empowered to interpret its own regulations. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496-97, 512 A.2d 199 (1986).

The trial court’s findings clearly encompass each aspect of the offense of installation of a radar detector. The court specifically found that the device was located on the dashboard in front of the defendant. He was aware of its presence and it was positioned in such a way that its purpose could be fulfilled. The device was clearly “capable of being activated by the [defendant] while driving.” These findings satisfy the definition of the term “installed.”

Although there is dictum of the Appellate Session of the Superior Court in State v. Anonymous (1979-3), supra, which tends to suggest that the regulation requires proof that the defendant personally installed the device, we find no such requirement in the terms of the regulation as clarified by the declaratory ruling of the commissioner. In addition, since that declaratory ruling was rendered subsequent to the Appellate Session’s decision in State v. Anonymous (1979-3), supra, any questions raised by the dictum in that case have obviously been resolved.

There is no error.

In this opinion the other judges concurred.

       The defendant also claims that the regulation is unconstitutionally vague and that General Statutes § 14-137 impermissibly delegates legislative authority to the DMV in violation of the constitutional separation of powers provision. These claims, however, were not properly raised at trial and we therefore decline to review them.
      At trial, defense counsel summarily stated that these additional issues were relevant to the case. He did not, however, elaborate further upon this broad, conclusory statement. Further, although the trial court indicated that it would continue the matter in order to allow time for the state to submit a brief on the principal issue before the court, namely, whether the state’s proof was sufficient under the regulation, the defense counsel specifically declined to file a brief. Thus, under these circumstances, we decline to review the merits of claims “constitutional or otherwise that [have] not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).


author: Hull, J.

text:
    State of Connecticut v. Joel B. Millstein
    (2819)
    Hull, Daly and Bieluch, Js.

      Argued April 2
    decision released August 26, 1986

      W. Paul Flynn, with whom was Howard A. Lawrence, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Kevin McMahon, assistant state’s attorney, and Mary Glassman, law student intern, for the appellee (state).
   Hull, J.

After a jury trial, the defendant was convicted of arson in the second degree, a violation of General Statutes (Rev. to 1979) § 53a-112. He now appeals from the judgment of conviction rendered on the verdict, claiming that the trial court erred: (1) in admitting into evidence statements he made to the police; (2) in permitting the state to make reference to an ethnic stereotype in its examination of several witnesses and in its closing argument; (3) in refusing to strike, as violative of Practice Book § 755, testimony given by a police officer; (4) in admitting “identification” testimony; and (5) in denying his motion for judgment of acquittal. We find no error.

The jury reasonably could have found the following facts. Shortly after 11 p.m., on July 10, 1980, three youths who were riding their bicycles on Main Street in Glastonbury noticed smoke coming from Augie’s Restaurant. One of the young men went to the nearby police station and reported the fire. The officer who received the information arranged to have the fire department notified and then proceeded to the restaurant. On arriving at the scene of the fire, the officer checked the perimeter of the building and saw that the front doors were unlocked and that one of the doors was ajar. Shortly after the officer completed his initial check of the area, members of the fire department arrived. They immediately smelled gasoline and one of the firefighters noticed that the floor was slippery and covered with some kind of liquid. Later, the firefighters discovered three plastic containers which held an orange liquid that later was determined to be gasoline, behind the restaurant’s food counter. A fourth container was found near the locked and bolted rear door. The defendant filed a claim against his insurance company for the damage the fire caused to the restaurant.

For several months preceding the fire, business had dropped off at Augie’s. Many of the restaurant’s suppliers had reduced their credit terms from thirty days to seven days, and then to cash on delivery. On a few occasions during this time period, the defendant approached friends and discussed selling either Augie’s, or his other business, Dave’s Original Bagels. In the year before the fire, the defendant had discussed burning down one of his businesses with two individuals and had offered money to one of them to do so.

Approximately eight months before the fire, the defendant called his insurance agent and asked that the coverage on Augie’s be increased from $41,000 to $135,000. The agent felt that the amount the defendant wanted was disproportionate to the value of the building and its contents. In addition, the defendant was already behind in paying his premiums. The agent therefore refused the requested increase. Either the day of, or the day before the fire, the agent called the defendant and informed his wife that the insurance on the restaurant would be cancelled unless he received at least a $1000 payment on the outstanding balance within ten days.

On the day of the fire, the defendant called his nephew, who worked at a gas station, and told him that he had run out of gasoline. As a result of this call, the nephew put two and one-half gallons of gas in the trunk of the defendant’s car. At around 8 p.m. that evening, Alan Mitchell, the father of one of the defendant’s employees, saw an individual pull his car up to the side door of the restaurant. Mitchell noticed that the individual, whom he thought was the defendant, was unloading things from his trunk. He, therefore, went over to offer help. Mitchell took a box, in which he saw four plastic containers with an orange liquid in them, into the restaurant. Later in the evening, the defendant returned to the restaurant and, using the gasoline as an accelerant, set fire to the building.

The defendant first claims that the police elicited certain statements from him in violation of his right to remain silent as guaranteed by the fifth amendment to the United States constitution and interpreted by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He argues that the trial court therefore erred in allowing a police officer to testify as to the substance of the statements. Because the defendant withdrew his objection to the admission of the testimony at trial, we decline to review this claim of error.

At trial, the state sought to elicit testimony from Steven Oborski, a Glastonbury police officer, concerning certain statements the defendant had made to him. The defendant objected arguing, inter alia, that his oral statements to Oborski were inadmissible because he had not been told, pursuant to the United States Supreme Court’s decision in Miranda v. Arizona, supra, that he had a right to remain silent. The defendant argued that he was entitled to Miranda warnings because, at the time the questions were asked, the police had begun to focus their investigation on him. The trial court recessed court to allow defense counsel time to research the issue. When court reconvened, defense counsel conceded “that the threshold question in regard to statements of the defendant is custody.” He also stipulated that “there is no question [that the defendant] was not in custody at that time nor is there an issue of voluntariness, that he was [at the police station] voluntarily . . . . ” Counsel then expressly withdrew his Miranda-based objection.

In general, “appellate review of all issues, even constitutional issues, [is limited] to those on which the trial court has had an opportunity to rule. Practice Book § 3063 . . . .” State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Where a party makes an objection and then withdraws it, the trial court has no such opportunity. The defendant has not shown, nor does the record reveal, any exceptional circumstances which would persuade us to exempt this case from the general rule. Accordingly, we decline to review this claim of error. See State v. Miner, 197 Conn. 298, 305, 497 A.2d 382 (1985) (claim of error in admission of testimony unreviewable where objection to admission withdrawn at trial and where record inadequate as a result).

The defendant’s second claim is that he was deprived of a fair trial by the state’s use of the term “Jewish lightning” in its examination of several different witnesses and in its closing argument, and by the trial court’s use of the term during its instruction to the jury. According to the defendant, the use of this term encouraged the jurors to form an inference of guilt based not on the evidence but on an ethnic stereotype: that Jews as a character trait commonly commit arson to defraud insurance companies rather than suffer business failures. The state argues that this court should not review this issue because the defendant never objected on this ground at trial. We agree with the state’s position.

The challenged references to the term “Jewish lightning” arose in the following situations. To establish a motive for the arson, the state called several members of the “coffee group,” regulars at Augie’s who were friends of the defendant. They testified about the decline in the defendant’s business, the defendant’s financial troubles, and his attempts to sell the restaurant. During the direct examination of Rocco Malena, one member of the group, the state asked whether the defendant had ever said anything about what he wished would happen to the business. Malena answered that the defendant had expressed a hope that the building would burn down. When cross-examining Malena, defense counsel, in an attempt to cast doubt on the seriousness of the defendant’s statement, first referred to “Jewish lightning” in the following manner:

“[Defense Counsel]: Wouldn’t it be fair to say that the coffee group and joking around, you used to joke with [the defendant] about ‘Jewish lightning’ and his business?
“[Malena]: Oh, definitely.
“[Defense Counsel]: You know that Joel Millstein is Jewish?
“[Malena]: Right.
“[Defense Counsel]: That was kind of a joke among the guys because he was involved in a restaurant business and he is Jewish: right?
“[Malena]: Urn hum.”

In an attempt to rebut the implication raised during cross-examination that the defendant had been joking when he said he wished his building would burn down, the state, during its redirect examination of Malena, referred to “Jewish lightning” as follows: “This joking about ‘Jewish lightning’ was a general thing but he wished it would burn down two or three months before the actual fire?” When Malena refused to acknowledge any distinction, the state pressed this point stating: “Are you saying that you took the way he was talking two or three months before the fire in a more serious vein than your normal joking about Jewish Lightning?” Malena still refused to acknowledge any distinction.

The third challenged reference to “Jewish lightning” made by the state occurred when Ronald Molina, another member of the coffee group, was being examined on direct. The state asked Molina whether it was “a regular topic — the term ‘Jewish lightning’ that came up in your conversation?” Again, during the examination of Ronald Cheney, yet another member of the group, the state asked whether the talk about “Jewish lightning” was a common topic. Cheney responded that the topic “came up.” Thereafter, the term was mentioned by the state, defense counsel and witnesses in relation to the coffee group’s conversations.

During closing argument, the state reviewed the evidence given by the coffee group members and, in so doing, made the following reference to “Jewish lightning”: “I am just going to hit some of the highlights of each of the testimony. We have Mr. Cheney, Mr. DeBella. These are the friends, Ron [Molina], Rocky Malena, Butch D’Alessandro and Paquin. Ron Cheney, said [the defendant] wanted to sell the business, said business was off, employee problems, ‘Jewish lightning’ .... Ron [Molina] said business ‘definitely dropped off,’employee problems,‘Jewish lightning.’ . . .Some other interesting comments by Rocco Malena, he said that on two or three occasions, the defendant said that he wished the business would burn down. Has ‘Jewish lightning’ gone down to a wish, a sentiment, an intent, a motive? Is it forming at this time?”

The final reference to which the defendant objects was made by the trial court during its charge to the jury. While instructing the jury, the court charged that it could “consider and give such weight as [it felt] appropriate to the comments from the members of the coffee group concerning the constant or apparently continual reference to ‘Jewish lightning’ and the business.”

While the defendant now claims that the use of the term “Jewish lightning” deprived him of his right to a fair trial, he never objected or excepted to the state’s or the trial court’s use of the term. Nor did he request that the jury be cautioned against drawing a prejudicial inference, or move for a mistrial. This court has recently reiterated the general rule that “ ‘where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974).’ ” State v. Salz, 8 Conn. App. 125, 138, 512 A.2d 921 (1986), quoting State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986).

This court may, of course, review a claim of error even absent the appropriate objection and exception if the challenged action constitutes plain error; Practice Book § 3063; or if the challenged action implicates a fundamental constitutional right and the record adequately supports the claim that the defendant was deprived of that right; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Here, the defendant has claimed that the comments deprived him of his fundamental constitutional right to a fair trial and the record is adequate for us to review that claim. Accordingly, we next consider whether the defendant was deprived of his right to a fair trial. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986).

To show that a prosecutor’s comments deprived him of a fair trial, a defendant bears the burden of showing that the remarks were prejudicial in light of the entire proceeding. State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984). “The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” Id. Our extensive review of the challenged portions of the testimony and the closing argument shows no unfairness in the proceedings. Contrary to the defendant’s claim, the state did not use the term “Jewish lightning” in a manner which would invite or encourage the jurors to convict the defendant based on his ethnicity. Rather, the term was used by both defense counsel and the state as a shorthand way of saying arson. While we agree with the defendant that the use of the term in such a manner was highly offensive and inappropriate, we cannot agree with his further claim that its use deprived him of a fair trial. This is especially so given the overwhelming evidence of the defendant’s guilt. Where evidence of guilt is substantial, prejudice is unlikely. We conclude that, under these circumstances, the defendant has not shown that he was prejudiced by the remarks.

The defendant also claims that the trial court’s comments violated his due process right to a fair trial. The precise nature of this claim is not clear. It appears, however, that the defendant is in effect arguing that, through its charge, the court invited the jury to convict him based on his ethnicity, not on the evidence. We emphatically reject this claim. The use of the term “Jewish lightning” which the defendant challenges consisted of a single comment the court made when reviewing witness testimony: “You may also consider and give such weight as you feel appropriate to the comments from the members of the coffee group concerning the constant or apparently continual reference to ‘Jewish lightning’ and the business.” While it would have been preferable for the court not to use the term, there is no support for the defendant’s argument that in so commenting, the court was appealing to ethnic bias. Rather, the court was referring to the evidence in the same language used by defense counsel and then by the witnesses and the assistant state’s attorney.

We acknowledge that “ ‘a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended.’ ” State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985), quoting State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446 (1977). Additionally, we recognize the invidious and offensive nature of all stereotypes, racial, ethnic, religious, sexual or other. We must conclude, however, that in these circumstances the trial court’s comments did not deprive the defendant of a fair trial. Accordingly, the record does not adequately support the defendant’s claim that he was deprived of a fundamental constitutional right and we, therefore, decline to consider this claim of error.

In his third ground of error, the defendant challenges the trial court’s failure to strike, pursuant to Practice Book § 755, testimony given by a police officer despite the fact that statements he had previously made relating to the subject matter of his testimony were not available for inspection at trial. The state called officer Thomas McKee of the Glastonbury police department, the shift supervisor the night of the fire. McKee testified that he had informed the defendant of the fire. During cross-examination, McKee admitted that he had prepared a written report in connection with his conversation with the defendant. He was then asked if he had his report with him, and he indicated that he did not because the report had been lost. The state interrupted the questioning and acknowledged a duty under Practice Book § 752, Connecticut’s version of the Jencks Act, to disclose the statement. It then outlined the efforts that had been made to find the reports. The court noted the state’s remarks but did not strike the witness’ testimony.

The defendant now claims that the trial court erred by not striking the testimony. In so arguing, he relies on Practice Book §§ 752, 753 and 755. Under Practice Book § 752, “[a]fter a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.” Practice Book § 753 provides that where, as here, “[t]he entire contents of a statement requested under Sec. 752 relate to the subject matter of the testimony of the witness, the judicial authority shall order the statement to be delivered directly to the defendant and or his counsel for his examination and use.” (Emphasis added.) If the prosecution chooses not to comply with the court’s order to deliver the statement, “the judicial authority shall strike from the record the testimony of the witness . . . . ” (Emphasis added.) Practice Book § 755. Our Supreme Court has interpreted the provisions of Practice Book § 752 as mandatory. See State v. Anonymous (83-FG), 190 Conn. 715, 732, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982). Accordingly, the defendant argues that the trial court erred by not striking the testimony and claims that his conviction, therefore, must be reversed.

While the defendant is correct in claiming that the requirements of Practice Book § 752 are mandatory, he is incorrect in implying that the trial court always lacks discretion to decide whether to strike witness testimony under Practice Book § 755. In several recent cases; State v. Vessichio, 197 Conn. 644, 661, 500 A.2d 1311 (1985); State v. Milum, 197 Conn. 602, 617, 500 A.2d 555 (1985); State v. Myers, 193 Conn. 457, 467, 479 A.2d 199 (1984); and State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); our Supreme Court considered whether a trial court must strike witnesses’ testimony when otherwise discoverable statements they made are not produced at trial because of unavailability. In those cases, our Supreme Court concluded that sanctions for nondisclosure are not automatic. Rather, the court held that under such circumstances the decision on whether to strike the testimony should be resolved by applying a balancing test: the extent of the state’s culpability for failure to produce the statement weighed against the amount of prejudice to the defendant which resulted from nondisclosure. State v. Shaw, supra, 386; see also State v. Zayas, 3 Conn. App. 289, 295-96, 489 A.2d 380, cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985).

Here, the record discloses very little culpability on the state’s part. The only testimony on this issue at trial revealed that the statement was lost. There was no indication that it had been intentionally destroyed, or that it had been destroyed in accordance with routine police department practice. Cf. State v. Myers, supra, 467-70. Nor is there any indication that the defendant was in any way prejudiced by nondisclosure, and the record shows that the defendant was given ample opportunity to cross-examine McKee, the maker of the missing statement. When faced with a similar situation in State v. Shaw, supra, our Supreme Court found “both halves of the balance opposed to the imposition of a sanction.” State v. Myers, supra, 467. We conclude that the trial court did not err by reaching the same conclusion in this case.

In his fourth claim of error, the defendant challenges the trial court’s decision to admit certain testimony which he characterizes as “identification testimony.” The defendant does not allege an unnecessarily suggestive pretrial identification procedure. Nor does he contend that the courtroom setting was unnecessarily suggestive so as to taint the in-court identification. Rather, the defendant claims that the evidence should have been excluded because it was irrelevant in the light of the witness’ uncertainty about a key point. We disagree.

It is the function of the trial court, not this court, to rule on the relevancy of offered evidence. “On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling.” State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). We conclude that in this case the trial court did not abuse its discretion by admitting the testimony.

The challenged testimony was given by Alan Mitchell, the father of one of the defendant’s employees. Mitchell was called as a witness by the state. During his direct examination, Mitchell testified that he usually waited in his car in Augie’s parking lot for his son, John, to finish work. The state asked Mitchell if he saw the defendant while waiting for his son on the evening of July 10, 1980. He responded: “[t]he night of the fire, I believe he drove in while I was waiting and he drove in with his car which was a, I believe was a, Cadillac Coupe DeVille.” After asking a few additional questions, the state then asked Mitchell whether the defendant was the person he saw unloading the car. Mitchell replied that “[i]t has been so long I would have to say I think so, but I am not that well acquainted with him to say for sure.” He further stated that he believed the person he saw that night was the owner of the restaurant. The state then asked Mitchell what he did when he saw this person unloading the car. The defendant objected arguing that the witness’ inability positively to identify the person as the defendant made his testimony irrelevant. The state asked a further question to overcome the objection and Mitchell explained his hesitation as follows: “I feel that I did not know the gentleman that well and it’s been three years and I assume it is that gentleman, but you could put four or five other people in front of me that might have the same general appearance, and I would have to say that I am pretty sure but I just don’t know.” The court overruled the defendant’s objection finding that it went to the weight of the evidence rather than to its admissibility. The court also indicated that it was for the jury to determine whether the person Mitchell saw drive up in a Cadillac was the defendant. The defendant excepted to the ruling. Mitchell then testified that he helped the individual unload a box from his truck in which, were four plastic jugs of orange liquid.

“The rules governing the determination of relevancy are well established. ‘[EJvidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985).” State v. Franko, 199 Conn. 481, 485-86, 508 A.2d 22 (1986). Here, the challenged testimony related to a material fact: the identity of the arsonist. Mitchell’s testimony included a description of the man who was driving the car. He also testified that the man whom he had assisted was driving a Cadillac Coupe DeVille, the type of car the defendant owned at the time. He testified that the individual was unloading his trunk and taking the contents into the restaurant through' a side entrance. From these facts, the jury could reasonably have concluded that the person Mitchell saw was the defendant. From this evidence, the jury could reasonably have inferred that the defendant was the person who started the fire. Accordingly, the evidence did “[tend] to establish the existence of a material fact.” State v. Talton, supra, 285. The defendant’s claim to the contrary amounts to an argument that evidence is probative only where it proves a material fact. This is not the law. Testimony need not prove a material fact to be relevant but need only make the existence of that fact more probable than it would have been without the testimony. State v. McClendon, 199 Conn. 5, 9, 505 A.2d 685 (1986). The trial court did not err in admitting the evidence.

The defendant’s final claim is that the trial court erred by denying his motion for judgment of acquittal based on the sufficiency of the evidence. According to the defendant, the state failed to produce sufficient evidence that the setting of the fire subjected “another person to substantial risk of bodily injury” as required under General Statutes (Rev. to 1979) § 53a-112. The defendant concedes that the state presented evidence that firefighters were subjected to a substantial risk of bodily injury. He argues, however, that because General Statutes (Rev. to 1979) § 53a-111, as amended by Public Acts 1979, No. 79-570, § 3, arson in the first degree, specifically mentions firefighters as a protected group and General Statutes (Rev. to 1979) § 53a-112, the second degree arson statute, does not, this court must find that the legislature intended not to authorize prosecution for arson in the second degree where only firefighters were subjected to substantial risk of bodily injury.

General Statutes (Rev. to 1979) § 53a-112 defines arson in the second degree as an intentional burning which “subjects another person to substantial risk of bodily injury.” Accordingly, to accept the defendant’s argument, this court would have to hold that firefighters are not “persons.” “A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the General Assembly in enacting the statute is to be derived from the words used. See State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983). A corollary rule is that the words of a statute are to be construed with common sense and ‘according to the commonly approved usage of the language.’ General Statutes § 1-1; State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983).” State v. Pellegrino, 194 Conn. 279, 284, 480 A.2d 537 (1984).

Here, the language of the statute is unusually plain and unambiguous: liability attaches where “another person” is subjected to a substantial risk of injury. The commonly approved usage of the word “person” certainly includes firefighters. Nor do we see anything in the language of §§ 53a-lll or 53a-112 or the history of those statutes which would persuade us that the legislature did not intend to include firefighters within the definition of the word persons. The trial court did not err in denying the defendant’s motion for judgment of acquittal.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      Pursuant to Practice Book § 755, if the prosecution chooses not to comply with the court’s order to disclose the statement, “the judicial authority shall strike from the record the testimony of the witness . ”

       The defendant’s failure to include references to the transcript in his statement of facts as required by Practice Book § 3060F (c) has severely limited our ability to review his claims of error.

       We decline as well to review this claim under the fundamental rights-fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Under Evans and its progeny, appellate review of claims of error which were not properly preserved at trial will be reviewed only in the rare circumstances where a defendant asserts deprivation of a fundamental constitutional right and a fair trial and the record adequately supports that claim. State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986). The defendant has satisfied the first prong of Evans by alleging violation of his right to remain silent as guaranteed by the fifth amendment to the United States constitution. The record, however, does not adequately support the defendant’s claim that he was deprived of this right.
      The United States Supreme Court has held that the fifth amendment to the United States constitution requires the police to inform an individual of his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This requirement applies, however, only where the individual is in custody and subject to interrogation. At trial, the defendant’s counsel conceded that the defendant was not in custody. Accordingly, the record does not support the defendant’s claim that admission of the statements violated his fifth amendment rights.

       18 U.S.C. § 3500.

       In State v. Myers, 193 Conn. 457, 469 n.7, 479 A.2d 199 (1984), our Supreme Court held that “[s]ince access to the statements of witnesses for the prosecuting authority is not a constitutional right. . . the burden of showing prejudice rests on the defendant.” (Citations omitted.)

       General Statutes (Rev. to 1979) § 53a-112 provides in part: “A person is guilty of arson in the second degree when he starts a fire or causes an explosion: (1) With intent to destroy or damage a building (A) of another, or (B) whether his own or another’s to collect insurance for such loss; and (2) such act subjects another person to a substantial risk of bodily injury or another building to a substantial risk of destruction or damage.”

       General Statutes (Rev. to 1979) § 53a-111, as amended by Public Acts 1979, No. 79-570, § 3, provides in part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) a peace officer or firefighter is so close to such building that he is subjected to a substantial risk of bodily injury.”

       Our decision on this claim of error is supported by our Supreme Court’s decision in State v. Moye, 199 Conn. 389, 398-99, 507 A.2d 1001 (1986).


author: Daly, J.

text:
    State of Connecticut v. Darryl Mitchell
    (3532)
    Dupont, C. J., Hull and Daly, Js.

      Argued April 29
    decision released August 26, 1986

      Philip L. Steele, with whom, on the brief, was Richard I. Cohen, for the appellant (defendant).

      Harry Weller, special assistant state’s attorney, with whom, on the brief, were James G. Clark, deputy assistant state’s attorney, and Diane E. Leeds, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of one count of harassment in violation of General Statutes § 53a-183. From the judgment of conviction, the defendant has appealed claiming that the trial court erred (1) in making certain evidentiary rulings, (2) in failing to issue a capias, and (3) in engaging in judicial misconduct.

From the evidence adduced at trial, the jury could reasonably have found the following facts. On October 21, 1983, at about 11:40 p.m., the complainant, Richard Shattuck, answered his telephone whereupon the caller asked to speak with the complainant’s daughter, Dana Shattuck. The complainant informed the caller, who gave his name and whose voice was familiar to the complainant, that none of his children was permitted to receive telephone calls after 9 p.m. The caller responded with obscenities. A second phone call was received by the complainant’s wife shortly thereafter, the same evening. A third telephone call was received by the complainant on April 18, 1984.

The complainant’s daughter had been in the company of the defendant earlier in the evening on October 21, 1983, but had departed for home before the telephone calls were made. The defendant maintained that he did not make the phone calls and had been with two companions at a gas station during the period of time in which they occurred. This appeal followed the conviction.

The defendant claimed that the trial court erred as follows: (1) in not permitting the complainant’s statement to the police to be admitted as a full exhibit; (2) in permitting a defense witness to testify only under special conditions; (3) in restricting cross-examination of a detective; (4) in excluding the testimony of a deputy sheriff; (5) in denying the issuance of a capias for the complainant’s daughter; (6) in sustaining the objection to questions posed to a defense witness on direct examination pertaining to that witness’ impartiality; (7) in engaging in judicial misconduct involving jury instructions, certain comments made on the evidence, and a restriction placed on the defendant’s closing argument; and (8) in admitting into evidence the third telephone call.

The defendant sought to have the complainant’s statement to the police officer admitted into evidence as an inconsistent statement because certain obscenities were omitted from the report along with the failure to mention that the complainant actually recognized the caller’s voice as being that of the defendant. The trial court declined to admit the report into evidence as a full exhibit, finding that the report was not an inconsistent statement. The state’s sole ground for objecting to the admission of the report, and one of the grounds upon which the court relied in sustaining the objection, was that it was not inconsistent with the testimony of the complainant. “While it is clearly proper to attack a witness’ credibility by evidence of his materially inconsistent statements . . . this can only be done if the court is satisfied that the prior statements are in fact inconsistent. ... In the present case, the evidence sought constituted not a statement inconsistent with testimony given on direct examination, but rather an omission, a failure to state certain facts at a prior time.” State v. Reed, 174 Conn. 287, 303, 386 A.2d 243 (1978). “If a former statement fails to mention a material fact presently testified to, which it should have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent.” State v. Chesney, 166 Conn. 630, 636, 353 A.2d 783 (1974); Holden & Daly, Connecticut Evidence § 125 (d) (1).

The omissions in the police report did not constitute an inconsistency with the trial testimony of the witness. Because the defendant had identified himself, there would be no need to state in the report that the complainant recognized the voice. Furthermore, the recital of the obscenities could be deemed repugnant and distasteful to relate in detail.

Even if we assume that the complainant’s statement was inconsistent with his testimony at trial, where “the witness’ attention was called to his prior inconsistent statement, and where he admitted making the statement, his credibility had already been called into question and there was no need for further proof of inconsistency. The trial court is vested with liberal discretion as to how such an inquiry should be conducted . . . .” G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 61, 411 A.2d 31 (1979). We find that there was no error in excluding the report.

In the corridor, immediately prior to trial, Roy Bradrick, a police detective who had interviewed certain witnesses as part of his investigation of the case, refused to speak with defense counsel. On cross-examination, the defendant attempted to pursue this alleged refusal to cooperate in order to demonstrate the bias of Bradrick as a witness. The court found that Bradrick was not biased in any way and that his refusal to speak prior to trial did not demonstrate either a lack of cooperation or prejudice to the defendant.

In support of his claim that the court erred in limiting his cross-examination, the defendant relies on State v. Haskins, 188 Conn. 432, 450 A.2d 828 (1982), where the court indicated that a “mere refusal of a witness to speak to an investigator for one side of a controversy, by itself, is equivocal, but when coupled with a willingness to cooperate with the other side it is quite another matter.” Id., 454. The trial court in Haskins further held: “Partiality of mind whether arising out of favoritism for one side or hostility toward the other is a proper subject of inquiry on cross-examination. . . . Such partiality may be shown not only by direct evidence but also indirectly by conduct or language. . . . But when partiality is claimed circumstantially the inference must be one that can be fairly drawn from the circumstances.” Id. The circumstances of this case fail to come within the purview of Haskins nor do they permit an inference of fixed hostility or sympathy for one party or the other. We therefore conclude that the court did not err in its restriction of the cross-examination of the witness.

The trial court properly refused to allow deputy sheriff Gregory Nesta to testify concerning his inability to serve process on the complainant’s wife and about her reluctance to testify. The trial court can exercise a broad discretion in its rulings on the relevancy of evidence. Holden & Daly, Connecticut Evidence § 67 (c), p. 214. The complainant’s wife was privy only to the second telephone call and her testimony would only have been relevant to the second count which was dismissed.

The defendant claimed that the trial court erred in failing to issue a capias for the complainant’s daughter, Dana, for refusing to obey a subpoena. The defendant argues that had the capias been issued, the daughter’s testimony would have contributed significantly to his alibi defense, in particular that her presence at the gas station overlapped that of the defendant. This testimony, however, would have been cumulative of other testimony presented and, therefore, was not sufficiently material to require the court to issue a capias.

“If one is not warranted in refusing to honor a subpoena and it is clear to the court that his absence will cause a miscarriage of justice, the court should issue a capias to compel attendance. General Statutes § 52-143 does not, however, make it mandatory for the court to issue a capias when a witness under subpoena fails to appear; issuance of a capias is in the discretion of the court . . . [which] has the authority to decline to issue a capias when the circumstances do not justify or require it. . . . Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity.” DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972); see State v. Burrows, 5 Conn. App. 556, 558-59, 500 A.2d 970 (1985), cert. denied, 199 Conn. 806, 508 A.2d 33 (1986). “ ‘ “[T]he action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” ’ ” Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985).

This court reviews the action of the trial court only as to whether that action cannot be supported in reason. The court did not, therefore, abuse its discretion in not issuing a capias for the complainant’s daughter under the particular circumstances of this case.

The defendant claims that he should have been permitted to establish the impartiality of a defense witness on direct examination in anticipation of potentially damaging impeachment evidence which might be elicited on cross-examination. The sole question asked of the witness on this subject was whether his friendship with the defendant would influence his testimony. The court sustained the state’s objection to the question. The defendant obviously asked the question on direct examination, as a “trial tactic in order to anticipate potentially damaging impeachment evidence on cross-examination. ‘Such tactical maneuvering is permissible within the trial court’s discretion.’ Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 7.18, p. 74.” State v. Cox, 7 Conn. App. 377, 388, 509 A.2d 36 (1986). Since the court had discretion to allow or disallow the question, there was no error.

The defendant makes a variety of claims that the trial court engaged in judicial misconduct. The defendant contends that the trial court restricted his closing argument to the jury. The defendant never requested that his closing argument be recorded and, therefore, the appellate record before us, which is the appellant’s responsibility to provide, is insufficient for us to undertake a proper review of the claims on appeal. Bieluch v. Bieluch, 199 Conn. 550, 552, 509 A.2d 8 (1986); Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). “The defendant must have realized that the closing arguments were not being recorded and must be deemed to have assented to that procedure. We have frequently refused to consider claims of improper argument where the remarks of counsel have not been transcribed and could not be reconstructed.” State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983).

The defendant claims that the trial court made certain statements to the jury which were prejudicial to the defendant and exceeded proper standards of conduct during trial. We need not address the substance of these claims because the defendant did not object or take exception to these statements during trial. The issue is, therefore, not properly preserved for appellate review.

The defendant further claims that the trial court abused its discretion by failing to inform the jury in a timely manner that the second count had been dismissed at the completion of the state’s case. The defendant argues that when the second charge was dismissed, the trial court should then have informed the jury and not postponed mentioning the dismissal until the defendant’s closing argument. “This issue was never presented to the trial court by either a request to charge or by an exception taken to the charge as given. Appellate review on this nonconstitutional issue is, therefore, precluded.” State v. Morgan, 179 Conn. 617, 619-20, 427 A.2d 429 (1980).

The defendant’s next claim alleges judicial misconduct in the trial court’s instruction to the jury regarding the friendship between the defense witness Richard Gordon and the defendant. It is within the trial court’s discretion to make “fair comment on the evidence and particularly on the credibility of witnesses.” State v. Stepney, 191 Conn. 233, 248, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984), quoting State v. Cari, 163 Conn. 174, 182, 303 A.2d 7 (1972). “[W]e have also declared that an instruction on the credibility of alibi witnesses similar to that challenged by this assignment of error is both proper and fair when weighed in the light of the other paragraphs of the charge.” State v. Cari, supra. We find no error in the trial court’s jury instruction on the friendship issue.

The defendant further claims that the trial court abused its discretion in attributing the omissions in the complainant’s statement to the officer and not to the complainant. It is within the trial court’s discretion to comment on the evidence in a manner which is reasonable and fair and does not amount to a direction of verdict or a distortion of the issues. State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117 (1976); see also State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985). There was no indication that the court’s comments were unfair or misleading.

The defendant finally claims, that the court erred in admitting into evidence the third telephone call of April 18, 1984, on the ground that it demonstrated a continuing course of conduct. This claim is not reviewable because it was not properly preserved for appeal.

There is no error.

In this opinion the other judges concurred.

       The second telephone call was the basis of the second count of harassment which was dismissed by the trial court at the conclusion of the state’s case.

       This claim of error is not reviewed because no objection was taken or exception made to the introduction of the testimony. Practice Book § 288.

       See footnote 2, supra.


author: Bieluch, J.

text:
    State of Connecticut v. Eric T.

    (3196) (3197)
    Borden, Spallone and Bieluch, Js.

      Submitted on briefs May 9
    decision released August 26, 1986

      Clinton L. A. Wright filed a brief for the appellant (defendant in both cases).

      Bernadette Conway, special deputy assistant state’s attorney, and Gerald Esposito, assistant state’s attorney, filed a brief for the appellee (state).

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

   Bieluch, J.

These appeals arise out of two separate judgments of the trial court, each adjudicating the same defendant to be a youthful offender pursuant to General Statutes § 54-76g by virtue of his commission of a sexual assault in the fourth degree, in violation of General Statutes § 53a-73a, on two successive days. We find error only with respect to the sentences imposed.

The court could reasonably have found the following facts. The defendant was charged, in each of two informations, with one count of sexual assault in the fourth degree arising out of similar incidents which occurred in the same public building on November 29 and November 30, 1983. In the first incident, the defendant approached the victim and placed his hands on her chest and buttocks. On the other occasion, he reached between another victim’s legs and grabbed her genital area.

The defendant was arrested pursuant to separate warrants with respect to each charge. He was arraigned on the same day on both informations and moved for youthful offender status pursuant to General Statutes § 54-76c. Both motions were granted by the court after an investigation as to his eligibility. In each case, the defendant pleaded not guilty to the charges of being a youthful offender. After a combined trial on both informations, the court found in each case that the defendant had committed the underlying offense charged against him in the information, and adjudged him separately in each matter to be a youthful offender. Thereafter, the court imposed separate sentences on each of the two adjudications of the defendant as a youthful offender.

In the first case, in which the defendant was adjudicated a youthful offender for the incident of November 29,1983, he was sentenced to imprisonment for one year, execution suspended, and he was placed on probation for three years. In addition, the court imposed a fine of two hundred dollars. In the companion case, in which he was adjudicated a youthful offender for the incident of November 30, 1983, he was sentenced to imprisonment for one year, execution suspended, this term of imprisonment to run concurrently with the sentence in the earlier case, with probation for three years. Additionally, he was fined two hundred dollars on this adjudication also. The total effective sentence imposed upon the defendant was a term of imprisonment for one year, execution suspended, with probation for three years, and a combined fine of four hundred dollars.

The defendant has appealed, claiming (1) that the court, by its interrogation of witnesses and its attitude toward defense counsel, showed bias in favor of the state, thereby denying the defendant a fair trial, (2) that the court erred in permitting the parents of witnesses to be present in the courtroom during the trial, (3) that the court erred in concluding that the evidence and reasonable inferences drawn therefrom were sufficient to justify its adjudication that the defendant had committed the underlying offenses, and (4) that the defendant received ineffective assistance of counsel. We decline to review this last claim of error because, as our courts have said in the past, a claim of ineffective assistance of counsel is more appropriately pursued by a petition for a writ of habeas corpus. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Rivera, 196 Conn. 567, 571, 94 A.2d 570 (1985); Miller v. Angliker, 4 Conn. App. 406, 416-17, 494 A.2d 1226 (1985).

The defendant’s first claim is that the court’s “cross-examination” of defense witnesses, its interruption of the defendant’s cross-examination of a state’s witness, its statements to witnesses, its direction to the defendant to have a police officer, who had been called by him as a possible witness, testify over the protest of counsel, and its refusal to allow either counsel to argue the defendant’s motion for acquittal, which it summarily denied, showed the court’s bias against him. Nonetheless, a review of the record demonstrates that not a single objection was made by the defendant to any of those claimed incidents of bias. Nor were any of those occurrences demonstrative of judicial bias. “While proof of actual bias is not required in order to obtain a judge’s recusal; Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982); the record must ‘give fair support to [the] claim [of actual bias].’ Szypula v. Szypula, 2 Conn. App. 650, 656, 482 A.2d 85 (1984).” Hartford National Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 581, 506 A.2d 1069 (1986). Upon the record before us, we cannot conclude that there was “the necessary ‘suspicion as to the fairness of the court’s administration of justice’ which is required in order to make a claim of actual bias. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615, 236 A.2d 466 (1967).” Hartford National Bank & Trust Co. v. DiFazio, supra. To the contrary, defense counsel thanked the court at the close of trial for the “leeway” given to him in his first trial and apologized for being “overzealous.”

The defendant’s next claim of error is that the court violated General Statutes § 54-76h, which mandates that a youthful offender proceeding shall be private, when it permitted the parents of a minor witness, who was sixteen years of age, to be present at the trial. Although the defendant, at that time, did not object to the presence of the parents, he now claims the issue as plain error pursuant to Practice Book § 3063. We disagree.

The defendant’s argument essentially calls for a strict interpretation of General Statutes § 54-76h. Such an interpretation, however, would render the entire body of youthful offender procedures “functionally unworkable.” See Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986). If this argument were taken to its logical extreme, the court could not permit the presence of people relevant to the proceedings, such as court staff, to be present at the hearing. While General Statutes § 54-76h does provide that the proceedings “shall be private,” this particular requirement “must be construed with common sense.” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986); State v. Privitera, 1 Conn. App. 709, 721, 476 A.2d 605 (1984).

“In the construction of the statutes, words and phrases shall be construed according to the commonly-approved usage of the language . . . .” General Statutes § 1-1 (a). “Shall be private” commonly means an event shall not be open to the public or be known publicly. The parents of the alleged youthful offender have the right, and even the duty and obligation, to be present at the preceedings. “Whenever any minor charged with the commission of an offense is to appear in any court, he shall be accompanied by one of his parents, if such parent is physically capable of appearing and is within the jurisdiction of such court, or by his legally appointed guardian.” General Statutes § 54-199. A “minor” is “a person under the age of eighteen years.” General Statutes § 1-ld.

There is no parallel statute compelling or allowing the attendance of parents when their minor children are called to testify in a closed or private court proceeding. As parents, however, they may conscientiously and honestly instruct their young children who are prospective witnesses “as to the nature, obligation and sanctions of an oath.” State v. Brigandi, 186 Conn. 521, 538-39, 442 A.2d 927 (1982), quoting Kuczon v. Tomkievicz, 100 Conn. 560, 574, 124 A. 226 (1924). As dutiful parents, therefore, their presence should be allowed in youthful offender proceedings during the testimony of their minor child, notwithstanding its closure otherwise to the public under § 54-76h. Additionally, their minor child’s rights under the fifth amendment to the constitution of the United States protecting against self-incrimination may be exercised by them or their counsel, who may also be present during the minor’s testimony, on behalf of the child.

In this case, the minor witness requested his parents’ presence, but such a request was unnecessary. What was required was that the court instruct the parents of the witness as to the requirement of secrecy concerning the testimony of their child and of the proceedings under the law. This the trial court did. Under these circumstances, we cannot conclude that the court’s action constituted error. The defendant’s statutory right to privacy in these proceedings is not absolute. Witnesses, staff members, and other persons necessary to the conduct of the proceedings may be allowed to be present for a portion or all of the hearing as their presence may be needed for a proper adjudication of the matter.

The defendant’s final claim of error is that the court should have granted his motion for a judgment of acquittal because the state had not met its burden of proof with respect to every element of the crime of sexual assault in the fourth degree. We reject this claim.

The defendant claims that there was no sexual contact, as defined by General Statutes § 53a-65 (3), in either case, because (1) the defendant touched only the victim’s clothing and not her bare skin, and (2) the motive for his action was the winning of a bet, rather than sexual gratification.

It requires little discussion for us to dispose of these arguments. General Statutes § 53a-65 (3) requires only that there be “any contact with the intimate parts of a person ... for the purpose of sexual gratification of the actor.” Thus, as long as the contact was for the purpose of sexual gratification, whether direct or indirect, whether through clothing or bare skin, it will satisfy the definition of “sexual contact.” Under the defendant’s analysis, if he had touched his victims’ bare skin with a gloved hand or with a foreign object, his action would not have been a sexual contact.

Further, the evidence that the defendant’s actions were prompted by a bet which he made with someone does not make his conduct any the less designed for personal sexual gratification. There was testimony by one of the victims that the defendant coupled his touching of her with the comment, “You have a beautiful body.” There was further testimony that the defendant boasted of his acts to others for one to two weeks after the fact. From this evidence, the court could easily have concluded that the nature of the bet was that the defendant was to engage in an unpermitted, unsolicited and unwanted sexual contact with his victim, one which would naturally be sexually gratifying to him. The bet was that the defendant had to “grab the girl.” The choice of where the defendant touched his victim was unquestionably sexual in nature, and is evidence of his intent to commit a sexually gratifying act. Additionally, we note that after the challenge of a bet was met with the first incident, he went and did it again in the same place on the following day, undermining his claim that the satisfaction of a bet was his motivation. Thus, the court did not err in finding that the state had met its burden of proving each element of the offense of sexual assault in the fourth degree in each proceeding.

Our discussion does not end with the defendant’s claims of error, however. We may, in the interests of justice, notice plain error not brought to the attention of the trial court; Practice Book § 3063; and we will do so when public welfare or justice so requires. State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160 (1986); Rindge v. Holbrook, 111 Conn. 72, 75, 149 A. 231 (1930). Justice so requires in this case.

We find that the court erred in sentencing the defendant twice on the basis of his adjudications as a youthful offender. Although the defendant was properly adjudged a youthful offender twice, based upon the two separate underlying charges that were combined for trial, he cannot receive more than one sentence upon simultaneously being adjudicated a youthful offender for more than one offense, and that sentence must conform to the provisions of General Statutes § 54-76j.

The adjudication as a youthful offender is a determination of status, rather than a conviction for the underlying offenses or charges made following the initial arrest. Once a defendant is adjudicated to have the status of youthful offender for one or more underlying criminal acts, the criminality of his conduct is extinguished and he falls within the shelter of the Youthful Offender Act, General Statutes §§ 54-76b through 54-76o, for treatment commensurate with such status and the misbehavior which established it. Such treatment encompasses the imposition of a penalty prescribed by § 54-76j; the expanse of alternative penalties set forth is deep and wide to fit the needs of therapeutic punishment of a youthful offender. Its range even exceeds the penalty allowed for many underlying offenses, such as the Class A misdemeanors which brought the defendant into these youthful offender proceedings.

Under the Youthful Offender Act, a youth between the ages of sixteen and eighteen years may be charged under its terms with being a youthful offender by reason of having engaged in designated criminal conduct. The charge of being a youthful offender, although provable as a crime, does not constitute a crime. The offense is not in the underlying criminal act which a youth has committed, but in thereby being a member of an identifiable group which has been statutorily set aside because of its age and prior conduct record for special treatment or punishment. General Statutes § 54-76b specifically defines a youthful offender to be a minor between the ages of sixteen and eighteen years “who has committed a crime or crimes which are not class A felonies, [and] who has not previously been convicted of a felony or been previously adjudged a youthful offender. ” (Emphasis added.) From this definition, it is clear that multiple crimes, such as those charged in the two present cases, may result, upon proof of one or both underlying charges, in the classification of the defendant as a youthful offender for special treatment under the act. Indeed, if hypertechnically construed, the second of the two adjudications here would be improper because it was rendered when the defendant had previously been adjudged a youthful offender in the first of the two cases tried simultaneously. Therefore, with respect to that second judgment, he would be ineligible for youthful offender treatment because of the first adjudication. Such is not the concept or policy of the legislation in its objectives. A single sweep of its brush collects one and all adjudications as a youthful offender made after a hearing or combined hearings under its terms.

A far more reasonable analysis is suggested by the approach taken by comparable statutory provisions in New York. Section 720.10 (2) (c) of the New York Criminal Procedure Law, like General Statutes § 54-76b, precludes a youth from eligibility for youthful offender treatment if “such youth has previously been adjudicated a youthful offender.” In People v. Cecil Z., 57 N.Y.2d 899, 456 N.Y.S.2d 753, 442 N.E.2d 1264 (1982), as a consequence of a double plea of guilty, the defendant stood convicted of two crimes charged in separate indictments, a weapons charge and a burglary. The trial court sentenced him as a youthful offender on the weapons conviction, but as an adult on the simultaneous burglary conviction. “The court reasoned that once it granted youthful offender treatment on the weapons charge, the defendant was no longer eligible for youthful offender treatment because he had been ‘previously . . . adjudicated’ (albeit the same day) a youthful offender.” People v. Zepada, 87 App. Div. 2d 747, 747-48, 448 N.Y.S.2d 673 (1982). The Appellate Division reversed the trial court with respect to the sentence imposed on the burglary plea, and as so modified, affirmed and remanded the matter for sentencing. Id. The court held, in reaching its decision, that “eligibility for youthful offender treatment must be met at the time the conviction is entered, not at the time when the judge at sentencing exercises his discretion to grant or deny it. The sentencing is the occasion when the court makes its determination whether ‘the eligible youth is a youthful offender.’ ” (Emphasis in original.) Id., 748. On further appeal, the New York Court of Appeals affirmed, holding that Criminal Procedure Law § 720.30 (2) (c) “imposed a restriction only on the eligible youth determination and not the youthful offender determination. The sentencing court was therefore authorized in its discretion to determine that [the] defendant was a youthful offender with respect to either or both convictions.” (Emphasis added.) People v. Cecil Z., supra, 902.

Connecticut’s statutory scheme is unlike that of New York in one relevant respect. In New York, the court’s determination of eligibility for youthful offender treatment is made at sentencing after conviction of the underlying offenses. New York Criminal Procedure Law § 720.20; see also People v. Cecil Z., supra. In Connecticut, however, the court determines a youth’s eligibility for youthful offender treatment prior to trial on the underlying criminal charge. General Statutes §§ 54-76c, 54-76d. Nonetheless, akin to the ruling of the New York Court of Appeals in People v. Cecil Z., supra, we conclude that under our statutory scheme of pretrial eligibility to be adjudged a youthful offender under §§ 54-76c and 54-76d, whether such motion has been granted as to one information containing one or more offenses, or as to multiple informations containing multiple charges, there can be but one trial “for the purpose of determining whether he shall be adjudged a youthful offender.” General Statutes § 54-76e.

Upon a determination of eligibility to be adjudged a youthful offender, the defendant is “required to enter a plea of ‘guilty’ or ‘not guilty’ to the charge of being a youthful offender” by virtue of the underlying offense. General Statutes § 54-76d (b). Eligibility, if granted, applies to each count of one or more informations covered by the defendant’s motion. Upon the completion of trial, or combined trials, there must be a finding of the court on each charge or count of being a youthful offender. “[I]f, after trial, the court finds that he committed the acts charged against him in [any count of] the information[s] or complaintfs], the court shall adjudge the defendant to be a youthful offender [as to such count] and the information[s] or complaint[s] shall be considered a nullity and of no force or effect.” General Statutes § 54-76g.

In each of the two combined trials here, the court found that the defendant had committed the act charged against him in the single count of the information and he was adjudged to be a youthful offender. Since the underlying offenses were misdemeanors, no continuance for a presentence investigation and report by a probation officer was required. General Statutes § 54-9 la. Consequently, the court proceeded to sentence the respondent after his adjudications as a youthful offender.

General Statutes § 54-76j specifies five alternative penalties for those who are adjudicated to be youthful offenders. These penalties are set out in the disjunctive, and the court may impose only one of the sen-fences prescribed by the act. Jacobs, “Connecticut’s Youthful Offender Act,” 45 Conn. B.J. 376 (1971). The clear impact of this provision is that the trial court, in sentencing the defendant on both adjudications as a youthful offender in the combined trials, was limited to only one of the allowed penalties. Instead, it erroneously imposed three separate penalties upon him for his adjudicated status as a youthful offender. In State v. Anonymous (83-FG), 190 Conn. 715, 463 A.2d 533 (1983), our Supreme Court questioned the imposition of more than one sentence after trial where a defendant had been adjudged a youthful offender in two counts for separate criminal violations. Id., 717 n.5. The court, concluding that “the practical effect was the same as if a single sentence had been imposed,” declined to address this issue. Both prison sentences were identical and concurrent and “[n]o question has been raised about the propriety of imposing more than one sentence where a defendant has been adjudicated a youthful offender for several criminal violations.” Id.

We conclude, however, that in the present case, where the defendant has not only been sentenced to two identical and concurrent suspended one year prison terms with three years probation, but also received two additional penalties, each in the form of a fine of two hundred dollars, upon his two adjudications as a youthful offender, he was illegally sentenced under § 54-76j. Where only one penalty was permitted to be assessed against him under the provisions of that statute, three separate penalties were illegally imposed upon him. Since the court did not err, with respect to either information, in finding that the defendant had committed the underlying offenses, we do not reverse the adjudications that he was a youthful offender. There should, however, be only one penalty imposed on the combined adjudications establishing his status as a youthful offender. For that reason, we set aside the judgments of the trial court with respect to the sentences imposed.

There is error in part on both appeals, the sentences imposed by the trial court are set aside and the cases are remanded for resentencing in accordance with this opinion.

In this opinion the other judges concurred.

       Sexual assault in the fourth degree in violation of General Statutes § 53a-73a is a class A misdemeanor for which the maximum penalty is a term of imprisonment for one year or a fine of $1000, or both. General Statutes §§ 53a-28 (b), 53a-36 and 53a-42.

       Since the underlying offense in each of the two youthful offender proceedings was not a felony, a presentence investigation and report by a probation officer was not required under General Statutes § 54-91a. The court therefore sentenced the defendant upon his adjudication as a youthful offender in each proceeding without a continuance for a probation investigation and report.

       General Statutes § 54-76j provides in pertinent part: “The court, upon the adjudication of any person as a youthful offender, may (1) commit the defendant, (2) impose a fine not exceeding one thousand dollars, (3) impose a sentence of conditional discharge or a sentence of unconditional discharge, (4) impose a sentence of community service, or (5) impose sentence and suspend the execution of the judgment. In the latter case, the defendant may be placed on probation for a period not to exceed three years, provided the court in its discretion may from time to time, while such probation is in force, extend such probation for a period not to exceed five years, including the original probationary period. . . . Commitment hereunder shall be for a period not to exceed three years and shall be to any religious, charitable or other correctional institution authorized by law to receive persons over the age of sixteen years.” (Emphasis added.)

       We treat the defendant’s one year suspended sentence with probation for three years on each of the adjudications as one sentence since they were identical and concurrent. State v. Anonymous (83-FG), 190 Conn. 715, 717 n. 5, 463 A.2d 533 (1983). The defendant additionally received a fine in the amount of two hundred dollars on each adjudication, or a total fine of four hundred dollars. Effectively, he received in combination three separate penalties, where under General Statutes § 54-76j only one penalty was allowed upon his adjudication as a youthful offender in one or more matters.