text:
    Bill Conda v. Carl D. Christensen et al.
    (4830)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 12
    decision released July 21, 1987

      Richard Bruno, with whom, on the brief, was Salvatore C. Agati, for the appellants (defendants Keith Mahler et al.).

      Peter J. Ottomano, for the appellee (plaintiff).
   Hull, J.

The plaintiff, Bill Conda, a licensed real estate broker, brought this action against Carl D. Christensen, Frank Lombard, Keith Mahler and I. Kenneth Mahler to recover a real estate commission. After a prejudgment remedy hearing, the case was withdrawn against Lombard and Christensen. After a trial to the court, judgment was rendered for the plaintiff against the remaining defendants. From that judgment, those defendants appeal, claiming that the court erred (1) in finding that a cobrokerage agreement for a real estate commission need not comply with General Statutes § 20-325a, and (2) in finding that the sale of the real estate in question entitled the plaintiff to a portion of the commission earned on the sale.

The court found the following facts. The plaintiff is a real estate broker licensed by the state of Connecticut. He is also the owner of Bill Conda Realty, a real estate business. The defendant I. Kenneth Mahler is a real estate broker licensed by the state of Connecticut. He is also the owner of Mahler Realty (Mahler). The defendant Keith Mahler is a real estate salesman. Prior to January 18,1983, Mahler held an exclusive listing agreement for property owned by American Sheet Metals. On January 18, 1983, in exchange for a cobrokerage agreement giving him 45 percent of the commission earned, the plaintiff revealed that he had found a prospective purchaser, Berco Manufacturing (Berco). The cobrokerage agreement was reduced to writing by Mahler in a letter dated February 1,1983.

Berco gave the plaintiff a $5000 deposit when the contract of sale was drafted. The contract listed the purchase price as $500,000, but was subject to approval by the board of directors of Berco’s parent company, Burndy Corporation (Burndy). Jeremiah Camarota, president of Berco, was told by the plaintiff and Mahler that he should deal directly with Mahler during the negotiations, and need not communicate through the plaintiff.

On March 28, 1983, Camarota informed American Sheet Metals and Mahler that the approval of Burndy was not forthcoming at that time. Pursuant to the “brokerage” provision contained in the contract, the $5000 deposit was split between American Sheet Metals and Mahler. The $2500 retained by Mahler remains in an escrow account.

After the forfeiture of the $5000, Camarota again discussed the property with Mahler. He stated that he was still very interested in purchasing the property, and wished to be informed if another serious buyer came forward so he could have one more opportunity to obtain approval of Burndy. Camarota stated that he did not want the property “sold out from under” him. The court found that he, in effect, requested a right of first refusal.

In a letter dated March 31,1983, Mahler advised the plaintiff that Berco would not be purchasing the property, and that “there is no further responsibility to you from this office.” Some days later, the plaintiff and Kenneth Mahler met fortuitously at the Middlebury post office and discussed the March 31 letter. The parties agreed to contact one another if and when Camarota was ready to proceed with the purchase.

In late August or early September, 1983, Kenneth Mahler contacted Camarota to inform him that another party had made an offer to purchase the property. Camarota subsequently obtained the approval of Burndy’s board of directors to purchase the property. A new contract was drafted and the closing was held on September 22, 1983. The real estate commission from the transaction was $33,000. Approximately 45 percent of that amount is currently held in escrow pending a resolution of this action.

I

The defendants’ first claim is that the court erred in holding that General Statutes § 20-325a, the “real estate commission statute,” does not govern an agreement between brokers. They assert that the cobrokerage agreement in the present case is unenforceable because it does not comply with the statute.

General Statutes § 20-325a provides in relevant part that “(a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter; (b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.” (Emphasis added.)

The question of whether this statute applies to an agreement between cobrokers is one of first impression for Connecticut appellate courts. In support of their position, the defendants cite language in Raveis, Inc. v. Haines, 5 Conn. L. Trib. No. 38, p. 9 (Appellate Session of the Superior Court, No. 819) (1979).

In Raveis, the underlying action by the plaintiff cobroker sounded in misrepresentation and breach of contract. The trial court found for the defendants because the cobrokerage agreement in question did not comply with General Statutes § 20-325a. In upholding the trial court’s action, the Appellate Session of the Superior Court held that § 2Q-325a “applies to brokers and cobrokers alike.” Id. The court in Raveis went on to state: “To the legislative intent is clearly expressed in § 20-325a (b) that every action is encompassed and included in the phrase ‘any action.’ This would include actions based on fraudulent misrepresentation, breach of express contract, joint venture, quasi-contract, implied contract, quantum meruit and the like.”

Such an interpretation of General Statutes was overruled, at least in part, by Holmes v. Preferred Properties, Inc., 190 Conn. 808, 462 A.2d 1057 (1983). In Holmes, the plaintiff was a real estate salesman employed by the defendant Preferred Properties, Inc. While associated with the defendant, the plaintiff induced his friend to list his home with Preferred Properties. The friend signed a listing agreement with the defendant’s office, and the plaintiff conducted an open house showing the property. The plaintiff was then discharged by the defendant. Subsequently, the property was sold and the defendant received a commission. The plaintiff brought an action to recover one-half the broker’s commission pursuant to his employment contract. The trial court applied the requirements of § 20-325a (b) to the written employment contract between the plaintiff and the defendant and, noting that the plaintiffs address was absent from the contract, rendered judgment for the defendant. In setting the judgment aside, the Supreme Court reiterated that listing contracts are governed exclusively by § 20-325a. Id., 811. The court found, however, that the employment agreement was separate and distinct from the listing agreement to which the owner and Preferred Properties were parties. “The plaintiff’s suit did not depend on the listing agreement. This is not an action for a commission; rather, it is a suit by an employee under an employment contract for a commission paid to his employer. . . . What the plaintiff and defendant really contracted for is not the payment of a commission but a division of the fruits of their joint efforts which come to them from the owner in the shape of a commission.” Id., 812-13. Likewise, in the case at bar the plaintiff’s suit does not depend upon the listing agreement. This is not an action for a commission, but rather a suit to enforce the cobrokerage agreement by which the plaintiff and the defendant agreed to divide the fruits of their joint efforts.

In William Pitt, Inc. v. Taylor, 186 Conn. 82, 438 A.2d 1206 (1982), the Supreme Court found error in the trial court’s application of the requirements of § 20-325a to a sales contract. The trial court had held that the statute’s requirements pertained not only to the listing contract, but also to the sales contract, and that the plaintiffs could not recover a commission without producing a dated contract of sale signed by the defendants. In reversing, the Supreme Court observed that the listing contract was an undertaking separate and apart from the sales contract between a seller and a buyer of real property. The court held that the writing required by § 20-325a pertained only to the listing contract and not to the sales contract. William Pitt, Inc. v. Taylor, supra, 84. “Implicit in [the William Pitt] decision was a rejection of the notion that all contracts related to real estate must conform to § 20-325a.” Holmes v. Preferred Properties, Inc., supra, 812.

Finally, in Dow & Condon, Inc. v. Anderson, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 0314038 (May 5,1986), aff d on other grounds, 203 Conn. 475, 525 A.2d 935 (1987), the trial court was faced with the precise issue of whether § 20-325a applies to a cobrokerage agreement between two real estate brokers. Relying on William Pitt, Inc. v. Taylor, supra, and Holmes v. Preferred Properties, Inc., supra, the court concluded that the contract or writing required under § 20-325a applies to the agreement between the seller and the agent, and has no application to a fee-splitting agreement between the listing broker and a cobroker.

We find the narrowing of the applicability of General Statutes § 20-325a to be logical and justified, especially in light of the legislative history and the statutory language itself. Subsection (b) of the statute provides that no licensed realtor may maintain an action for a commission “unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. ... To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto ... (5) be signed by the owner . . . and by the real estate broker . . . . ” (Emphasis added.)

The contract referred to in the statute must be “from the person for whom such acts were done or services rendered.” It is not a logical interpretation to assume that this language refers to a listing broker retaining a cobroker. Statutes must be interpreted rationally. Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985); Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). The rational interpretation is that the statutory language refers to the listing broker and the seller of the property entering into a standard listing agreement. See also annot., 44 A.L.R.2d 761; 12 Am. Jur. 2d, Brokers § 176.

In light of the case law on General Statutes § 20-325a and the language of the statute itself, we conclude that the trial court correctly held that an agreement between brokers is not subject to the requirements of the statute.

IT

The defendants’ second claim is that the court erred in concluding that the sale of this commercial property to Burndy was not a “new deal,” and that therefore the obligation of the defendants under the cobrokerage agreement continued until the date of the closing.

“Our review of the trial court’s factual findings is limited solely to a determination of whether they are clearly erroneous. Practice Book § 4061 (formerly § 3060D); Fortier v. Laviero, 10 Conn. App. 181, 183, 522 A.2d 313 (1987) . . . (Citation omitted.) Rocklen, Inc. v. Radulesco, 10 Conn. App. 271, 276, 522 A.2d 846 (1987). The trial court found that the cobrokerage agreement was not terminated “by the forfeiture of the $5000 deposit [or] by the defendant’s letter of March 31, 1983.” The court relied upon the following facts in coming to its conclusion. The plaintiff and Mahler met, after the March 31 letter, and had a discussion that suggested the agreement was still in effect. Further, after Burndy initially stated that it would not purchase the property, Camarota asked for a right of first refusal on the property. When another prospective purchaser appeared, Mahler contacted Camarota to allow him to exercise his right of first refusal. He did exercise that right, and the sale was consummated.

Moreover, although the defendant attempts to distinguish between Berco and Burndy, the cobrokerage agreement makes it evident that the sale could be made to either entity. We conclude that there was sufficient evidence upon which the court could have found the agreement to be in effect at the time of the sale of the property.

As we have found that there was a valid cobrokerage agreement between the plaintiff and the defendants, and that it was not necessary for that agreement to comply with General Statutes § 20-325a, we conclude that the court did not abuse its discretion in rendering judgment for the plaintiff.

There is no error.

In this opinion the other judges concurred.

       As’used in this opinion, the word defendants refers to the Mahlers.

       The «¡brokerage agreement provided for payment to the plaintiff of 45 percent of the commission received, upon the sale of the property “to Berco Manufacturing and/or Burndy Corporation . . . .”

       Several comments were made during hearings and debate to the effect that the statute was enacted specifically to protect the unsophisticated home buyer. See, e.g., comments of Mr, David Kotkin, attorney for the Connecticut Association of Real Estate Boards that “the bill itself is really oriented to the single family house owner who might be confused by the listing of property . . . .” Conn. Joint Standing Committee Hearings, Insurance and Real Estate, Pt. 1, 1971 Sess., p. 230.

       The defendants refer us to the 1984 and 1985 amendments to General Statutes § 20-325a. The amendments changed the language of subsection (b) (5) from “be signed by the parties” to “be signed by the owner or an agent authorized to act on behalf of the owner only . . . and by the real estate broker or his authorized agent.” The defendants assert that we must consider the statute as it was written before the amendments, as the acts took place before the amendments were made to the statute, and all amendments are to be applied only prospectively. See Nagle v. Wood, 178 Conn. 180, 187-88, 423 A.2d 875 (1979).
      An amendment which in effect only clarifies a prior statute, however, must be accepted as the legislative meaning of the original act. Shelton v. Commissioner, 193 Conn. 506, 514, 479 A.2d 208 (1984); State v. McKenna, 11 Conn. App. 122, 131, 525 A.2d 1374 (1987). In the present case, the legislative history makes it evident that the amendments were only clarifications of the original statutory intent and therefore should be considered as though part of the original act. See comments of Rep. Morag Vance, 28 H.R. Proc., Pt. 10,1985 Sess., pp. 3695-96, that this is “the real estate listing agreement [statute]. We’re trying to get the language clean and green for a change,” and “this is only a non-substantive, technical change to clean up the language [of the bill].” See also comments of Mr. Henry Maguire, Vice President of .the Connecticut Association of Realtors, Conn. Joint Standing Committee Hearings, Insurance and Real Estate, Pt. 1,1985 Sess., pp. 70-71; to the effect that these amendments are a “technical clarification of-the little problems we’ve run into in the interpretatiori”of the statute. We therefore consider the statute in its amended form.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Executive Square Limited Partnership v. Board of Tax Review of the Town of Wethersfield
    (4920)
    Hull, Spallone and Bieluch, Js.
    Argued March 12
    decision released July 21, 1987

      John F. Harvey, Jr., with whom, on the brief, was Michael Barry, for the appellant (plaintiff).

      M. Jane Christemen, with whom, on the brief, was Robert B. Sweig, for the appellee (defendant).
   Bieluch, J.

The plaintiff appeals from the judgment of the trial court denying the plaintiff relief on appeal from the Wethersfield board of tax review (board). The plaintiff sought a reduction of the assessment for tax purposes of certain improved real estate. See General Statutes § 12-118. The plaintiff claims error in the trial court’s finding that the plaintiff failed to establish that the assessment of its land was not the true and actual value of the property. It also claims that the court erred in not following the mandate of General Statutes § 12-63b in its determination of fair market value for rental housing. We find no error.

The trial court made detailed findings of facts from which the following is a brief summary. The plaintiff owns a 240 unit apartment building situated on 8.55 acres of land and located at 100 Executive Square, Wethersfield. The land is located in a planned development—elderly housing zone. By the special permit of the town zoning commission and by covenants and restrictions running with the land in favor of the town, which are recorded on the land records as a condition of that permit, the use of the land is restricted as follows: “the land and any buildings or other structures located thereon shall be designed, used, occupied and maintained as housing for elderly and handicapped persons, as such terms are from time to time defined by Connecticut and United States government programs for the assistance, sponsorship and provision of such housing upon the land.” The building was constructed by the plaintiff in 1982 and 1983 and financed by a $12,838,000 construction loan from the Connecticut housing finance authority (CHFA). Pursuant to a regulatory agreement with CHFA, the plaintiff agreed that it would limit admission to the project to those persons and families whose incomes do not exceed the limits prescribed from time to time by CHFA, that it would limit itself to a 6 percent return on its initial equity, and that it would not, without prior approval of the CHFA, transfer any part of the project. Although financing was provided by CHFA, a rental subsidy is paid for all tenants by the United States department of housing and urban development under the terms of Section 8 of the Housing Act of 1937, as amended. See 42 U.S.C. § 14371

On October 1, 1984, the town assessor valued the property using the following methods of appraisal: (1) replacement cost less depreciation, plus the market value of the land, adjusted for the town’s base valuation year, October 1, 1978; and (2) the capitalization of net income based on market rent for similar property, also as of the base year. See General Statutes § 12-63b (a). Under the cost method he calculated the fair market value of the property to be $9,992,952. Under the income approach, he found the fair market value of the property to be $9,900,000. With minor adjustments to these valuations, he applied the uniform rate of 70 percent to arrive at a total assessment of $6,801,500. See General Statutes § 12-62a (b).

The plaintiff thereafter appealed to the Wethersfield board of tax review. After the board made no change in the assessment, the plaintiff then appealed pursuant to General Statutes § 12-118 to the Superior Court, claiming that the assessment of the property determined by the assessor was not the uniform percentage of its true and actual value on October 1, 1984, the assessment date, but was grossly excessive, disproportionate and unlawful. The plaintiff later amended its appeal to seek a reduction of the identical assessment for October 1,1985. The trial court concluded that the plaintiff failed to sustain its burden of proof and found the issues for the defendant. The plaintiff then took this appeal.

The plaintiffs first claim is that the trial court failed to apply the proper standard of review for an appeal from a board of tax review. See General Statutes § 12-118. Specifically, the plaintiff claims that it was error for the trial court to conclude that taxable property must be substantially overvalued, as opposed to mere overvaluation, before a taxpayer is entitled to judicial relief.

On appeal from a decision of a board of tax review, “[t]he court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable . . . . ” General Statutes § 12-118. “Only when the court finds that the action of the board will result in the payment of an unjust and, therefore, illegal tax, can the court proceed to exercise its broad discretionary power to grant such relief as is appropriate.” Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979). In accordance with such review, the law contemplates that a wide discretion is to be accorded to assessors. An assessor’s valuation should control for taxation purposes unless it is discriminatory or unreasonable. See Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 633 n.8, 438 A.2d 782 (1981); Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 86, 291 A.2d 715 (1971).

“In the appeal to the court, the ultimate question is the ascertainment of the true and actual value of the plaintiff’s property. Dickau v. Glastonbury, 156 Conn. 437, 441, 444, 242 A.2d 777 [1968]; Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673, 154 A.2d 608 [1959]. If the court finds that the property has been in fact overvalued, it has the power to, and should, correct the valuation. Connecticut Savings Bank v. New Haven, [131 Conn. 575, 584-86, 41 A.2d 765 (1945)].” Hutensky v. Avon, 163 Conn. 433, 436-37, 311 A.2d 92 (1972). “Mere overvaluation is enough to justify redress under § 12-118.” Hutensky v. Avon, supra, 436.

Our review of the trial court’s memorandum of decision reveals no indication that the trial court used an improper standard of review. The trial court found a variance of 4.8 percent, or $473,000, between the plaintiff’s valuation and that of the town assessor. It is clear, however, that the trial court did not find the plaintiff’s appraisal credible. Faced with conflicting testimony, the court expressed its belief that the plaintiff’s valuation was based upon an approximation of economic rental value that was too low, and a capitalization rate that was too high.

The plaintiff seizes upon the court’s statement that “the appraisal process is at best one of approximation and judgment . . . [and] it is at least questionable whether a 4.8 percent variance between the assessor’s valuation and an appropriate valuation posited on open market considerations is so substantial as to warrant judicial intervention.” The plaintiff characterizes this statement as suggesting the use of an unspecified variance percentage threshold to determine whether an assessor’s overvaluation is substantial enough to warrant judicial relief. The court’s statement was a comment on the appraisal process generally. It did not, as the plaintiff claims, indicate a finding that the plaintiff’s property was in fact overvalued 4.8 percent, but, rather, that such overvaluation, if proven, was insufficient to warrant judicial interference.

The court held that the plaintiff failed to meet its burden that the assessor’s valuation was not the true and actual value of the property. Our review of the record indicates that the town assessor’s valuation conformed to the requirements of General Statutes § 12-63b. The trial court’s finding that the assessor’s valuation represented the present true and actual value of the property was supported by the evidence before it and was not erroneous.

The plaintiff’s second claim is that the court erred by not following the mandate of General Statutes § 12-63b in its determination of fair market value for rental housing. General Statutes § 12-63b (a) provides for the following three methods of appraisal to be considered when determining the present true and actual value of real property for tax assessment in the absence of comparable sales: “(1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property.” Subsection (b) of that section further provides that “[f]or purposes of subdivision (3) of subsection (a) of this section .... [i]n determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.” General Statutes § 12-63b (b).

The plaintiff alleges that the federal reimbursement subsidies toward the tenants’ rent payments received by it are “not true rental income and, therefore, the total amounts received are not an accurate indicator of what [is] being paid on the open market for comparable [apartments].” The plaintiff contends that the federal subsidies are an “undue stimulus,” thereby inflating the aggregate rents above that which could be obtained in a competitive and open market.

The trial court found that the unique circumstances surrounding the plaintiffs property, namely, its restrictions, financing and federal subsidy led it to the conclusion that there is no market that would compare with the housing afforded by the plaintiffs apartments other than Section 8 housing: “According to the evidence, Section 8 housing has its own market and therefore the rental established for the subject property was market rent.” The plaintiffs claim that the court failed to apply the provisions of General Statutes § 12-63b is without merit.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 12-118 provides in relevant part: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court.”

       General Statutes § 12-118 provides in further relevant part: “If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court.”

       “[General Statutes] Sec. 12-63b. valuation op rental income real property, (a) The assessor or board of assessors in any town, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income, exclusive of such property used solely for residential purposes, containing not more than six dwelling units and in which the owner resides, and with respect to which property there is insufficient data in such town based on current bona fide sales of comparable property which may be considered in determining such value, shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property. The provisions of this section shall not be applicable with respect to any housing assisted by the federal or state government except any such housing for which the federal assistance directly related to rent for each unit in such housing is no less than the difference between the fair market rent for each such unit in the applicable area and the amount of rent payable by the tenant in each such unit, as determined under the federal program providing for such assistance.
      “(b) For purposes of subdivision (3) of subsection (a) of this section and, generally, in its use as a factor in any appraisal with respect to real property used primarily for the purpose of producing rental income, the term ‘market rent’ means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.”


author: Per Curiam.

text:
    In re Thomas L.

    (5541)
    Borden, Daly and Bieluch, Js.
    Argued June 9
    decision released July 21, 1987

      Daniel V. Presnick, for the appellants (respondents).

      Jane S. Scholl, assistant attorney general, with whom were Mary-Ann Mulholland, assistant attorney gen-

      eral, and, on the brief, Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

      Robert J. Sokolowski, for the minor child.

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

   Per Curiam.

In this juvenile matter, the department of children and youth services (DCYS) filed a petition to terminate the parental rights of the respondents, whose son, then nine years old, had been placed in its custody since he was two years old. The child has not resided with the respondents, his biological parents, since he was two weeks old, but has been with his foster parents since eight months of age. From the granting of the petition, the respondents have appealed.

This petition to terminate parental rights was preceded by a long history of litigation. The last disposition prior to the filing of the present petition was a denial of both an earlier petition by DCYS to terminate parental rights and a petition by the natural parents to revoke the order committing him to the commissioner of DCYS. The respondents appealed from that denial but were denied relief. See In re Thomas L., 4 Conn. App. 56, 492 A.2d 229 (1985).

The present petition to terminate parental rights was commenced on August 26,1985. After a hearing, the trial court concluded that there was clear and convincing evidence that there was no ongoing parent-child relationship and further that it was in the best interests of the child to terminate the respondents’ parental rights.

The respondents claim on appeal that (1) the evidence presented was insufficient to support the trial court’s conclusion, and (2) the trial court drew an improper adverse inference from the fact that they were under court order not to visit the child.

The respondents have failed to provide a transcript of the proceedings. We are unable to consider the respondents’ first claim on its merits because of their failure to provide us with an adequate appellate record. We do not decide issues of law in a vacuum. In order to review an insufficiency claim, we must have before us the evidence which was presented to the trier of fact. The duty to provide us with the appropriate appellate record rests on the appellant. Practice Book § 4061. The absence of such a record prevents us from reviewing the respondents’ first claim of error in this case. Taylor v. American Thread Co., 200 Conn. 108, 110, 509 A.2d 512 (1986).

The respondents’ second claim is without merit. The court properly considered the respondents’ conduct which led to the order in question, as well as the lack of effort on their part to change their behavior so that visitation could be resumed.

There is no error.


author: F.X. Hennessy, J.

text:
    State of Connecticut v. Cornelius Greene
    (4916)
    Dupont, C. J., Borden and F.X. Hennessy, Js.

      Argued May 7
    decision released July 21, 1987

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   F.X. Hennessy, J.

The defendant has appealed from the judgment of conviction of burglary in the second degree in violation of General Statutes § 53a-102, challenging: (1) the refusal of the court to grant a motion for judgment of acquittal at the close of the state’s case, at the close of all of the evidence and after the jury returned a verdict of guilty; (2) the court’s summary of the testimony of a police officer; (3) the adequacy of the court’s instructions regarding accessorial liability; and (4) that portion of the jury instruction which permitted the defendant to be convicted as an accessory although the amended information allegedly charged him only as a principal.

The jury could have found the following facts: During the early hours of the morning of October 12,1984, the home of Frank Perrelli and his wife was burglarized and a file cabinet, jewelry, a jewelry box with the bottom half missing, check boxes containing cancelled checks and personal papers were taken. Those items had been located in the Perrelli’s bedroom and thus were not, except during the burglary, accessible to the defendant, whom the Perrellis did not know and had never seen. An automobile matching the description of one seen being driven away from the Perrelli’s neighborhood shortly after the burglary was found abandoned the next morning in an area approximately seven miles from the Perrelli’s house. The automobile, stolen the day before the burglary, contained a check with the name Perrelli on it and the half of a wooden jewelry box taken from the Perrelli’s home. Approximately twenty to twenty-five feet from the automobile, there was a dumpster four and one-half to five and one-half feet high, half filled with garbage, and containing check boxes, cancelled checks and other items belonging to the Perrelli family. The dumpster was infested with hornets and yellowjackets. Two of the check boxes had the defendant’s fingerprints on them. During the presentation of the case by the state, Detective Douglas McDonald testified, in response to a question asked by the defendant on cross-examination, that one Kerry Kendall and the defendant knew one another, that they had participated in a burglary together some years before and that Kendall, whose fingerprints had also been found on one of the check boxes, had named the defendant and three others as having been involved in the burglary.

I

At the conclusion of the state’s case-in-chief, the defendant moved for a judgment of acquittal, claiming that fingerprint evidence alone is not sufficient to sustain a conviction unless the prints were found under such circumstances that they could only have been impressed at the time the crime was perpetrated. See State v. Payne, 186 Conn. 179, 182, 440 A.2d 280 (1982); State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972). The defendant argues that since the property with the defendant’s fingerprint on it belonging to the Perrellis was found in a dumpster which was miles from the scene of the burglary and located in an area easily accessible to the public, the only fact that the jury could reasonably infer was that the defendant recently had touched the property. Without further testimony placing the defendant at the place and time the crime was committed, the fingerprints alone would not, he argues, be sufficient to allow the court to correctly deny the defendant’s motion for a judgment of acquittal.

The state claims that evidence to the effect that the defendant’s fingerprints had been found on the check boxes found near a stolen car which was seen leaving the area of the crime shortly after the crime had been committed and which contained property stolen from the Perrelli home, could lead a jury reasonably to conclude that the defendant had participated in the burglary.

The two part standard for gauging the sufficiency of evidence in a criminal case is as follows: we first view all of the evidence in the light most favorable to the verdict; we then determine whether a jury could have reasonably concluded from that evidence and all the reasonable inferences which it yields that the defendant was guilty beyond a reasonable doubt. State v. Parent, 8 Conn. App. 469, 472-73, 513 A.2d 725 (1986).

The evidence in this case regarding the stolen property in the dumpster and in the car is capable of differing inferences consistent with guilt or innocence, depending upon the interpretation of the facts and inferences drawn therefrom. Evidence which yields contrary inferences does not, however, require an inference consistent with innocence. The jury can draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985).

A jury could reasonably and logically conclude that the defendant had participated in the burglary. First, the jury could infer that the car in which the goods stolen from the Perrelli home were found was the same car seen leaving the victims’ neighborhood by a police officer shortly after the burglary, and was therefore the car transporting the burglars. This car was found abandoned near the dumpster which contained the check boxes stolen from the Perrellis. The photographic and testimonial evidence demonstrated that the check box was buried beneath other personal effects of the Perrellis’ and other trash, that there was nothing of apparent value visible to attract any passerby, and that the contents of the dumpster were not readily accessible to any curious passerby due to the infestation of hornets and yellowjackets. In fact, due to the presence of the insects, the police needed the assistance of a maintenance worker wearing gloves to recover evidence from the dumpster. McDonald testified that Kendall had implicated the defendant as a participant in the burglary. McDonald also testified that both men had previously committed a burglary together. Additionally, the defendant’s fingerprints were found on the check boxes recovered from the dumpster, which raised the permissible inference that the defendant possessed the property. “ ‘[T]he circumstantial evidence of possession of recently stolen property raises a permissible inference of criminal connection with the property . . . .” State v. Liscio, 9 Conn. App. 121, 127, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1208 (1987). When all of this evidence is taken together, the jury could reasonably conclude that the defendant stole the property from the Perrelli’s house. The court, therefore, was not in error in denying the defendant’s motion for judgment of acquittal after the state had presented its case.

The argument by the defendant that this court should no longer adhere to the waiver rule need not be addressed because under the facts of this case the jury at the close of the state’s case could have concluded, on the basis of the evidence recited above, that the defendant was guilty of the crime with which he was charged.

II

The second contention by the defendant is that the court erred by summarizing the testimony of a police officer incorrectly, thereby misleading the jury. The court told the jury that the police officer testified that he was told that the defendant “took part in” the burglary. The actual testimony was that the defendant was “involved in” the burglary.

Jury instructions need “not be exhaustive, perfect or technically accurate,” as long as they are “correct in law, adapted to the issues and sufficient for the guidance of the jury.” Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953). “An error in instructions in a criminal case is reversible error when it is shown that it is reasonably possible for errors of constitutional dimension or reasonably probable for nonconstitutional errors that the jury were misled.” State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982).

The jury charge also contained the following statement by the court: “[I]f either my remarks or the lawyers’ remarks differ from anything that you’ll recall then by all means follow your own recollection of just what the evidence was . . . .”

The cautionary language set forth in the jury instruction coupled with the closeness of meaning between the phrase “took part in” and the word “involved,” meaning “to draw in as a participant”; Webster, Third New International Dictionary; convinces us that the instruction as given, and not objected to, did not mislead the jury.

Ill

The defendant next claims that the court’s instruction on accessory liability did not adequately inform the jury of the requisite intent necessary to establish the defendant’s guilt as an accessory. The claim is that the defendant must have had the intent to commit a burglary and that he intentionally aided in the commission of the burglary. It is the contention of the defendant that the court’s instruction to the jury failed to guide the jury properly regarding the nature of and the interplay between the two intents necessary to convict.

The accessory statute, General Statutes § 53a-8, sets forth the element of intent as a twofold requirement: that an accessory have the intent to aid the principal; and that in so aiding he intended to commit the offense with which he is charged. State v. Haddad, 189 Conn. 383, 399, 456 A.2d 316 (1983). “The defendant took no exception to this portion of the charge at trial. Ordinarily such a failure would render the claim unreviewable on appeal. Practice Book § [852]. However, because the failure adequately to instruct the jury on each essential element of the crime charged, including intent, might result in a due process violation implicating the fairness of this trial, we will consider this issue. . . . The extent of our review of a constitutional issue raised for the first time on appeal is limited. We must determine whether, ‘considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.’ ” (Citations omitted.) State v. Sinclair, 197 Conn. 574, 580-81, 500 A.2d 539 (1985).

Jury instructions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present. State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984). If these goals are reached, the instruction will be deemed constitutionally adequate.

The court read the wording of General Statutes § 53a-8, the accessory statute for acts of another, to the jury including the requirement that the defendant act with the “mental state required for commission of an offense” and the wording “intentionally aids another person.” The court further included in its instruction to the jury the following: “A person acts intentionally, with respect to a result or to conduct described by a statute defining an offense, when his conscious objective is to cause such a result or to engage in such conduct. You cannot presume intent but you can infer it from the acts that were committed.”

It is clear that the jury was told that the defendant had to intend to aid another in the commission of the crime. The jury was also told what “intent” is when the court gave the general charge on intent. Additionally, none of the descriptive words in § 53a-8 is so complex or rooted in legal meaning as to render the average juror incapable of understanding its meaning. The court’s reading of the statute sufficed to make it clear that, prior to finding the defendant guilty, the jury was obligated to find that he intended to aid or abet another in committing the crime charged. State v. Giannotti, 7 Conn. App. 701, 706, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986).

There was no error in the court’s instruction to the jury on accessory liability.

IV

The defendant further argues that the court was in error when it instructed the jury to consider accessory liability when the defendant was charged as a principal. The defendant claims that whether he was a principal or an accessory are two mutually exclusive theories of liability.

The wording of the jury instruction, “[i]t is not necessary that the state prove that this particular defendant acted alone or that he actively took part in the burglary . . . ” is claimed by the defendant to have misled the jury so that the jury could have found that the defendant did not take part in the burglary and at the same time was guilty of the burglary.

There is no such crime as being an accessory. The accessory statute merely provides an alternate means by which a substantive crime may be committed. State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985). Although the information included only the language of General Statutes § 53a-102, the defendant cannot be heard to complain that the jury was instructed on both principal liability and accessory liability under General Statutes § 53a-8. State v. Edwards, 201 Conn. 125, 131, 513 A.2d 669 (1986). The law in this state clearly holds that the fact that the defendant was not formally charged as an accessory does not preclude his being so convicted. State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986); State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981).

The wording of the jury instruction is not to be read out of context or in a vacuum. The court obviously did not instruct the jury to find the defendant guilty of burglary in the second degree even though they found that the state did not prove that he took part in the burglary. It is clear that the court was referring to that portion of General Statutes § 53a-8 which was read to the jury, which allows a person who intentionally aids another to engage in conduct which constitutes an offense to be prosecuted and punished as if he were the principal offender.

There is no error.

In this opinion the other judges concurred.

       A further ground of appeal by the defendant concerning the court’s denial of the defendant’s request to call certain witnesses was abandoned at oral argument.

       The waiver rule provides: “When a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without foregoing the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto.” State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).