author: Daly, J.

text:
    State of Connecticut v. Timothy Barton
    (7869)
    (7870)
    Spallone, Daly and Norcott, Js.
    Argued January 4
    decision released June 19, 1990

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, John Dropick, assistant state’s attorney, and MichaelE. O’Hare, special attorney, for the appellant (state).

      Walter H. Scanlon, for the appellee (defendant).
   Daly, J.

The defendant was charged in a substituted information with possession of over one kilogram of marihuana with intent to sell in violation of General Statutes § 21a-278 (b) and possession of four ounces or more of marihuana in violation of General Statutes § 21a-279 (b). The defendant filed a motion to suppress the marihuana that was seized from the first floor apartment of 232 Perch Rock Trail, Winsted. He claimed that the affidavit in support of the application for the search warrant did not establish probable cause to believe that marihuana, in fact, was within these premises. The trial court, Moraghan, J., granted the motion to suppress, and denied the state’s motion to reargue the motion to suppress and motion for articulation. The charges were then dismissed with prejudice. With the permission of the trial court, the state appealed from the judgment of dismissal.

The state challenges (1) the trial court’s conclusion that the warrant affidavit failed to establish probable cause, and (2) the court’s failure to apply the good faith exception to the exclusionary rule to the evidence seized from the apartment at issue. We affirm the judgment of the trial court.

The relevant facts are as follows. On August 7,1988, the Winsted police department obtained a search and seizure warrant authorizing them to search the premises described as the first floor apartment at 232 Perch Rock Trail, Winsted, and the person of the defendant. The police executed the warrant later that day. When they arrived at the premises, the defendant was not at the apartment, but they were able to obtain a key from the owner who lived on the second floor. Upon entry, they found fifty-two pounds of marihuana in a bedroom. It was wrapped in small clear plastic bags and kept in large garbage bags. The defendant returned to the apartment shortly after midnight and the police apprehended him.

The defendant filed a motion to suppress the material seized pursuant to the search warrant, claiming that the search and seizure violated his rights under article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution. The trial court granted the motion to suppress finding (1) that the affidavit in support of the search warrant did not adequately set forth the unnamed informant’s basis of knowledge and, as a result, the warrant lacked probable cause, and (2) that the state failed to establish an adequate record for upholding the search under the good faith exception to the exclusionary rule of the fourth amendment.

I

On appeal, the state first challenges the trial court’s finding that the affidavit lacked probable cause. Specifically, the state argues that the court should not have concluded that the affidavit failed to state adequately the informant’s basis of knowledge in that (1) the informant provided detailed information that permitted an inference that the information he described was obtained by personal observation, (2) the informant provided information in close proximity to the alleged criminal activities, and (3), because this is arguably a close case, great deference should be given to the issuing magistrate’s determination that probable cause existed on the face of the warrant. We do not agree.

As noted by the trial court, this affidavit consisted of five paragraphs, four of which had minimal significance. The first two paragraphs addressed the experience and training of the affiants, the fourth paragraph indicated who owned the property that was the subject of the search and described that property, and the fifth was a conclusionary paragraph. Thus, as the trial court properly found, the only basis upon which probable cause could have been established is paragraph three. That paragraph states: “That the affiants state on Sunday, August 7, 1988 Sgt. Gerald O. Peters received information from a confidential informant at police headquarters pertaining to Tim Barton who resides at 232 Perch Rock Trail, Winsted, Connecticut, first floor that Barton has in his apartment a large quantity of marijuana in plastic garbage bags, which are kept in a closet. That the informant also provided Sergeant Peters of [sic] a sample of the marijuana that is in the bags. A field test of the marijuana substance that was provided to Sgt. Peters was field tested and the test results was [sic] positive for cannibas substance. The informant further stated that Tim Barton operates a Texas registered vehicle and after being away for approximately one week Barton returned home on Saturday, August 6, 1988 and unloaded several large plastic bags in the evening hours. The informant further stated that shortly after that four to five people arrived at the Barton apartment and stayed a short while and then left with plastic garbage bags.”

“The fourth amendment to the United States constitution provides that ‘no warrants shall issue, but upon probable cause, supported by oath or affirmation.’ See also Conn. Const., art. I, § 7 (‘no warrant to search any place, or to seize any person or things, shall issue without . . . probable cause supported by oath or affirmation’).” State v. DeChamplain, 179 Conn. 522, 526, 427 A.2d 1338 (1980).

“In reviewing an affidavit for a search and seizure warrant we must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of a warrant. . . . The judge is entitled to rely on his own common sense and the dictates of common experience, although the standard for determining probable cause is an objective one. . . . Purely conclusory affidavits by the affiant or informant that he or she believes that probable cause exists, however, cannot be relied upon; the underlying circumstances upon which that belief is based must be detailed in the affidavit. . . . The issuing judge must not merely serve as a rubber stamp for the police.” (Citations omitted.) Id., 527-28.

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Emphasis in original.) State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987). “In considering the sufficiency of the affidavit, we confine ourselves ‘to the facts which appear on the face of the affidavit or which properly may be inferred therefrom.’ ” State v. DeChamplain, supra, 531.

In State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), our Supreme Court determined that article first, § 7, of the state constitution affords more substantive protections against unreasonable searches and seizures than the fourth amendment to the federal constitution. In that case, the court reviewed the magistrate’s finding of probable cause under the two pronged Aguilar-Spinelli test. The same test has been applied to judicial review of search warrants. See State v. Morrill, supra, 565.

“The Aguilar-Spinelli test . . . consists of two prongs: ‘ “ ‘The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” ’ ” Id., 566; see also State v. Ruscoe, 212 Conn. 223, 228-29, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

“The first prong of the test, often referred to as the ‘basis of knowledge’ prong, examines the information provided by the informant to determine if it ‘relate[s] sufficient facts from which a judge reasonably could conclude that the [informant] based [his] allegations of criminal activity on sufficient underlying circumstances.’ ” State v. Morrill, supra. On the basis of our examination of the affidavit, we agree with the trial court that the “basis of knowledge” requirement was not satisfied.

In State v. DeChamplain, supra, 532, our Supreme Court upheld the trial court’s decision to suppress marihuana seized from the defendant’s apartment on the basis that the warrant failed to set forth sufficient underlying circumstances to support the conclusion that there was probable cause to believe that marihuana was located in the apartment in question. Similarly, we hold that the affidavit in the present case failed to set forth the informant’s basis of knowledge that marihuana was located in the defendant’s apartment, particularly at the time the warrant was executed.

The affidavit contained no statement to the effect that the informant was ever in the defendant’s apartxnent. See id. Nor did it set forth facts observed or perceived by the informant from which the presence of marihuana in the defendant’s apartment reasonably could have been inferred. Id.

One isolated incident in which the informant stated that he observed the defendant remove plastic garbage bags from a car with Texas registration and carry them inside a building where his apartment was located, followed by the informant’s observation that several people subsequently entered the building and left with plastic garbage bags, in and of itself, suggests no criminal activity. See id., 533. Regardless of how close in time this incident occurred, it is insignificant because it describes an innocuous event. Cf. United States v. Martinez-Torres, 556 F. Supp. 1236, 1248 (S.D.N.Y. 1982) aff’d sub nom. United States v. Calvente, 722 F.2d 1019 (2d Cir. 1983).

The fact that the affidavit stated that the informant provided the affiants with a sample of marihuana that was allegedly obtained at some unstated time from plastic garbage bags that were allegedly kept in a closet at the defendant’s apartment does not constitute a sufficient underlying basis to conclude that the marihuana was purchased at the defendant’s apartment. The affidavit contained no statement by the informant as to where this marihuana was purchased. Cf. State v. Brown, 14 Conn. App. 605, 611, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988). Nor did the affidavit set forth any underlying circumstances to suggest that the informant had personal experience buying marihuana from the defendant at his apartment; cf. id., 616; or that the defendant had been actively involved in the sale of marihuana and that the informant had observed the defendant constantly in possession of marihuana at the apartment. Cf. State v. Garcia, 7 Conn. App. 354, 359, 508 A.2d 824 (1986). Further, the informant gave no accurate description of the defendant’s apartment; cf. State v. Morrill, supra, 566-67; he merely alleged that the defendant had marihuana in a closet in the apartment.

“We recognize that ‘in judging probable cause issuing magistrates are not to be confined . . . by restrictions on the use of their common sense, and that their determination of probable cause should be paid great deference by reviewing courts.’ Spinelli v. United States, [393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)]. Nonetheless, the distinction between probable cause and mere conjecture still exists. ‘[T]he grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests.’ (Emphasis added.) Torres v. Puerto Rico, 442 U.S. 465, 471, 99 S. Ct. 2425, 61 L. Ed. 2d 1 (1979).” State v. DeChamplain, supra, 533.

The affidavit at issue relied solely on the informant’s tip. There was no independent police corroboration. Therefore, we must strictly apply the Aguilar-Spinelli test that requires that in order for the warrant to meet the probable cause requirement, both prongs of the test must be met. Cf. State v. Delmonaco, 194 Conn. 331, 340-41, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). In view of our holding that the first prong of Aguilar-Spinelli has not been met, we need not proceed further in determining whether the second prong or the “veracity prong” was satisfied. Because the affidavit did not adequately set forth the informant’s basis of knowledge, the warrant must fail.

II

The state next argues that even if this warrant lacked probable cause under the Aguilar-Spinelli test, the police relied upon it in good faith and, therefore, the evidence should have been admitted under the good faith exception to the exclusionary rule. We disagree.

The question of whether, under article first, § 7, of the Connecticut constitution, there is a good faith exception to the exclusionary rule has not yet been resolved by our Supreme Court. Nevertheless, this court has recognized a good faith exception. See State v. Marsala, 19 Conn. App. 478, 563 A.2d 730, cert. granted, 213 Conn. 805, 567 A.2d 836 (1989); State v. Morrissey, 18 Conn. App. 658, 664, 560 A.2d 471, cert. granted, 212 Conn. 821, 565 A.2d 541 (1989); State v. Marsala, 15 Conn. App. 519, 526, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988); State v. Brown, supra.

Because the Supreme Court has yet to resolve the question, “the only analysis that we have available to us is the federal analysis, which this court employed in State v. Brown, supra.” State v. Johnson, 21 Conn. App. 40, 51 n.11, 571 A.2d 134 (1990). Applying Brown and its progeny, we conclude that the good faith exception would not apply to the present case.

The federal rule is that the good faith exception does not apply “ ‘(1) where the issuing magistrate was misled within the standards of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (2) where the magistrate wholly abandoned his judicial role, as in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), (3) where the warrant was so lacking in indicia of probable cause that the police officers could not have a reasonable belief in its validity; see Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring); and (4) where the warrant was so facially deficient in its lack of particularity, regarding the place to be searched or the things to be seized, that the executing officer could not reasonably presume it to be valid. United States v. Leon, [468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)].’ ” State v. Johnson, supra, 51-52.

On the record before us, the affidavit falls within the third class of cases; namely “whether the absence of probable cause was so apparent that the officers ‘could not have harbored an objectively reasonable belief in the existence of probable cause.’ ” State v. Marsala, supra, 19 Conn. App. 478, 481, quoting United States v. Leon, supra, 926.

The trial court determined that the state, in relying only on the face of the affidavit and not presenting further evidence, failed to meet its burden of proving that the police officers’ reliance on the warrant was objectively reasonable. On appeal, the appropriate standard of reviewing a trial court’s determination of whether the good faith exception applies in a given case is “ ‘subject to de novo review as a mixed question of fact and law. . . . [T]he issue of the objective reasonableness of the executing officers’ reliance on a search warrant, even if the affidavit supporting the warrant was insufficient to establish probable cause, is a question of law reviewable de novo by the court. The underlying facts upon which that determination is based are, however, binding on appeal unless clearly erroneous.” State v. Marsala, supra, 19 Conn. App. 478, 480-81.

The standard of measuring an officer’s behavior is reasonableness. See id. The issue of reasonableness must be determined without regard to the fact that a magistrate approved the warrant application. Id., 482.

In the present case, our examination of the affidavit reveals that the trial court did not err in concluding that this warrant lacked probable cause to search the premises. We conclude that the affidavit is a “bare bones” document so devoid of facts that reliance on it by a well trained police officer must be deemed unreasonable. See State v. Johnson, supra; cf. State v. Marsala, 19 Conn. App. 478, 483.

The appeal is dismissed in the first case; the judgment is affirmed in the second case.

In this opinion the other judges concurred.

       This opinion will discuss only Appellate Court Docket No. 7870. In this case, the defendant was charged as indicated in the text as a result of the evidence seized from his apartment. The state was also given permission to appeal the dismissal with prejudice of identical charges of possession of over one kilogram of marihuana with intent to sell and possession of four ounces or more of marihuana that were the subject of Docket No. 7869. These charges were filed as a result of seizure of marihuana from a search of a car in which the defendant had arrived at the time of his arrest. The defendant filed a motion to suppress the material of that search and a joint hearing was held in which neither side presented witnesses. The trial court granted the defendant’s two motions to suppress but gave the state permission to appeal from both motions. The state’s motion to consolidate these two appeals was granted. The state, however, has briefed only the issue of the validity of the search warrant as it pertains to the seizure of items from the defendant’s apartment. Because the state has failed to brief any issues pertaining to Docket No. 7869, the state’s appeal as to that docket number is deemed abandoned and we, therefore, dismiss it. See Alderman v. RPM of New Haven, Inc., 20 Conn. App. 566, 569 n.1, 568 A.2d 1068 (1990). Thus, this opinion will refer only to Docket No. 7870.

       The police also subsequently searched the car in which the defendant had arrived. This search was the subject of Docket No. 7869 and any issues relating to the validity of that search were abandoned by the state on appeal. See footnote 1, supra.

       Paragraphs one, two, four and five of the search warrant affidavit state: “1. That the affiant Officer Gerald J. Peters is a regular member of the Winsted Police Department and has been for the past (18) years. In 1977 Officer Peters was assigned to the Regional Crime Squad under the supervision of Sergeant Joseph Mancini of the Waterbury Police Department. In that capacity Officer Peters worked in an undercover capacity and was responsible during that period for numerous narcotics violations which led to numerous arrest and convictions. On November 10,1980 Officer Peters was assigned to the Statewide Narcotics Force-Central Division-as an under cover agent. From this period of time Officer Peters has been involved in numerous investigations involving illicit narcotics which have led to arrest. Between both assignments Officer Peters spent a total of (22) months in the field of illicit narcotic investigations in an under cover capacity, and since then has made numerous arrests for narcotics violations.
      “2. That the affiant Officer William Mathiasen is a regular member of the Winsted Police department and has been for the past 9 years. Officer Mathiason in the past 9 years has been involved in numerous illegal drug investigations, which have led to arrest and convictions. Officer Mathiasen also received training at the Connecticut Municipal Police Academy in Meriden, Connecticut on illegal narcotics.
      “4. That this affiant states that an investigation of 282 Perch Rock Trail reveals that the property is owned by Mr. and Mrs. Andrew Benjamin and that they reside on the second floor the home is green in color with wood siding and has a light colored roof with entrances to the Barton apartment front, rear, and side.
      “5. That based on the experience and training of the affiant the affiant believes that large quantities of illegal narcotics (marijuana) are located within the premises of the Tim Barton apartment first floor 232 Perch Rock Trail, Winsted, Connecticut. That based on the above information the affiant respectfully request the issuance of a search warrant for the Tim Barton apartment 232 Perch Rock Trail, Winsted, Connecticut, first floor.”

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

       We note that our Supreme Court has certified the issue of whether this state recognizes the good faith exception to the exclusionary rale in the following cases: State v. Morrissey, 18 Conn. App. 658, 560 A.2d 471, cert. granted, 212 Conn. 821, 565 A.2d 541 (1989) (“Did the Appellate Court err in remanding this case for a factual determination concerning the reasonableness of the police officer’s search in reliance upon its decision in State v. Brown, 14 Conn. App. 605, holding that there is a good faith exception to the exclusionary rule under article first, § 7, of the Connecticut constitution?”); State v. Marsala, 19 Conn. App. 478, 563 A.2d 730, cert. granted, 213 Conn. 805, 567 A.2d 836 (1989) (“Does a good faith exception to the exclusionary rule exist under Connecticut law . . . ?”); see State v. Johnson, 21 Conn. App. 40, 571 A.2d 134 (1990).

       Specifically, the trial court stated in its memorandum of decision, “The State, for reasons known only to itself, neither argued for nor presented the requisite evidentiary hearing addressing the factual and legal issues which must be decided on an ad hoc basis if we are to comport with [State v. Brown, 14 Conn. App. 605, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988)]. That failure is fatal to its attempt to invoke the saving graces of the good faith exception.”


source: Caselaw Access Project

author: O’Connell, J. Lavery, J.,

license: Public Domain

text:
    State of Connecticut v. Orlando Figueroa
    (8124)
    Düpont, C. J., Borden, Spallone, Daly, O’Connell, Norcott, Foti and Lavery, Js.
    Argued February 14
    decision released May 4, 1990

      Ronald T. Murphy, for the appellant (named defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom were JohnM. Massemeno, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, for the appellee (state).

      Ralph G. Elliot, for the appellees (The Hartford Courant et al.).
   O’Connell, J.

The defendant appeals from the trial court’s order to unseal a police report. The matter came to this court in the following context.

On April 4, 1989, the defendant was arrested and charged with the murder of a thirteen year old male. The next day, he was arraigned in Part B of the Superior Court. The court, Kocay, J., relying on a three page police report, found probable cause for his arrest and transferred the case to Part A of the Superior Court. Practice Book § 650; see Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). At the conclusion of the arraignment, the court ordered that the police report be sealed and kept in the state’s attorney’s office rather than in the clerk’s file.

On April 12,1989, The Hartford Courant and Lynn Tuohy, an employee thereof, moved to intervene and to vacate the sealing order. On the same date, the state moved to extend the sealing of the report for an additional two weeks. The court, Norko, J., ordered the report taken from the state’s attorney’s office and placed in the clerk’s file. Then, after hearing arguments and receiving briefs, it granted the motion to intervene and vacated the sealing order. The court stayed its order unsealing the report, however, pending this appeal.

The state appealed from the allowance of intervention and the unsealing order, but withdrew its appeal, however, under the impression that the appeal suffered from certain procedural defects. The defendant appealed only from the unsealing order, and that is all that is before this court at this time. Before we can reach the merits of this question though, we must first determine whether the defendant may appeal to this court at this stage of the proceedings.

There is no constitutional or common law right to appeal. Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). The right of appeal is purely statutory; State v. Audet, 170 Conn. 337, 341, 365 A.2d 1082 (1976); and appellate tribunals may hear only those appeals over which they have been granted jurisdiction by statute. The principal statutory prerequisite to invoking our jurisdiction is that the ruling from which an appeal is sought must constitute a “final judgment.” See General Statutes §§ 51-197a and 52-263. In a criminal case, the imposition of sentence constitutes the appealable final judgment. State v. Seravalli, 189 Conn. 201, 205, 455 A.2d 852, cert. denied, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983). We cannot hear appeals from preliminary rulings of the trial court, except in the case of several narrowly defined situations, none of which exists here. Piecemeal appeals, particularly in criminal proceedings, are not only outside our jurisdiction, but also contravene the long-standing case law of this state and the United States. See DiBella v. United States, 369 U.S. 121, 126, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962); State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938).

Our courts have not been inclined to extend the privilege of an interlocutory appeal in criminal cases because the delays and disruptions attendant on such appeals are contrary to the effective and fair administration of the criminal law. State v. Curcio, 191 Conn. 27, 30-31, 63 A.2d 566 (1983). “The overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusations should be removed as speedily as circumstances permit.” State v. Parker, 194 Conn. 650, 656, 485 A.2d 139 (1984). Consequently, it has been held that the court does not have jurisdiction to hear appeals from certain rulings because they are not final judgments. Among these exceptions are the transfer of a case from the juvenile to the regular criminal docket; In re Juvenile Appeal (85-AB), 195 Conn. 303, 312, 488 A.2d 778 (1985); denial of an application for youthful offender status; State v. Longo, 192 Conn. 85, 90-91, 469 A.2d 1220 (1984); denial of an application for accelerated rehabilitation; State v. Spendolini, 189 Conn. 92, 97, 454 A.2d 720 (1983); denial of a motion to disqualify an attorney; Burger & Burger, Inc. v. Murren, 202 Conn. 660, 669-70, 522 A.2d 812 (1987); and the entry of a nolle prosequi, or denial of a speedy trial claim. State v. Lloyd, 185 Conn. 199, 207, 440 A.2d 867 (1981).

Interlocutory rulings of a trial court may be treated as final judgments for purposes of appeal “in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 31. The defendant argues that he has satisfied both prongs of this test. We disagree.

Where “the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the ‘separate and distinct proceeding’ requirement of the first prong of Curdo.” State v. Parker, supra, 653. To qualify under Curdo, “[i]t must appear that the interlocutory ruling will not impact directly on any aspect of the prosecution.” Id. We are not persuaded that the trial court’s ruling to unseal this police report can be construed as a separate and distinct proceeding because it was part and parcel of the defendant’s prosecution for murder. We decline to hold as a matter of law that a proceeding involving a police report, which was sufficient for the arraigning court to hold the defendant for trial, would not have any impact on the prosecution. Consequently, the defendant has not satisfied the first Curdo prong that the order terminate a separate and distinct proceeding.

The defendant also contends that he has satisfied the second prong of Curcio because the trial court’s order so concludes the rights of the parties that further proceedings cannot affect them. To support this assertion he argues that*the contents of the police report, when unsealed, will probably cause substantial pretrial publicity, thus permanently damaging his right to a fair trial. We are not persuaded that prevention of pretrial publicity bears such reasonable relation to concluding the rights of the parties that further proceedings could not affect them. Indeed, the prosecution will continue regardless of the release or continued sealing of the police report. The defendant has available to him the usual means of ensuring against prejudicial pretrial publicity (e.g.., motion for change of venue or careful voir dire examination of prospective jurors). Furthermore, the defendant erroneously assumes that he has an automatic right to shield himself from pretrial publicity. “[Such] publicity, even if pervasive and concentrated, cannot be regarded as leading automatically in every kind of criminal case to an unfair trial.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 565, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).

“In order to satisfy the second prong of the Curdo test the defendant must do more than show that the trial court’s decision threatens him with irreparable harm. The defendant must show that [the] decision [of the trial court] threatens to abrogate a right that he or she then holds”; (emphasis in original) State v. Longo, supra, 91; such as the defendant’s right not to be tried twice for the same offense. Id. The defendant has not demonstrated that he has sustained any identifiable harm to his fair trial rights from the trial court’s decision, and it is conceivable that he might never suffer any harm. The latter would be the result, for instance, of a failure to go to trial as a consequence of a nolle, a dismissal or a disposition pursuant to a plea agreement.

The defendant is not without remedy. In the event that he is convicted and is of the opinion that the verdict has been tainted by pretrial publicity, he may challenge the trial court’s unsealing of the police report in a timely posttrial appeal.

As an additional reason for claiming satisfaction of the second Curdo test, the defendant argues that unsealing the police report will injure the reputation of the minor victim. It is rudimentary jurisprudence that the party claiming error must be aggrieved by the decision of the trial court. Milford v. Local 1566, 200 Conn. 91, 96, 510 A.2d 177 (1986). The defendant laudably desires to protect the reputation of the person he is alleged to have killed. We are not aware, however, of any case law that gives him the requisite standing to appeal any decision based on injury to his victim’s reputation.

We conclude that this court lacks subject matter jurisdiction to hear this appeal because it is not from a final judgment.

The appeal is dismissed.

In this opinion Dupont, C. J., Borden, Spallone, Daly, Norcott and Foti, Js., concurred.

Lavery, J.,

dissenting. I cannot join the majority opinion because I disagree with the majority’s refusal to find that the defendant appealed from a final judgment, thus avoiding the necessity of reaching the merits of this important appeal. Therefore, I respectfully dissent.

I

I disagree with the majority’s final judgment analysis in two respects. First, I disagree that this case can be considered to present a normal, criminal appeal, and, second, I disagree that this case fails the final judgment test promulgated in State v. Curcio, 191 Conn. 27, 27-33, 463 A.2d 566 (1983).

New things in the law are as basic or as certain as the equation underlying a criminal prosecution: The state prosecutes and the accused defends. State v. Parker, 194 Conn. 650, 653, 485 A.2d 139 (1984). This simple formula has evolved through many centuries of common law and has pertained, unchanged, under our own constitutions and laws for two centuries. Nothing in the United States or Connecticut constitutions can be read to contemplate, let alone countenance, the intrusion into criminal prosecutions of third parties uninterested in the innocence or guilt of the accused. As the majority notes, “[t]he overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusation should be removed as speedily as circumstances permit.” State v. Parker, supra, 656. This central principle suffers, however, when criminal prosecutions become the locus of litigious sideshows involving parties and issues unrelated to the accused’s guilt or innocence. The presence of The Hartford Courant in the middle of this prosecution is an aberation that places this case outside the usual definition of what we consider criminal litigation. See id., 653.

Yet, the majority fails even to note that the defendant is opposed in this “criminal” appeal not by the prosecuting authority but by a newspaper, or that the principal issues at stake are not the fairness of the adjudication of the defendant’s guilt or innocence, but whether the Courant has the right to intervene in this case and whether the court’s order unsealing the documents was erroneous. Whatever this litigation may be, it certainly cannot be considered a traditional criminal appeal. Therefore, the majority’s analysis concerning our jurisdiction over criminal appeals from nonfinal judgments; In re Juvenile Appeal (85-AB), 195 Conn. 303, 312, 488 A.2d 778 (1985) (transfer of case from juvenile to regular criminal docket not final judgment); State v. Longo, 192 Conn. 85, 90-91, 469 A.2d 1220 (1984) (denial of an application for youthful offender status not final judgment); State v. Spendolini, 189 Conn. 92, 97, 454 A.2d 720 (1983) (denial of accelerated rehabilitation not final judgment); State v. Lloyd, 185 Conn. 199, 207, 440 A.2d 867 (1981) (entry of nolle prosquei, or denial of a speedy trial claim not final judgments); is inapposite to the case before us. The defendant has brought a civil claim to this court and is opposed by a civil litigant. The relevance of the aforementioned criminal cases is limited, at best.

Even if the defendant’s appeal is not considered a purely criminal appeal, it must be taken from a final judgment or from an interlocutory judgment that, under State v. Curcio, supra, is deemed final. The majority found the defendant’s claim wanting under both prongs of the Curcio test. I find, however, that the defendant has amply satisfied the first prong of the test.

When an order or action of the trial court terminates a separate and distinct proceeding, the order is an appealable final judgment. Id., 31. Contrary to the majority’s view, the court’s ruling unsealing this police report terminated a separate and distinct proceeding. As discussed above, the order from which the defendant appeals was the result of litigation between the defendant and a newspaper, over an issue unrelated to the merits of the state’s case. It had nothing to do with the defendant’s prosecution for murder. The defendant had the right to oppose the intrusion of uninterested third parties into this prosecution, and in no way can the issue of the paper’s presence in this litigation be viewed as “part and parcel” of the prosecution.

The majority, quoting State v. Curcio, supra, finds the ruling at issue to be “merely a step along the road to final judgment” and, therefore, not a separate and distinct proceeding. Such a “step,” presumably, would affect certain contingencies further down the line, if it were in fact “part and parcel” of the prosecution. An order suppressing evidence, for instance, limits the evidence the state may later produce at trial. The majority itself notes, however, that “the prosecution will continue regardless of the release or continued sealing of the police report. ” (Emphasis added.)

Indeed, the majority’s conclusion, that the proceeding involving the unsealing of the police report will not affect the progress of the prosecution, flies in the face of its holding, “as a matter of law,” that “a proceeding involving the police report, which was sufficient for the arraigning court to hold the defendant for trial,” must be deemed to have an impact on the prosecution. This conflict reflects the majority’s confusion of the police report, which certainly is central to the defendant’s prosecution, with a proceeding involving the police report, which, as we have seen, is unrelated to the continued progress of the prosecution. The only “party” to this prosecution affected by the court’s decision on this matter was the newspaper; the defendant, the state and the court already have free access to the document.

The defendant has appealed from an order terminating a separate and distinct proceeding. State v. Curcio, supra. He is thus entitled to review of the merits of his appeal, to which I turn next.

II

There is a presumption of public access to a criminal trial; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); and to a pretrial proceeding in a criminal case. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). These rights are grounded in the first amendment to the United States constitution; U.S. Const., art. I; and are qualified by due consideration regarding the effect of pretrial publicity on the right of the accused to a fair trial. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). The presumption of access also applies to documents filed in connection with criminal proceedings. United States v. Suarez, 880 F.2d 626, 630 (2d Cir. 1989); In re The New York Times Co., 828 F.2d 110 (2d Cir. 1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1272, 99 L. Ed. 2d 483 (1988). The Courant, then, is entitled, as a matter of federal constitutional law, to seek the vindication of that right through the unsealing of the police report. Accordingly, I do not question the Courant’s “right to be heard”; Gannett Co. v. DePasquale, 443 U.S. 368, 392, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979); on the sealing of the police report. I am deeply troubled, however, by the Courant’s intervention into a criminal prosecution, even if the purpose is to vindicate its first amendment right of access to the police report.

It is my view that the Courant’s right to be heard is not abridged or burdened by requiring the paper to vindicate that right in a separate, civil action. The Courant has brought no case to our attention that holds that the paper is entitled, either as a matter of constitutional law or otherwise, to intervene in a criminal prosecution in order to air its first amendment claims. To my knowledge, such a case does not exist.

The Courant, moreover, has failed to provide any basis in Connecticut law or practice for its intervention into a criminal prosecution. Although the rules of practice provide for intervention in civil cases both as of right; Practice Book § 99; and permissively; Practice Book § 100; Horton v. Meskill, 187 Conn. 187, 191-99, 445 A.2d 579 (1982); these sections do not apply to criminal cases. See State v. Gallagher, 72 Conn. 604, 606, 45 A. 430 (1900). Criminal procedure in Connecticut is governed by a separate and distinct set of carefully drawn rules. See Practice Book §§ 592 through 1022. Of the 357 separate rules of criminal procedure in the Practice Book, none authorizes the intervention of third parties into criminal prosecutions. This court recently declined to graft a rule of civil procedure onto the criminal rules; State v. Smith, 19 Conn. App. 646, 563 A.2d 1064 (1989); and I would likewise hesitate to do so here.

Although it is true that the rule making power governing practice and procedure in the Superior Court is vested in the judges of that court, this does not mean that one judge can change or modify the rules depending on the exigencies of the particular case before him. Fattibene v. Kealey, 18 Conn. App. 344, 356, 558 A.2d 677 (1989). I agree with the analysis of the Colorado Supreme Court in People v. Ham, 734 P.2d 623, 625 (Colo. 1987), that “[t]he concept of intervention proceeds from the principle that the efficient resolution of a civil controversy often requires the addition of other persons whose interests might be jeopardized by the resolution of the controversy between the original parties. The considerations underlying nonparty intervention in a civil case, however, are not applicable to a criminal case.” The Ham court went on to hold that the Colorado rules of practice “relating to intervention in a pending civil controversy were neither designed for nor should be applied to a criminal case.” Id., 626; see also Central South Carolina Chapter, Society of Professional Journalists v. United States District Court, 551 F.2d 559, 563 (4th Cir. 1977); Gannet Pacific Corporation v. Richardson, 59 Haw. 224, 580 P.2d 49 (1978); State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975), rev’d on other grounds sub nom. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); State v. Cianci, 496 A.2d 139, 145-46 (R.I.1985); State v. Bianchi, 92 Wash. 2d 91, 593 P.2d 1330 (1979) (en banc).

I am even less inclined to torture both our rules of civil and criminal procedure by seeking to transplant a clone of one within the bosom of the other in light of the fact that other procedural tools already exist that would afford the interested persons a fuller and, presumably, fairer hearing without interfering with the defendant’s prosecution.1 agree with the analysis of the Rhode Island Supreme Court in State v. Cianci, supra, that “in future cases of this nature, the better practice would be for representatives of the press or the public to institute a separate, independent action against the sealing authority by way of a complaint for declaratory judgment in the Superior Court. A hearing could then be held . . . and ... a record . . . created for this court to review if the complaining party is still aggrieved. In this way the public’s and the media’s interests, which are collateral to the criminal proceeding, can be fully adjudicated without interfering with or interrupting the criminal proceeding in any way. A defendant’s constitutional right to a fair trial should not be interrupted or sidetracked while collateral interests of third parties are adjudicated.” Id., 146.

An action in the nature of a declaratory judgment is the most appropriate remedy for the adjudication of the rights of all the interested parties; see id.; especially in light of the fact that, while intervention might serve the interests of the press, it would not allow others interested in the sealing or unsealing to be heard. The press might, for instance, seek the unsealing of privileged mental health records; see State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986); sealed records of conversations between victim-witnesses and sexual assault counselors; see In re Robert H., 199 Conn. 693, 509 A.2d 475 (1986); sealed records from the department of children and youth services; see State v. Apostle, 8 Conn. App. 216, 238, 512 A.2d 947 (1986); or sealed transcripts from trials that resulted in acquittal of the accused; see State v. Douglas, 10 Conn. App. 103, 522 A.2d 302 (1987). Although the confidentiality of all these records is protected in varying degree by statute; see, e.g., General Statutes §§ 52-146c-146j (psychiatric or psychological records); General Statutes § 52-146k (rape crisis center records); General Statutes § 17-47a (DCYS records); General Statutes § 54-142a (a) (erased trial transcripts); a motion to unseal these records, brought not by the defendant but by an intervening newspaper, might not be opposed by the state with the same vigor that would be applied by the subject of the reports. Thus, it is preferable to locate the unsealing litigation in a forum wherein all concerned persons could have an adequate opportunity to be heard.

In sum, I would find error in the trial court’s order granting the Courant’s motion to intervene and in its subsequent order vacating the sealing order, and would vacate those orders and remand the case for further proceedings.

       On June 15, 1989, The Hartford Courant and Lynn Tuohy moved to dismiss the appeal for lack of subject matter jurisdiction. We denied the motion without opinion, leaving the matter for possible further consideration as part of the main appeal, when it could be fully briefed and argued.

       At the court’s request, the parties briefed the issue of whether the trial court was correct in granting intervenor status to The Hartford Courant and Lynn Tuohy. Our conclusion that this court has no jurisdiction to hear the appeal ends any further consideration of that matter. Whenever a court finds a case on its docket over which it has no jurisdiction, it may proceed no further and must dismiss the matter. Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989). Accordingly, we do not reach the question of the propriety of granting intervenor status to The Hartford Courant and Tuohy.

       This court’s jurisdiction is established by General Statutes §§ 51-197a and 52-263. We have no authority to hear appeals that do not come within the parameters of these statutes. General Statutes § 51-197a (a) provides in pertinent part: “Appeals from final judgments or actions of the superior court shall be taken to the appellate court . . . .” (Emphasis added.) General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8, 8-9, 8-28 and 8-30.” (Emphasis added.)
      See also Practice Book § 4000, which provides: “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, that party may appealyrom the final judgment of the court or of such judge, or from a decision setting aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in Gen. Stat. §§ 8-8, 8-9, 8-28 and 8-30.” (Emphasis added.)

       For example, a defendant may take an interlocutory appeal of a double jeopardy claim. State v. Seravalli, 189 Conn. 201, 206 n.6, 455 A.2d 852 (1983). In addition, General Statutes § 52-265a (a) provides in part that “any party to an action who is aggrieved by an order or decision of the superior court in any action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the supreme court within two weeks from the date of the issuance of the order or decision.” See also General Statutes §§ 31-118 and 49-35c. Appeals of rulings on motions to dismiss or suppress following judgments entered upon conditional pleas of nolo contendere are also allowed. Practice Book § 4003 (b).

       Subsequent to oral argument, the defendant pleaded guilty to the charges against him. Despite his plea, the appeal is not moot because the defendant has not, as yet, been sentenced. As indicated in the text, the imposition of sentence constitutes the final appealable judgment in a criminal case. State v. Seravalli, 189 Conn. 201, 205, 455 A.2d 852 (1983).

       See section II, infra.

       Nothing more clearly illustrates the total absence of any connection between the progress of this appeal and the progress of the larger prosecution than the fact that, during the pendency of this appeal, the prosecution continued in the trial court and the state and the defendant have reached a plea agreement. Thus, it cannot be said in this case that “ ‘the result of review [was] “to halt the orderly progress of a cause [in order to] consider incidentally a question which has happened to cross the path of such litigation . . . .’ [Cobbledick v. United States, 309 U.S. 323, 326, 60 S. Ct. 540, 84 L. Ed. 2d 783 (1940).]” State v. Parker, 194 Conn. 650, 655, 485 A.2d 1139 (1984).

       note at this point that, contrary to the Courant’s assertion, the fact that the unsealing of the police report will cause the defendant to suffer no legally cognizable harm does not deprive the defendant of standing to bring this appeal. Although the defendant may not be aggrieved by the court’s decision to unseal the report, he is certainly aggrieved by the court’s decision to allow the newspaper to intervene in the prosecution in the first place.

       In several of the federal eases cited by the Courant, the newspaper was allowed to intervene. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); United States v. Suarez, 880 F.2d 626 (2d Cir. 1989); United States v. Gerena, 703 F. Sup. 211 (D. Conn. 1988). In none of these cases, however, was intervention held, or even suggested, to be the procedural course preferred by the court, let alone the exclusive procedural course. In these cases, the newspaper’s intervention was not challenged and was, therefore, not an issue before the court. The procedural history of any of these cases is of no precedential value unless it was relevant to the court’s holding. Moreover, that a mode of procedure is accepted or even required in federal courts does not mean that such a procedure may be adopted by individual judges of the Superior Court. Fattibene v. Kealey, 18 Conn. App. 344, 356, 558 A.2d 677 (1989).

       Another procedural remedy, although not exactly on all fours, is also worthy of comment. General Statutes § 51-164x (which is identical to Practice Book § 2022) permits “[a]ny person affected by a court order which prohibits any person from attending any session of court . . . whether at pretrial or trial stage,” to appeal such order by-filing a motion for review in the Appellate Court. As discussed above, the presumption of constitutionally guaranteed public access to criminal trials has been held to apply to documents filed in connection with criminal proceedings. United States v. Suarez, 880 F.2d 626 (2d Cir. 1989). Although it is probably beyond the scope of the rule to read Practice Book § 2022 so as to allow a motion for review of an order sealing all or part of the file in a criminal prosecution to be filed in this court in the same manner as a motion for review of a court closure order, this court may wish to consider modifying the rule so as to facilitate such review.


author: Lavery, J.

text:
    State of Connecticut v. Robert Ducatt
    (7981)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 5, 1989
    decision released June 19, 1990

      Brian M. O’Connell, with whom, on the brief, was Steven F. Meo, for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and John A. O’Reilly, Jr., assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, after a jury trial, of operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a (a). He claims that the trial court should have granted his motion for a judgment of acquittal and failed to instruct the jury properly on the meaning of the term “operate” as it is used in § 14-227a (a). We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. On September 21,1988, at approximately 11:30 p.m., Officer William LaDuke of the Canton police department was on routine patrol when he noticed a car idling in the middle of the parking lot of a furniture store, with its headlights and brake lights lit. Investigating further, LaDuke found the defendant sitting in the driver’s seat, slumped over and unconscious. The defendant had one hand draped over the steering wheel and the other “curled around the base of” the gearshift. On his fourth attempt, LaDuke succeeded in awakening the defendant to the point that he was able, with difficulty, to produce his driver’s license. LaDuke arrested the defendant after he failed to execute several field sobriety tests. Breath alcohol tests administered at 12:34 a.m. and 1:07 a.m. yielded results of .120 and .119 respectively.

After the state presented its case at trial, the defendant moved for judgment of acquittal on the ground that insufficient evidence existed to establish that the defendant operated the vehicle in which he was found. The court denied the motion and the defendant subsequently appealed, challenging both the denial of the motion for judgment of acquittal and the court’s instruction on the meaning of the term “operate.”

The dispositive issue in both claims is what constitutes operation within the meaning of § 14-227a (a). The statute provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the [aforementioned] offense . . . if he operates a motor vehicle on a public highway ... or in any parking area for ten or more cars ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one percent or more of alcohol, by weight.” Nothing else in the statute clarifies the meaning of “operate.” In fact, the use of the term throughout the other sections of Chapter 248, General Statutes §§ 14-212 through 14-296b inclusive, is ambiguous, and makes no clear distinction between “driving” and “operating” a motor vehicle.

Our Supreme Court established such a distinction, however, when it approved the following jury instruction in State v. Swift, 125 Conn. 399, 402-403, 6 A.2d 359 (1939): “[T]he statute [in question] refers to persons who shall operate a motor vehicle, and is not confined to persons who shall drive a motor vehicle. A person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle. So if you find that the accused, while under the influence of intoxicating liquor, got into the automobile, while it was standing [at the] side of the street, and manipulated the machinery of the motor for the purpose of putting the automobile into motion, the accused being in the car and in a position to control its movements, the accused would be guilty of operating a car under the influence of intoxicating liquor, whether the automobile moved or not.”

This passage has become the standard jury instruction on operation in Connecticut and was included in the instructions of the trial court in this case. The distinction established in Swift between driving and operating has not been questioned in subsequent cases.

The defendant contends that the portion of the Swift instruction that reads “manipulated the . . . motor for the purpose of putting the automobile into motion” (emphasis added) requires the jury to find that the defendant intended to move the vehicle. The trial court disagreed and refused to so instruct the jury.

The passage from Swift is ambiguous concerning the intent needed to constitute operation. The sentence quoted by the defendant suggests that the defendant must intend to move the vehicle. The previous sentence, however, explicitly defines operation to occur when an intoxicated person in the vehicle “intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” Here, the requisite intent is not to drive the vehicle but merely, for instance, to engage the ignition or manipulate the gearshift or release the parking brake.

To resolve this ambiguity, we first consider the statute itself. “In order to ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990).” Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 1 (1990). The purpose of the statute is manifest: to prevent the operation of motor vehicles by persons who, because of alcohol or drug intoxication, are deemed incapable of operating a vehicle responsibly. The statute does not specify or suggest that an intent to move the vehicle is an element of the offense. To require proof of such an intent, moreover, would frustrate the purpose of the statute.

That a severely intoxicated person does not intend to move a motor vehicle the engine of which he has started provides no assurance that the vehicle will in fact remain stationary. The possibility, moreover, that an intoxicated motorist might evade liability under § 14-227a (a) because his intoxication precluded him from intending to drive the vehicle would make a mockery of the legislature’s purpose in enacting the statute. Whether intent “is or is not to be implied in the definition of a statutory crime, where it is not expressed, must be determined from the general scope of the Act, and from the nature of the evils to be avoided. See State v. Nussenholz, 76 Conn. 92, 96, 55 A. 589 (1903).” State v. Gaetano, 96 Conn. 306, 316, 114 A. 82 (1921). It is idle to suggest that a significant difference exists between a drunken motorist who starts the motor of his car with the intent of moving the car, and a drunken motorist who starts his car with no such intent. In either case, the controls of a car capable of immediate powered movement are under the control of an intoxicated motorist, which is precisely the evil the legislature sought to avoid through § 14-227a (a). We conclude, therefore, that the statute does not require the state to prove that the defendant intended to move the vehicle in order to prove operation under § 14-227a (a).

An accused operates a motor vehicle within the meaning of General Statutes § 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not. See State v. Swift, supra. The trial court correctly refused to instruct the jury that it had to find that the defendant had intended to move the vehicle.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant presented evidence on his own behalf after the trial court denied his motion for judgment of acquittal. We need not determine whether the defendant’s presentation of evidence constituted a waiver of his challenge to the denial of the motion for judgment of acquittal; State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984); because the same issue controls both this claim and the defendant’s claim concerning the court’s instructions.

       The defendant cites Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 472 n.1, 429 A.2d 943 (1980), for the proposition that “operation as it refers to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle.” That case is inapposite; the issue in Davey was whether the negligent manipulation of a winch on the back of a truck, the controls for which were also at the back of the truck, constituted “operation” of the vehicle within the meaning of General Statutes § 31-293a, a section of the Workers’ Compensation Act. More important, the discussion of operation in Davey does not conflict with that in State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939), and does not support the defendant’s contention. The Davey court was concerned not with equating operating with driving, but with limiting the definition of operation to the use of those mechanical or electrical devices that are “integral part[sj of the motor vehicle.” Davey v. Pepperidge Farms, Inc., supra.


author: Norcott, J.

text:
    Northern Homes Distributors, Inc., et al. v. Elaine B. Grosch
    (8329)
    Spallone, O’Connell and Norcott, Js.

      Argued April 16
    decision released June 19, 1990

      Michael A. D’Amico, for the appellant (defendant).

      J. Jude Antoinetti, with whom was Robert E. Ghent, for the appellees (plaintiffs).
   Norcott, J.

This appeal arises out of the dismissal of the defendant’s counterclaim in the plaintiffs’ action for the collection of monies due on certain promissory notes. The dispositive issue is whether the prior pending action doctrine bars the defendant from bringing her counterclaim in the plaintiffs’ action while a previous action instituted by her is still pending.

The following facts are relevant to this appeal. Elaine B. Grosch and Donald Ghent entered into an agreement in which Grosch agreed to buy a parcel of land from Donald Ghent, and he agreed to build condominiums for resale by Grosch. As a result of conflicts arising from this agreement, Grosch instituted an action against Donald Ghent, asserting claims of breach of contract, misrepresentation, fraudulent inducement, violation of the Connecticut Unfair Trade Practices Act, breach of fiduciary duty, and breach of implied convenant of good faith and fair dealing.

Subsequently, the plaintiffs, Donald Ghent, Laurine Ghent and Northern Homes Distributors, Inc., instituted the present action against Grosch, seeking to collect monies due on several promissory notes signed during the course of the purchase of land and construction of the condominiums. Grosch filed a counterclaim in this action. The first twenty-three counts of Grosch’s counterclaim are identical to counts one through twenty-three of Grosch’s original complaint. The next twenty-three are identical to counts one through twenty-three of Grosch’s original complaint, the only alteration being that they are asserted against Northern Homes Distributors, Inc., and add an additional count seeking to hold Donald Ghent liable on these counts as the alter ego or instrumentality of Northern Homes. No counterclaim was asserted against Laurine Ghent.

The plaintiffs moved to dismiss Grosch’s counterclaim on the basis of the prior pending action doctrine, and the trial court granted that motion. This appeal ensued.

The defendant claims that the trial court should not have dismissed her counterclaim on the basis of the prior pending action doctrine. We do not agree.

“By 1850, it was already ‘well settled, that the pendency of a prior suit between the same parties, for the same thing, [would generally] abate a latter suit; because, in such a case, the last is deemed to be unnecessary, and therefore vexatious.’ Quinebaug Bank v. Tarbox, 20 Conn. 510, 515 (1850).” Kolodney v. Kolodney, 2 Conn. App. 697, 699-700, 483 A.2d 622 (1984); see also Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985). “When two separate lawsuits are ‘virtually alike’ the second suit is generally dismissed on the basis of the prior pending action doctrine. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981).” Planning & Zoning Commission v. Campanelli, 9 Conn. App. 534, 536, 520 A.2d 242 (1987); Halpern v. Board of Education, supra, 652. “We must examine the pleadings to ascertain whether the actions are ‘virtually alike’ ”; Halpern v. Board of Education, supra, 653; that is, whether upon examination, the pleading reveals that the party seeks to “obtain the same end or object”; Planning & Zoning Commission v. Companelli, supra, 536; and to adjudicate the same underlying rights. Halpern v. Board of Education, supra, 655.

The defendant first asserts that the prior pending action doctrine cannot be applied in this situation. Contrary to the defendant’s contention, the prior pending action doctrine applies with equal force to counterclaims. Cole v. Associated Construction Co., 141 Conn. 49, 53, 103 A.2d 529 (1954). In this instance, the court must compare the allegations made in the counterclaim with those contained in the complaint brought by the party bringing the counterclaim. Id. If the counterclaim and the party’s complaint contain “essentially the same allegations,” the latter of the two must be dismissed. Id., 54.

In comparing the defendant’s counterclaim in this .case to her original complaint, we conclude that the trial court correctly determined that they were “virtually alike.” In both actions, Grosch seeks to have the same claims adjudicated, and ultimately seeks to hold Donald Ghent liable. Her contention that the parties in her counterclaim are different from those in the original complaint does not survive scrutiny. While it is true that her counterclaim includes counts against Northern Homes Distributors, Inc., and her complaint did not, she has also added a count to her counter-claim asserting that Donald Ghent is liable as the “alter ego” of Northern Homes Distributors, Inc. Hence, although on its face, her counterclaim may appear to be against two parties, the defendant’s ultimate goal in both actions is to hold Donald Ghent liable on these claims. See Halpern v. Board of Education, supra, 651.

Our Supreme Court has held that superficial differences are not enough to overcome dismissal under the prior pending action doctrine. In Halpern, the trial court found that the factual allegations made by the party in the two actions were identical and the ultimate goals in both were similar. The trial court dismissed the second action on the basis of the prior pending action doctrine. Id., 649. Our Supreme Court upheld the trial court’s holding that, even though the remedy sought in the second action differed from that sought in the first action, the difference was “of no significant consequence. The ultimate goals in both cases [were] not dissimilar.” (Emphasis added.) Id., 651. “The prior pending action doctrine has evolved as a ‘rule of justice and equity’; Hatch v. Spofford, 22 Conn. 485, 494 (1853); and retains its vitality in this state, in which ‘joinder of claims and of remedies is permissive rather than mandatory.’ ” Id., 652.

In this case, the defendant’s counterclaim was appropriately dismissed under the prior pending action doctrine. “[T]he ‘same underlying rights’ . . . which the [defendant] asserted in the second action would be adjudicated and necessarily determined in the prior pending action.” Id., 655. The defendant does not argue that the remedy in the prior pending action would be inadequate or incomplete; see id., 655; but rather seeks the same remedy in her counterclaim. “[T]he result of the second action ‘would be mutual to the relief sought in the [first action].’ ” Id., 654.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in the action that is the subject of this appeal are Donald Ghent, Northern Homes Distributors, Inc., and Laurine Ghent. Only Donald Ghent was named as the defendant in the original action.

       The defendant moved for articulation and rectification, and that motion was denied. The defendant did not raise that denial as an issue in this appeal. We note that review of such an order is available only by a motion for review pursuant to Practice Book § 4054.


text:
    State of Connecticut v. David Copeland
    (8468)
    Dupont, C. J., Daly and Norcott, Js.
    Argued April 3
    decision released June 19, 1990

      Dennis C. La Ganza, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Karen Diebolt, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant was convicted after a jury-trial of first degree robbery in violation of General Statutes § 53a-134a (3). He challenges on appeal the trial court’s rulings (1) denying his request for a Franks hearing, and (2) permitting an in-court identification by the victim after ruling an out-of-court identification inadmissible.

The following facts are undisputed. On February 27, 1988, John Trentalange was supervising the Michael Lange Music Shop in Waterbury. At approximately 10 a.m., a black male entered the shop and asked Trentalange about guitar lessons. The man was wearing a dark leather or vinyl hat, a black jacket, a yellow shirt and dark bluish pants. Trentalange spoke with this man for approximately ten to fifteen minutes, and then the man left.

Later that day, at about 3:15 p.m., the same man returned to the music shop. He was dressed in the same clothes he had worn in the morning, except that this time he was wearing a red wool ski cap. After the other customers left the store, the man pulled out a knife with a four inch blade and demanded the money in the cash register. He took approximately $250. Trentalange described the perpetrator as a brown-skinned male, about six feet tall and 160 pounds, with decayed and crooked teeth and no facial hair.

On February 29,1988, the police obtained a warrant authorizing the search of the defendant’s room for the clothing that Trentalange had described, the knife and certain items described by the manager of a McDonald’s that had been robbed in a similar manner on January 29, 1988. The affidavit in support of the warrant was based on information given by David Waters, who lived in the same apartment building as the defendant. Waters told police that the defendant had come into his room on February 27,1988, and informed him that he had robbed the Michael Lange Music Shop and a McDonald’s. Waters said the defendant told him that he had robbed the music shop and had to “lay low,” that he had pretended to want to buy something, then pulled a knife, threatened the man in the store, and robbed him of $125 to $130. Waters said the defendant then showed him a buck knife with a four inch chipped blade and brown handle. Waters also said that the defendant’s teeth were decayed and crooked.

The search of the defendant’s room resulted in the seizure of the shirt and jacket described by Trentalange and the knife believed to have been used in the robbery. The items seized were introduced at trial. Also at trial, Trentalange positively identified the defendant as the perpetrator, and, thereafter, the jury returned a verdict of guilty.

I

The defendant first claims that the trial court should have granted his request for a Franks hearing. He alleges that the affiants intentionally omitted material information from their affidavit.

In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the Supreme Court held that a defendant may challenge the veracity of the affiants and obtain an evidentiary hearing on the issue if he can make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit”; id., 155-56; and that “the allegedly false statement is necessary to the finding of probable cause . . . .” Id., 156; see also State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990). This rule also applies where the claim is that facts were intentionally or recklessly omitted. State v. Bergin, supra; State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 722 (1984).

“ ‘[T]he Fourth Amendment requires that a hearing be held at the defendant’s request’ State v. Ruscoe, 212 Conn. 223, 232, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); only if the statements that were allegedly intentionally omitted would affect the finding of probable cause.

Specifically, the defendant claims that the affiants failed to include in the affidavit the fact that Waters, the person who supplied them with the tip about the defendant, had originally been a suspect in the case and had a prior felony record. The defendant contends that this information was material to a finding of probable cause because it affected Waters’ credibility.

In denying the defendant’s request, the trial court held that even if the information had been included in the warrant affidavit, it would not have affected the determination of probable cause, and a hearing was, therefore, unnecessary. We agree.

Under our state constitution, the warrant must pass th e Aguilar-Spinelli test. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). "The Aguilar-Spinelli test for reviewing a magistrate’s finding of probable cause consists of two prongs: ' “ 'The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” ’ State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).” State v. Morrill, 205 Conn. 560, 566, 534 A.2d 1165 (1987).

There is no question in this case that Waters satisfied the basis of knowledge prong of the AguilarSpinelli test. The affidavit states that Waters obtained his information about the crime directly from the defendant and that he had seen the knife that the defendant claimed to have used in the robbery. Waters’ information was obtained through his direct observation, which is sufficient to satisfy the basis of knowledge requirement. See State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983); see also State v. Morrill, supra; State v. Banta, 15 Conn. App. 161, 177, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988); cf. State v. Barton, 22 Conn. App. 62, 576 A.2d 561 (1990).

The defendant argues that if the omitted information, that is, that Waters had a criminal felony record and was originally a suspect, had been included in this affidavit, the affidavit could not have satisfied the second prong oiAguilar-Spinelli. He argues that with this additional information, a magistrate could not have found the informant to be credible or his information reliable. We find this argument to be unpersuasive.

“[A]n affiant may omit facts that he believes to be either immaterial or unsubstantiated.” State v. Bergin, supra; see also People v. Stewart, 105 Ill. 2d 22, 43, 473 N.E.2d 840 (1984), cert. denied, 471 U.S. 1131, 105 S. Ct. 2666, 86 L. Ed. 2d 283 (1985). Even if he had read these additional facts, the magistrate in this case could have determined that the information was reliable. The first fact that verifies the reliability of the information is that the affiant here provided the name of the informant rather than employing “the common practice of referring to an anonymous informant, thereby exposing him to public view . . . and to possible criminal and civil liability should his allegations prove false.” State v. Daley, supra, 725. In this light, Waters could be viewed as a citizen informer; see id., 724; and “ ‘[i]t is generally agreed . . . that a comparable showing is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or a witness.’ 1 W. LaFave, Search and Seizure § 3.4, p. 587.” Id.; State v. Banta, supra, 177-78.

Further, even if we were to accept the defendant’s argument that Waters could not be viewed as a citizen informer, the affidavit still verifies the reliability of his information. Waters’ voluntary account of the crime comports completely with the victim’s own account. While it is possible, as the defendant claims, that Waters knew the details of the robbery because he had committed the crime himself, we cannot ignore the additional facts involved here. Waters also described the defendant as having crooked and decayed teeth, the same distinct characteristic that the victim had described. The fact that the police corroborated this significant piece of information with the statement taken from the victim is enough to establish reliability. “If the police have evidence (such as from prior independent police work) which corroborates some of the details included in the affidavit, then an inference of reliability will arise. ... In fact, if there has been sufficient corroboration, a statement may support a warrant regardless of its source.” (Citations omitted; emphasis added.) State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981). Even if there were initially a suggestión that Waters fabricated his information, the suggestion was repudiated by the police investigation confirming its accuracy. See State v. Ruscoe, supra, 233. “Where many significant portions of a statement of an informant have been verified from independent reliable sources, it may be reasonable to infer the accuracy of the remainder.” State v. Daley, supra, 721; see also State v. Weinberg, 215 Conn. 231, 239-40, 575 A.2d 1003 (1990).

In reviewing the warrant affidavit, we must read the warrant in a common sense and realistic manner; State v. Banta, supra, 177; and determine whether the facts in the affidavit are sufficient to “ ‘justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of the warrant.’ ” State v. Delmonaco, supra, 337. Because the inclusion of the information that was allegedly intentionally or recklessly omitted would not affect the determination of probable cause, the trial court did not err in denying the defendant’s request for a Franks’• hearing. See State v. Bergin, supra, 66-67.

II

The defendant next claims that the trial court erred in allowing the victim to make an in-court identification of the defendant after excluding an out-of-court identification. We disagree.

At the suppression hearing, the following facts were established. In June, 1988, Trentalange was subpoenaed to the Waterbury courthouse to talk to the state’s attorney. He was told that there was a potential problem with the case because he was unable to make an identification. Anthony Solmita, an investigator, led Trentalange through a corridor in the courthouse where the defendant was standing. There were approximately eight other people in the hallway, at least four of whom were white, and most of whom were standing to the right of the defendant. As they entered the hallway, Solmita asked Trentalange, “Do you see him around here?” Solmita knew that the defendant was represented by counsel and that Trentalange previously had been unable to make a positive identification from photographic arrays on two separate occasions. The defendant was the only one present whose photograph Trentalange had seen before, during photographic arrays viewed in the previous March and May. Trentalange identified the defendant during this encounter.

At this hearing, Trentalange testified that he believed he would have an independent recollection of the robber regardless of this courthouse confrontation. The defendant was not in the courtroom during this hearing.

The trial court excluded the out-of-court identification without articulation, but found that Trentalange had a sufficient independent basis to make an in-court identification. The defendant claims error in the portion of the trial court order allowing the in-court identification. The defendant does not claim that the in-court identification was unnecessarily suggestive, but rather he claims that it was fatally tainted by the previous out-of-court identification. He argues that Trentalange could not have an independent, untainted basis on which to make the identification.

We must first determine “whether the state met its burden of establishing by clear and convincing evidence . . . that the victim based [his] in-court identification ‘upon disassociated observation independent of the defective pretrial procedure.’ ” (Citations omitted.) State v. Gordon, 185 Conn. 402, 418, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); see also State v. Mitchell, 204 Conn. 187, 204, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Guertin, 190 Conn. 440, 458-59, 461 A.2d 963 (1983); State v. Liptak, 21 Conn. App. 248, 251-52, 573 A.2d 323, cert. denied, 215 Conn. 809, 576 A.2d 540 (1990). The factors that we must consider in making this reliability determination are: the opportunity that the witness had to view the suspect, the degree of attention, the accuracy of description, the witness’ level of certainty, and the time between the crime and the confrontation. State v. Gordon, supra, 416-18; see also State v. Mitchell, supra, 202. “The reliability inquiry delineated in Manson [v. Brathwaite, 432 U.S, 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)] is fact-bound and made on an ad-hoc basis. Generally, where the admissibility of evidence depends upon a preliminary question of fact to be determined by the court, ‘its decision is not to be reversed unless there is clear and manifest error.’ ” State v. Mitchell, supra, 203.

The defendant suggests that Trentalange’s in-court identification was fatally tainted by the inclusion of the defendant’s photograph in both photographic arrays viewed by Trentalange and by the suggestive out-of-court identification. He argues that Trentalange’s inability to make a positive identification of the defendant from those photographic arrays, the viewing of the defendant’s photograph in both arrays, plus the courthouse identification, would have a subliminal effect on Trentalange, necessarily affecting a subsequent in-court identification. We do not agree.

In this case, the evidence supports the trial court’s conclusion that Trentalange had an independent basis upon which to make an in-court identification. Trentalange had a lengthy opportunity to view the defendant. He saw the defendant in the morning on the day of the crime and spoke with him for approximately ten to fifteen minutes. The defendant later returned, and Trentalange again had an opportunity to view him. The defendant waited in the store until the other customers had left, and he then approached Trentalange with a knife, demanding money. At no time was his face covered. Compare State v. Perez, 198 Conn. 68, 502 A.2d 368 (1985).

Trentalange also had a high degree of attention because he was speaking to the defendant one-on-one for approximately fifteen minutes as they engaged in a discussion about guitar lessons. Cf. State v. Liptak, supra, 253. Also supportive of a conclusion as to the victim’s high degree of attention are the facts contained in his description of the defendant. He described the defendant’s clothing in detail, stated that the defendant was wearing a different hat the second time he entered the shop and that the defendant had grown facial hair since the incident, and, most important, said that the defendant had the distinctive feature of crooked and decayed teeth. The victim indicated that he could make an identification with 100 percent certainty.

The prior uncertainty expressed by Trentalange in his attempt to make an identification of the defendant does not render the in-court identification unreliable. “[S]uch prior uncertainty goes only to the weight to be given to the proffered in-court identification, and not to its admissiblity.” State v. Perez, supra, 76. Further, the defendant’s claim that the fifteen month time period between the incident and the identification affected the reliability of the identification is unpersuasive. While fifteen months may, indeed, be excessive in certain cases; see State v. Gordon, supra, 418; when taken with the totality of the circumstances in this case, it is not enough to render the identification unreliable.

We conclude that, under the totality of the circumstances, the trial court was correct in concluding that the victim’s in-court identification of the defendant was made on an independent basis and was, therefore, reliable. It was for the jury to weigh the prior uncertainty and determine what weight should be afforded to the in-court identification.

The judgment is affirmed.

In this opinion the other judges concurred.

        Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

       Defense counsel stated at the hearing on the Franks motion that Waters had a criminal record and quite possibly a felony record. No evidence was ever produced to support that assertion, which the trial court found to be insufficient to warrant a Franks hearing, even if true.

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).


author: Borden, J.

text:
    State of Connecticut v. David Brown
    (8067)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 14
    decision released May 9, 1990

      Judith A. Busch, with whom, on the brief, was Ralph Sherman, law student intern, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and David Shepak, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of the trial court revoking his probation and reinstating the suspended portion of his original sentence. The dispositive issue is whether, under the circumstances of this case, the defendant’s operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a constituted a violation of that condition of his probation order forbidding him from violating “any criminal law” of this state. We conclude that it does, and, accordingly, we affirm.

The following facts are undisputed. In 1985, the defendant was convicted of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. He was sentenced to a term of five years, execution suspended after two and one-half years, followed by three years probation. Upon his release from custody, a probation officer explained the conditions of the probation order to the defendant, and the defendant signed the order. Two special conditions of probation were that he not operate a motor vehicle without a valid license, and that he receive alcohol counseling. In addition to the two special conditions, the order contained five conditions. The first of the five conditions specified that the defendant must “not violate any criminal law of the United States, this state or any other state.”

In August, 1988, the defendant was arrested for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227U. While that prosecution was pending, the state charged the defendant with violation of probation, claiming that his conduct of operating a motor vehicle while under the influence of liquor, in violation of General Statutes § 14-227a, violated the condition of probation that he not violate any “criminal law” of this state. After a probation revocation hearing, the court found that the defendant had engaged in conduct that was in violation of § 14-227a. The court further found that the defendant’s conduct was a clear violation of a condition of his probation, and that the requirements of rehabilitation of the defendant and protection of the community would be served by revoking his probation. The court concluded that under State v. Kluttz, 9 Conn. App. 686, 521 A.2d 178 (1987), General Statutes § 14-227a constituted a “criminal law” for purposes of the defendant’s probation. Accordingly, the court revoked his probation and reinstated the suspended portion of his original sentence. This appeal followed.

The defendant raises four intertwined claims: (1) the court violated his due process rights by adding a condition of probation without notice to him; (2) the court abused its discretion in finding that he violated a criminal law; (3) the defendant did not violate any criminal law; and (4) the court reached conclusions contrary to the evidence. Although the defendant purports to raise these four separate claims, he did not brief or argue them separately.

We first note that, despite the defendant’s purported claim that the court reached conclusions contrary to the evidence, he does not challenge the court’s factual finding that he operated a motor vehicle while under the influence of liquor. Nor does he argue that the court abused its discretion in revoking his probation because revocation and commitment were, under the factual circumstances of this case, disproportionate remedies for the nature of his violation. The linchpin of his claim is that, because under State v. Kluttz, supra, operating a motor vehicle in violation of General Statutes § 14-227a is a motor vehicle violation and not a crime, his probation was invalidly revoked. We disagree.

In Kluttz, we held that, for purposes of the statutory definitions set forth in General Statutes § 53a-24 (a), negligent homicide with a motor vehicle in violation of General Statutes § 14-222a is a “motor vehicle violation” and not an “offense” or “crime.” Id., 693. On the basis of the same analysis, we conclude that for purposes of General Statutes § 53a-24 (a), § 14-227a is a motor vehicle violation and not a “crime.” That conclusion, however, does not resolve this case.

The issue confronting this court in Kluttz was whether General Statutes § 14-222a, negligent homicide with a motor vehicle, was a lesser included offense of General Statutes § 53a-57, misconduct with a motor vehicle, for purpose of the lesser included offense doctrine. We concluded that even though negligent homicide with a motor vehicle was not a crime for purposes of General Statutes § 53a-24 (a), it was an offense for purposes of the lesser included offense doctrine. We reasoned that “jwjhat may or may not be a criminal offense for purposes of a particular statutory categorization is not necessarily determinative of whether it is a criminal offense for purposes of the lesser included offense doctrine. See, e.g., Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980) (traffic violation may be an ‘offense’ for purposes of double jeopardy analysis). Whether the lesser included offense doctrine should apply to include a transgression of the law which the legislature has categorized for certain purposes as noncriminal depends, not on that categorization, but on the functions and purposes of the doctrine itself.” State v. Kluttz, supra, 699.

Similarly, whether the particular transgression of the law invoked here, which the legislature has deemed to be noncriminal for purposes of General Statutes 53a-24 (a), should be regarded, nonetheless, as criminal for purposes of a condition of probation, depends not on that categorization but on the functions and purposes of probation. Those functions and purposes lead us to conclude that, under the facts of this case, a violation of General Statutes § 14-227a was, for purposes of the defendant’s conditions of probation, a violation of the criminal laws of this state.

General Statutes § 53a-29 (a) provides that the court may impose a sentence of probation “if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.” Thus, three functions and purposes served by probation emanate from the statute: (1) a recognition that, in certain cases, the protection of the public does not require incarceration of the defendant; (2) the need for rehabilitation of the particular defendant, under probation supervision; and (3) that the ends of justice would be served by such a sentence. Consistent with these statutory functions and purposes, our Supreme Court has stated that “the purpose of probation is ‘to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.’ ” State v. Smith, 207 Conn. 152, 164, 540 A.2d 679 (1988), quoting Burns v. United States, 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266 (1932). Probation is designed “ ‘to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.’ ” State v. Smith, supra, 165, quoting Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). The “two central concerns of the probation system [are] the successful rehabilitation of the probationer and the safety of the community.” United States v. Dane, 570 F.2d 840, 845 (9th Cir. 1977).

Here, the defendant was on probation for the crime of manslaughter in the second degree with a motor vehicle while intoxicated. During the defendant’s probationary term, the state afforded him an opportunity for supervised rehabilitation to address his tendency to drink and drive. At the same time, conditions on the defendant’s probation were imposed in order to protect the public from any additional exposure to harm resulting from that dangerous tendency. General Statutes § 14-227a, which the defendant was found to have violated, proscribes the very type of conduct contemplated by his probation order, and carries a term of incarceration of not more than six months for a person convicted of a first violation. Under these circumstances, General Statutes § 14-227a constituted a “criminal law” within the meaning of the defendant’s conditions of probation.

This conclusion also disposes of the defendant’s claim that the court violated his due process rights by adding a condition of probation without giving him notice thereof. Since a violation of General Statutes § 14-227a constituted a violation of the criminal laws of this state, and since it is undisputed that the probation order signed by the defendant included that condition, his constitutional argument falls of its own weight. Furthermore, there was undisputed evidence that his probation officer, when discussing the probation conditions with the defendant, specifically told him that certain motor vehicle violations for which incarceration is a possible sentence, such as driving under the influence of liquor, would be considered a violation of his probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 14-227a provides in pertinent part: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor . . . . (h) Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, be fined not less than five hundred dollars nor more than one thousand dollars and (A) imprisoned not more than six months, forty-eight consecutive hours of which may not be suspended or reduced in any manner or (B) sentenced to a term of one hundred hours of community service, as defined in section 14-227e, and have his motor vehicle operator’s license or nonresident operating privilege suspended for one year . . . .”

       General Statutes § 53a-24 (a) provides: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or of any other state or of federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation.’ Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.”