author: FOTI, J.

text:
    STATE OF CONNECTICUT v. WILLIAM MCELVEEN
    (AC 20845)
    Foti, Dranginis and Flynn, Js.
    Argued February 13
    officially released April 16, 2002

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, former state’s attorney, and Paul Ferencek, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, William McElveen, appeals from the trial court’s judgment revoking his probation and imposing a three year prison sentence. On appeal, the defendant claims that the court improperly (1) found him in violation of probation and (2) ordered him to serve the entire original three year prison sentence. We affirm the judgment of the trial court.

The court found the following facts. The defendant was charged with burglary in the third degree in violation of General Statutes § 53a-103, resulting from his involvement in a motor vehicle break-in at the Noroton Heights train station. On October 6,1998, the defendant pleaded guilty to that charge under the Alford doctrine. The court sentenced the defendant to a suspended three year prison sentence and three years of probation. The defendant agreed to and understood that one of the conditions of his probation was that he could not violate any criminal law of the state of Connecticut.

On January 26, 1999, the defendant was arrested at the Greenwich train station after Officers Michael Reynolds and John Slusarz of the Greenwich police department responded to a reported larceny in progress. Both officers entered the train station parking area to investigate. While there, Reynolds noticed that the trunk of a Subaru was open. He stopped to investigate further and noticed broken glass on the ground near the car and that its back window had been broken. Reynolds then noticed the defendant sitting in the front seat of the vehicle and, with his weapon drawn, ordered the defendant out of the car. The defendant, apparently under the influence of an intoxicating substance, emerged from the vehicle and looked as if he was going to flee. Slusarz positioned himself behind the defendant while Reynolds stood in front of him. Before the officers could secure the defendant, a struggle ensued.

Once the officers had secured the defendant, they noticed that the inside of the Subaru had been rummaged with papers and other items littered throughout. Reynolds also noticed a rock in the backseat of the car, which the defendant apparently had used to break its window. A subsequent search of the defendant’s person revealed items that the car owner’s wife later identified as belonging to her husband.

Following the defendant’s arrest, the state charged him with burglary in the third degree in violation of § 53a-103, larceny in the fourth degree in violation of General Statutes § 53a-125, criminal mischief in the third degree in violation of General Statutes § 53a-117 and interfering with an officer in violation of General Statutes § 53a-167a. Thereafter, on June 17, 1999, the defendant was arrested and charged with violating his probation pursuant to General Statutes § 53a-32. The trial court revoked his probation and reinstated the original three year term of incarceration. Additional facts and procedural history will be provided as necessary.

The defendant claims that the court improperly determined that he had violated the terms of his probation. Specifically, the defendant claims that the court improperly found him in violation of his probation based on a crime with which he had never been charged and of which he had no notice and, therefore, the record contained insufficient evidence to establish a violation of probation. We are not persuaded.

We first note that “[t]o support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Citation omitted; internal quotation marks omitted.) State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).

We also note that the present case is governed by § 53a-32. “[U]nder§ 53a-32 a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge . . . and shall have the right to cross-examine witnesses and to present evidence in his own behalf. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

Moreover, “[o]n appeal, the standard of review of an order revoking probation is whether the trial court abused its discretion; if it appears that the trial court was reasonably satisfied that the terms of probation had been violated and, impliedly, that the beneficial purposes of probation were no longer being served, then the order must stand. ... In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court’s ruling. ... A defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden.” (Internal quotation marks omitted.) State v. Carey, 228 Conn. 487, 495, 636 A.2d 840 (1994).

The defendant has asked this court to review the trial court’s factual finding that he violated a condition of his probation, resulting in its revocation, and to hold that such a finding was improper on the basis of the record. We decline to so hold.

The record amply supports the court’s finding that the defendant violated the condition of his probation requiring him not to violate any criminal law of this state. As stated previously, the defendant was charged with violating his probation on the basis of various counts of criminal conduct arising from his arrest for breaking into a motor vehicle at the Greenwich train station. At the probation revocation hearing, the court heard testimony from, among others, Reynolds and Slusarz. Reynolds testified that he noticed that the trunk of the Subaru was open and that its window had been broken with a rock that still remained in the vehicle. He testified further that he noticed the defendant, apparently under the influence of an intoxicating substance, sitting in the front seat and that a struggle ensued before the defendant was secured. Once secured, a search revealed that the defendant was in possession of various items that belonged to the owner of the vehicle. Slusarz related similar testimony.

On the basis of the evidence adduced during the adversarial evidentiary component of the hearing, the court reasonably believed that it was more probable than not that the defendant had violated his probation. This is reflected in the court’s articulation of its decision. The court stated that “[t]he warrant affidavit, as well as the testimony at the violation of probation hearing, focused on only one basis: violation of any criminal law in this state” and that “the record evidence standing alone constituted a sufficient basis for the court to assess the findings of a violation of probation.” The court’s finding in this regard was not clearly erroneous. The record contains evidence to support such a finding, and we are not left with a definite and firm conviction that a mistake has been made.

Once the court determined that the defendant had violated his probation, it proceeded to the dispositional phase of the hearing, in which the court implicitly found that the beneficial purposes of the defendant’s probation were no longer being served and that it should be revoked. The court’s conclusion in this regard finds sufficient support in the record. The defendant was sentenced to a three year suspended sentence and three years of probation for the very same types of crimes that led to the present action. The court’s decision to revoke the defendant’s probation and to reinstate the original three year prison sentence was based on the defendant’s criminal history; see State v. Russell, 58 Conn. App. 275, 281, 752 A.2d 59 (2000); and a consideration of the whole record, and was an appropriate exercise of judicial discretion.

Because the court was reasonably satisfied that the terms of the defendant’s probation had been violated and, impliedly, that the beneficial purposes of his probation were no longer being served, the court’s order revoking such probation and reinstating the original sentence must stand. The defendant has failed to satisfy his heavy burden to prove otherwise. Accordingly, we find no abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant asserts additional claims. We need not address those claims, however, because our resolution of the question of whether the court properly found that the defendant violated his probation, thereby resulting in its revocation, is dispositive of this appeal.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The Alford doctrine allows a defendant to plead guilty without admitting guilt. In pleading guilty, however, the defendant “acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” Henry v. Commissioner of Correction, 60 Conn. App. 313, 315 n.l, 759 A.2d 118 (2000).

       The defendant concedes that the state properly informed him of the manner in which he was alleged to have violated his probation pursuant to § 53a-32, but argues that the court improperly based its judgment on a crime that the state did not allege to have been committed by the defendant.

       Reynolds further testified that another vehicle approximately 100 feet from the Subaru had been broken into in the same manner. That break-in, however, was not at issue in this case

       The defendant asserts that the court based its judgment on a finding that he violated a law with which he was not charged and of which he had no notice. That claim cannot prevail because the court did not base its decision on such a finding. In its articulation, the court noted that the defendant “admitted to using the motor vehicle without the owner’s permission.” That observation, though potentially misleading, was simply not the basis of the court’s judgment, nor could it have been. The court’s observation, coupled with its conclusion that the defendant’s claim that he entered the vehicle to escape the elements was not persuasive; see State v. Rodriguez, 68 Conn. App. 303,306 n.3, 791 A.2d 621 (2002) (weight to be given evidence and credibility of witness shall be for determination of trier of fact); induced the court to believe that it was more probable than not that the defendant committed burglary, larceny, criminal mischief and interference with an officer. Because we conclude as we do, the defendant’s claim that there was insufficient evidence to show that he used the vehicle without the owner’s permission is unavailing.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    HEATHER M. BROWN v. RIDGELY W. BROWN
    (AC 18979)
    Foti, Flynn and Daly, Js.
    Argued January 16
    officially released April 16, 2002

      Ridgely W. Brown, pro se, the appellant (defendant).

      Reuben S. Midler, for the appellee (plaintiff).
   Opinion

DALY, J.

This is an appeal from the denial of the application of the defendant, Ridgely W. Brown, for a temporary order restraining the plaintiff, Heather M. Brown, from relocating their children to a neighboring town and enrolling them in that town’s school system in contravention of the parties’ dissolution judgment. The defendant claims that the court improperly relied on Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), in denying his application. We conclude that the defendant’s claim is moot and, therefore, we do not have subject matter jurisdiction over this appeal. Accordingly, we dismiss the appeal.

The following facts are pertinent to the defendant’s appeal. The parties’ marriage was dissolved on May 19, 1997. Pursuant to an agreement of the parties that was incorporated into the dissolution decree, the court ordered joint custody of the parties’ four minor children and set out a visitation schedule. It was contemplated that the plaintiff would reside at 29 Brookside Road, Darien, next door to the former family residence at 25 Brookside Road, where the defendant would remain. In August, 1998, the plaintiff sold her Darien residence and moved to New Canaan, approximately 3.8 miles away. The plaintiff removed the children from the Darien school system and enrolled them in the New Canaan school system. The defendant filed an application for a temporary injunction to restrain the plaintiff from moving the children and withdrawing them from the Darien school system.

Following a hearing on the defendant’s application, the court found that the reason for the move was legitimate because one son is autistic and requires special education that is not available in Darien. He previously had been enrolled in a therapeutic day program at the Cooperative Education Services some twenty-five minutes away. One of the other children also is benefiting from the New Canaan special education program. The court found that all of the children have benefited from the move because the school is only two miles from their New Canaan residence.

In this appeal, the defendant concedes that it is in the best interests of the children to remain in the New Canaan school system. The defendant also indicated that he plans to move to New Canaan to be available for the children. The defendant asserts that this appeal is not moot, however, because he cannot permit the Ireland mode of analysis to be the law of the case in the event that there are further attempts at relocation.

“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) M.J. Daly & Sons, Inc. v. West Haven, 66 Conn. App. 41, 52, 783 A.2d 1138, cert. denied, 258 Conn. 944, 786 A.2d 430 (2001). “[E]ven if the factual issues to be determined lead to the conclusion that the appeal is moot because no practical relief is available, the appeal may nevertheless be heard under an exception that the issues on appeal are capable of repetition, yet evading review. See Loisel v. Rowe, 233 Conn. 370, 388, 660 A.2d 323 (1995). . . .

“Our cases reveal that for an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Citation omitted; internal quotation marks omitted.) In re Jeffrey C., 64 Conn. App. 55, 65, 779 A.2d 765, cert. granted on other grounds, 258 Conn. 924, 783 A.2d 1027 (2001).

Although the defendant claims that the court improperly applied the Ireland standard to this case, he agrees with the court that it is in the best interests of the children to remain in the New Canaan school system, and he plans to relocate to New Canaan to be available for the children. There was nothing in the judgment prohibiting the plaintiff from moving from Darien, and the defendant’s statement concerning his satisfaction with the New Canaan school system and his intention to relocate there in the future leads to the conclusion that the appeal is moot. We further determine that the issue before the court is not capable of repetition, yet evading review and, therefore, does not qualify for review under that exception to the mootness doctrine as enunciated in Loisel v. Rowe, supra, 233 Conn. 388.

The appeal is dismissed.

In this opinion the other judges concurred.

       At the outset, we acknowledge that “decisions either granting or denying temporary injunctions are not final judgments and are therefore not immediately appealable.” Doublewal Corp. v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985). In this case, the defendant’s application for a temporary injunction is more appropriately considered in the nature of a temporary custody request, as he sought to have the children live with him during the school week. Under the rationale of Madigan v. Madigan, 224 Conn. 749, 754-55, 620 A.2d 1276 (1993), therefore, the trial court’s ruling is an appeal-able final judgment.

       In his brief, the defendant also challenges the court’s order granting the plaintiffs application for relief from abuse. During the pendency of this appeal, the plaintiff filed a motion to dismiss the appeal. This court dismissed the portion of the appeal challenging the plaintiffs application for relief from abuse and, therefore, we do not address that issue.


text:
    STATE OF CONNECTICUT v. JAMES DOWNEY
    (AC 22016)
    Foti, Flynn and Daly, Js.

      Argued February 15
    officially released April 16, 2002

      David G. Toro, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Deborah Mabbett, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, James Downey, appeals from the judgment of conviction, rendered after a jury trial, of assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1), interfering with an officer in violation of General Statutes § 53a-167a and breach of the peace in violation of General Statutes § 53a-181. The defendant claims that (1) there was insufficient evidence to support his conviction of assault of public safety personnel and (2) the court improperly refused to admit a defense exhibit as a full exhibit. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 10, 2001, Officer Nate Stebbins of the East Hartford police department observed a station wagon perform a U-tum without using a signal on Main Street in East Hartford. Stebbins followed the vehicle for several blocks and initiated a motor vehicle stop. As Stebbins approached the vehicle to obtain the driver’s license and registration, he observed an adult male in the front passenger seat. As Stebbins spoke with the driver, he noticed the odor of alcohol emanating from inside of the car. Stebbins returned to his cruiser, whereupon Officer Danielle Baumgardner arrived at the scene to provide backup. After reviewing the vehicle’s registration, Baumgardner determined that the owner of the car was the defendant, a man whom she knew from a prior incident in which he had engaged her in a physical altercation. Baumgardner informed Stebbins that the defendant was aggressive and was known to carry weapons.

Both officers approached the car with Stebbins on the driver’s side and Baumgardner on the passenger side. As Stebbins questioned the driver, the defendant began to swear at the officers. The defendant opened the front passenger door and exited the vehicle despite repeated orders from Baumgardner to remain in the car. The defendant was ordered to place his hands on the car so that the officers could pat him down to determine if he was carrying a weapon. The defendant complied with the order, but persisted in cursing at both officers. As Baumgardner moved behind the defendant to assist Stebbins, the defendant kicked Baumgardner in the left shin, causing her to stagger backward in pain. She regained her balance and approached the defendant, who continued to resist Stebbins’ attempts to pat him down. The officers attempted to handcuff the defendant, but he would not let go of a luggage rack at the rear of his car. In the course of freeing his hands from the rack, the defendant and the two officers tumbled to the ground. While on the ground, the defendant continued to resist efforts to handcuff him, so Baumgardner sprayed him with “cap-stun,” an irritant designed temporarily to disable and distract a subject. The officers finally secured the defendant and took him into custody.

Following a jury trial, the defendant was found guilty of assaulting a peace officer, interfering with an officer and breach of the peace. This appeal followed.

I

The defendant first claims that there was insufficient evidence before the jury to permit it to find him guilty of assault of public safety personnel because Baumgardner suffered no physical injury as required by § 53a-167c (a) (1). We do not agree.

“In reviewing claims of insufficiency of the evidence, an appellate court employs a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 517-18, 765 A.2d 14, cert. granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001).

“To prove a violation of § 53a-167c (a) (1), the state must establish: (1) [Ijntent to prevent a reasonably identifiable peace officer from performing his duties; (2) the infliction of physical injury to the peace officer; and (3) the victim must be a peace officer.” (Internal quotation marks omitted.) State v. Casanova, 255 Conn. 581, 592, 767 A.2d 1189 (2001). In this case, the defendant challenges only the second prong, which requires the infliction of physical injury. The defendant claims that the brief episode of pain that Baumgardner experienced when the defendant kicked her does not satisfy the physical injury requirement as contemplated by the statute. Our decision in State v. Henderson, 37 Conn. App. 733, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995), is dispositive of this claim. In Henderson, during the course of an attempted robbery, the defendant pulled out a knife, grabbed the victim by the shirt and hit her. Id., 743. As a result of the defendant’s actions, the victim experienced pain in her chest. Id. This court held that the pain that the victim experienced satisfied the definition of physical injury in General Statutes § 53a-3 (3). State v. Henderson, supra, 743-44.

In this case, Baumgardner testified that when the defendant kicked her she felt pain in her leg and stumbled backward as a result of the blow. We conclude, therefore, that the jury reasonably could have found beyond a reasonable doubt that the defendant’s conduct caused pain and consequently physical injury to the officer.

II

The defendant next claims that the court improperly refused to admit the defendant’s medical records into evidence. We disagree.

During trial, the defendant sought to have an affidavit and three medical reports of his treating orthopedist, Grady Benson, admitted as full exhibits under the business records exception to the rule against hearsay. The defendant claimed that the reports tended to prove that he was physically incapable of kicking Baumgardner. The prosecutor objected on the basis of relevance, prejudice, hearsay and lack of foundation. The court sustained the prosecutor’s objection.

“As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the [admissibility] of evidence. The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 392, 788 A.2d 1221 (2002).

“General Statutes § 52-180 requires that evidence proffered under the business records exception to the hearsay rule satisfy three requirements: (1) that the record was made in the regular course of business; (2) that it was the regular corase of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. . . . The trial court is given discretion under General Statutes § 52-180 (a) to determine whether the criteria of the statute have been satisfied and, in reviewing the decision of the trial court to admit the evidence, an appellate court should construe the statute liberally.” (Citation omitted; internal quotation marks omitted.) State v. Hoffler, 55 Conn. App. 210, 215-16, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999); see also Conn. Code Evid. § 8-4; 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 89e, pp. 800-806.

First, the defendant sought to admit an affidavit executed by Benson’s record keeper, who represented in it that the medical reports met the business records exception to the rule against hearsay. The court found that the affidavit was not prepared in the regular course of business, but solely for the purpose of litigation and, therefore, was not admissible as a business record. Next, the court found that the three medical reports also did not qualify under the exception because the defendant failed to present any testimony that authenticated the reports as business records. Furthermore, the court found that they were not probative of the defendant’s condition on the date of the incident and that any probative value of the reports was outweighed by the danger of confusion of the issue and the potential to mislead the jury with the presentation of unexplained medical testimony.

On the basis of our review of the record, we conclude that the court did not abuse its discretion when it refused to admit the evidence under the business records exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of public safety . . . personnel when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . .”
      General Statutes § 53a-3 (3) provides: “ ‘Physical injury’ means impairment of physical condition or pain . . . .”

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a parly’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .”


author: FLYNN, J.

text:
    DOW AND CONDON, INC. v. MUROS NORTH LIMITED PARTNERSHIP
    (AC 21090)
    Mihalakos, Flynn and Daly, Js.
    Argued October 22, 2001
    officially released April 16, 2002

      Glenn T. Terk, for the appellant (plaintiff).

      Karl Fleischmann, for the appellee (defendant).
   Opinion

FLYNN, J.

This appeal arises from the trial court’s judgment for the defendant, rendered after a trial to the court, denying recovery of a sale commission sought by the plaintiff, a real estate brokerage corporation. On appeal, the plaintiff claims that the trial court improperly (1) determined that the plaintiff failed to comply with the statutory prerequisites to recovering a real estate commission, described in General Statutes (Rev. to 1997) § 20-325a, and (2) applied the common law of contracts. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed. Donald Mondani was a licensed real estate broker who worked for the plaintiff, Dow and Condon, Inc., in 1998. At that point, Mondani had cultivated a business relationship with Joseph Sullo, a real estate investor. Over the course of a decade, Mondani assisted Sullo in several real estate transactions.

In October, 1998, Sullo sought to purchase a building to house a restaurant supply business. Mondani and Sullo were “driving around looking for [suitable] buildings” in Hartford when they noticed the defendant’s property, located on 280-320 Murphy Road. Sullo was interested in the property and asked Mondani to “find out who owns it” and to “see what we can buy [it] for.” Mondani investigated the land records and discovered that the defendant, Muros North Limited Partnership, owned the property. Mondani contacted the sole general partner, Stephen Owens, and informed him that a buyer was interested in the property and asked if he was interested in selling. Owens responded that he “hadn’t thought about it” but would consider a proposal.

Mondani consulted with Sullo and obtained authorization to send a “letter of intent to purchase” the property at the price of $2.2 million. On Friday, October 30, 1998, Mondani faxed this document to Owens along with a document proposing an open listing agreement. A “listing agreement” is an employment contract for the services of a real estate broker. Revere Real Estate, Inc. v. Cerato, 186 Com. 74, 77, 438 A.2d 1202 (1982). The terms of the proposal included a commission rate of 4.5 percent, applied to the same $2.2 million price suggested in the letter of intent, i.e., a commission of $99,000. Mondani signed each of these documents, signing on Sullo’s behalf in the case of the intent to purchase.

On the facsimile of the listing that he received, Owens struck out the proposed price term, as well as the commission rate, and pemed in changes to $2.55 million and 2.5 percent, respectively. Owens made the same change to the price figure on the intent to pinchase document. Owens placed his initials next to each change and signed the documents. He faxed the documents to Mondani on the following Monday, November 2, 1998, three days after Mondani’s fax.

After receiving the documents, Mondani never initialed or signed the modified documents. At trial, Mondani testified that he “believed” he had a telephone conversation with Owens where he, Mondani, voiced his assent to the changes. Owens testified that no such oral assent ever took place and that, in fact, he and Mondani never even spoke to one another again after the initial telephone call when Mondani inquired as to whether Owens would consider selling the property. The trial court never found that the plaintiffs version of these events had occurred.

Sullo never agreed to purchase at the price indicated in Owens’ modifications. As Sullo testified at trial, Owens “was fixed on one price” and Sullo “wanted to pay another price.” Sullo decided to deal with Owens directly after Owens faxed the conflicting terms, in order to “see whether or not [he] could make the deal.” Sullo obtained Owens’ telephone number from Mondani and called Owens “within a few days” after the changes were faxed. In that conversation, Owens described the building to Sullo, including such details as “the condition of the building, its cash flow, [and] the rent roll . . . .’’In describing these details, Owens hoped to justify the higher price that he had proposed.

Roughly two weeks after talking to Sullo, on November 16, 1998, Owens faxed Mondani a letter. The letter began by recounting the previous fax transmissions, and continued: “During the weeks which followed, you have not agreed to, or even responded to, my counter-proposal, nor have you acted to represent [the defendant’s] interests. Accordingly, I hereby withdraw the proposal of 11/2/98 [the proposed listing agreement with the changed price and commission terms].”

Owens testified that during this two week period, he had not heard from Sullo either. Nonetheless, at some point after November 16, 1998, Sullo recontacted Owens. Ultimately, they consummated a sale at a new price: $2.25 million, a price which was $50,000 more than Sullo originally had offered but $300,000 less than Owens had set in his fax. Later, through Sullo, Mondani learned that the deal had been struck. Mondani then commenced this action, in which he sought to recover a commission of 2.5 percent, calculated on the basis of the price actually realized.

In an oral ruling from the bench, the trial court rendered judgment for the defendant on multiple alternative grounds. First, the court found that the plaintiff could not recover a real estate brokerage commission due to noncompliance with § 20-325a. Second, the court found that in any event, under contract principles, the plaintiff had failed to perform substantially according to the terms of the alleged contract. The plaintiff challenges both of these grounds on appeal.

The trial court found that the plaintiff failed to comply with § 20-325a and was therefore barred from recovering a real estate commission. Specifically, the court found that the contract was not “accepted in writing” by the plaintiff. The plaintiff maintains that the documents faxed by Owens to Mondani, with new proposed terms, satisfied § 20-325a.

It is the duty of the appellant to provide us with an adequate record to review its claims on appeal. Practice Book §§ 60-5, 61-10; cf. Spero v. Zoning Board of Appeals, 217 Conn. 435, 439 n.2, 586 A.2d 590 (1991); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60i, p. 387. We are not free, absent such a record, to make assumptions or to speculate about findings not made. State v. Combs, 51 Conn. App. 700, 701-702, 725 A.2d 349 (1999).

Next, we set forth the standard of review of the trial court’s judgment. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 118, 733 A.2d 817 (1999). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Premier Capital, Inc. v. Grossman, 68 Conn. App. 51, 59, 789 A.2d 565 (2002). The issue before us involves the inteipretation of § 20-325a. “Statutory interpretation is a matter of law over which this court’s review is plenary.” (Internal quotation marks omitted.) Berkley v. Gavin, 253 Conn. 761, 769, 756 A.2d 248 (2000). Furthermore, our Supreme Court has specifically stated that “[w]hether a particular listing agreement complies with § 20-325a (b) is a question of law.” New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 623, 569 A.2d 1098 (1990). In a plenary review of the trial court’s legal findings, “we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Torres v. Waterbury, supra, 118-19.

With these principles in mind, we turn to the question of whether the trial court properly determined that the plaintiff failed to comply with § 20-325a, barring recovery of a sale commission. “The right of a real estate broker to recover a commission is dependent upon whether the listing agreement meets the requirements of § 20-325a (b).” (Internal quotation marks omitted.) Rapin v. Nettleton, 50 Conn. App. 640, 647, 718 A.2d 509 (1998). Section 20-325a (b) conditions the recovery of a real estate sale commission on, inter alia, the existence of a “contract or authorization” for brokerage services that is “in writing” and “signed by the real estate broker or the real estate broker’s authorized agent . . . .” General Statutes (Rev. to 1997) § 20-325a (b) (1) and (5). For many years after its enactment, the provisions of § 20-325a (b) were “strictly construed and enforced.” (Internal quotation marks omitted.) New England Investment Properties, Inc. v. Spire Realty & Development Corp., 31 Conn. App. 682, 687, 626 A.2d 1316 (1993). Under this strict reading, a real estate broker who failed to comply with any of the provisions of § 20-325a did so “at his peril.” (Internal quotation marks omitted.) Levey Miller Maretz v. 595 Corporate Circle, 258 Conn. 121, 131, 780 A.2d 43 (2001).

In 1994, the legislature relaxed the standard of strict compliance with § 20-325a with respect to several of its provisions. While a written agreement is still strictly required, No. 94-240 of the 1994 Public Acts amended § 20-325a such that a real estate broker may recover a sales commission if the broker “has substantially complied with subdivisions (2) to (6), inclusive, of [§ 20-325a (b)] and it would be inequitable to deny recovery.” General Statutes (Rev. to 1997) § 20-325a (c). The requirement that the contract or authorization be signed by the broker or his authorized representative falls within subdivisions (2) to (6), requiring substantial rather than strict compliance.

In its oral ruling from the bench, the trial court stated that the contract was not “accepted in writing” and that therefore the plaintiff was barred from recovering a commission. The undisputed facts were that Owens had faxed the revised proposed listing agreement to Mondani, the broker, but that Mondani had never signed this written offer, nor did he return it so signed to Owens.

The plaintiff concedes that Mondani did not sign the revised proposed listing agreement. The plaintiff argues, however, that there was testimonial evidence from Mondani that he believed he had agreed orally on behalf of the plaintiff to the defendant’s terms, including the higher listing price and lower sale commission. The defendant denied that this oral agreement ever took place. In its brief, the plaintiff states: “If Mr. Mondani had initialed the document that was sent to him by Dr. Owens, this listing agreement would have strictly complied with all of the requirements of § 20-325a (b). The only deficiency is that Mr. Mondani did not initial the changes. Mr. Mondani testified that he did agree to the 2.5 [percent] commission and communicated this agreement to the defendant. . . . The situation presented in this case is exactly the type of situation that the legislature sought to address when it enacted Public Act 94-240.” (Emphasis added.)

The plaintiffs argument is that while it did not strictly comply with the statutory requirement that a listing agreement be signed, it substantially complied by agreeing orally to the defendant’s written listing terms.

The first difficulty with this argument is that it depends on the factual linchpin that the plaintiff did in fact agree orally to the terms of the listing agreement proposed by the defendant. Yet the plaintiff has not provided an adequate record to review this claim. The court made no finding that any oral acceptance by the plaintiff had occurred. The court’s decision was made orally. The record does not contain a written memorandum of decision setting forth the trial court’s findings, nor does it contain a signed transcript setting forth the same. The plaintiff filed no notice pursuant to Practice Book § 64-1 (b) stating that a signed transcript had not been filed. The plaintiff did not file a motion for articulation requesting the court to set forth its factual findings as to whether an oral agreement to Owens’ written terms had been reached, on which this specific claim of substantial compliance is dependent. In sum, the plaintiff has not provided us with an adequate record for review.

In any event, the trial court’s ruling that the plaintiff failed to comply with § 20-325a (b) is sustainable on independent grounds. “Substantial compliance” with § 20-325a (b) is inadequate if the plaintiff does not establish that it would “be inequitable to deny . . . recovery.” See General Statutes (Rev. to 1997) § 20-325a (c). The trial court specifically found that the plaintiff had failed to establish that it would be inequitable to deny recovery. “[E]quitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 114, 680 A.2d 1314 (1996). The determination of whether a particular set of circumstances was unjust is essentially a factual finding for the trial court. Paulsen v. Kronberg, 66 Conn. App. 876, 878, 786 A.2d 453 (2001). In the closely related context of unjust enrichment, our Supreme Court has held that “the trial court’s determination must stand unless it is clearly erroneous or involves an abuse of discretion. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).” Wendell Corp. Trustee v. Thurston, supra, 114.

Reviewing the entire record, we are not left with the impression that this ruling was clearly erroneous. Rather, a persuasive interpretation of the circumstances is that the broker, Mondani, chose not to follow his common practice of assenting to terms that were proposed in writing and signed by also signing the terms. The record discloses that Mondani was not pleased with the different sale commission terms proposed by Owens. Mondani’s own testimony reveals that any efforts to bring the deal to closure after Owens’ counterproposal, which had introduced terms less favorable to Mondani, were with Sullo, not Owens or any other representative of the defendant. Sullo’s testimony was that he obtained Owens’ telephone number to try to make the deal himself. We note that Owens and Mondani each proposed an open listing, as distinguished from an exclusive listing, where one listing agent enjoys the exclusive right to sell. “When, as in the case at bar, the agency is not an exclusive one, the broker’s efforts must be the predominating producing cause of the sale.” Marshall v. Sturgess & Jockmus, Inc., 150 Conn. 59, 62, 185 A.2d 472 (1962). In any event, the testimony as to what efforts Mondani made after Owens’ fax could have been entirely disbelieved by the trial court. Mondani’s efforts in finding someone interested in the property prior to the counterproposal were significant. However, a broker “ordinarily must prove that it has found a buyer that is ready, willing and able to purchase the property on terms agreed to by the seller.” (Internal quotation marks omitted.) Rapin v. Nettleton, supra, 50 Conn. App. 647; see also Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982). On the state of the record before us, the trial court’s determination that the plaintiff had not established the statutorily required inequity in denying recovery of a sale commission is not clearly erroneous or an abuse of discretion.

Because these conclusions are dispositive, we do not address the defendant’s remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Mondani was also a shareholder and officer in the corporation in 1998.

       The transcript of the court’s ruling reads:
      “There’s a case called Klein v. Chatfield, 166 Conn. 76, 347 A.2d 58 (1974), and in the middle of page seventy-eight, the Supreme Court says the trial court concluded that the document signed by the Chatfields was an offer, that an essential requirement of that offer was the delivery to them by the plaintiffs of an executed contract and a deposit of $3000, that until both steps were taken by the plaintiffs the parties were free to disengage from their tentative commitments, and they did disengage in that case, and the Supreme Court decided for the defendant.
      “You never got as far as I’m concerned a true contract because there was a counteroffer, and it was not accepted in writing, which the statute requires us to have, never mind the statute of frauds, which we haven’t talked about, but the common law alone says there’s no contract. The statute even with six and (c) in it or five and (c) in it does not do the job of substantial compliance.
      “Inequity, it’s possible the court could find an inequity, but I don’t have enough evidence before me to do that. It looks on its face like a bad result, but I can’t decide here today that it is inequitable.
      “The plaintiff did provide a buyer ready, willing and able, which is clear from the fact that they closed, but that doesn’t do the job for his contract. He has to have had a contract to do that and to be paid for it, and the same is true with Mr. Sullo. He didn’t agree on its face to the numbers that we have.
      “Could I see the exhibits, please?
      “Mr. Sullo, as far as I see, never agreed to a sale price of $2,550,000. That’s not what he bought it at. He bought it at $2,250,000. That was initialed by Mr. Owens. The two and a half percent change was initialed by him.
      “We don’t know whatever happened to the environmental compliance requirement. The only thing that’s written on there is to be negotiated; and if there’s anything in this world that isn’t clear, it’s what you’re going to negotiate an environmental protection requirement for.
      “In my view, an authorization means pretty much the same thing as a contract because it also must be in writing.

        “Therefore, the court will enter judgment for the defendant because the plaintiff has not sustained his burden of proof in this action. Thank you.”

       See footnote 2.

       Practice Book § 64-1 provides that a court may state its decision orally.

       Mondani stated that subsequent to the October 30, 1998 proposal, he received a document called a “rent roll,” which described the current tenants leasing the property from the defendant, the area they occupied and the amount of rent they paid. At trial, Mondani could not recall whether Sullo or Owens had furnished him with the rent roll. Mondani testified that he “talked to Joe Sullo about the tenants, about the property, [and] about market conditions” after Owens indicated the changes to the proposal.

       “[T]hree types of real estate listing agreements have traditionally been used in this state .... Those categories are: [1] the open listing, under which the property owner agrees to pay to the listing broker a commission if that broker effects the sale of the property but retains the right to sell the property himself as well as the right to procure the services of any other broker in the sale of the property; [2] the exclusive agency listing, which is for a time certain and authorizes only one broker to sell the property but permits the property owner to sell the property himself without incurring a commission . . . and [3] the exclusive right to sell listing, under which the sale of the property during the contract period, no matter by whom negotiated, obligates the property owner to pay a commission to the listing broker.” (Citations omitted.) Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 132, 425 A.2d 581 (1979).


author: LAVERY, C. J. FLYNN, J.,

text:
    RICHARD GRASSO v. ZONING BOARD OF APPEALS OF THE GROTON LONG POINT ASSOCIATION, INC., ET AL.
    (AC 20844)
    Lavery, C. J., and Dranginis and Flynn, Js.

      Argued October 22, 2001
    officially released April 16, 2002

      Timothy D. Bates, with whom, on the brief, was Lori N. Bartinik, for the appellant (plaintiff).

      Ralph J. Monaco, with whom were Jeffrey T. Londregan and, on the brief, Thomas J. Londregan, for the appellees (defendants).
   Opinion,

LAVERY, C. J.

The plaintiff, Richard Grasso, appeals from the judgment of the trial court denying his application for a writ of mandamus to compel the defendant zoning board of appeals of the Groton Long Point Association, Inc. (board), to hold a hearing on his appeal from the denial of his application for a zoning permit and for coastal site plan approval by the defendant W. Gordon Lange, the zoning enforcement officer. The plaintiff claims on appeal that the court improperly denied the application because (1) the board’s chairman, Gerard Carreira, usurped the authority of the board by dismissing the plaintiff’s appeal without consulting with and obtaining the vote of the other board members, (2) the board is statutorily required to hold a hearing and its denial thereof precluded the plaintiff from obtaining further judicial review, (3) the court misstated the “prior application rule” as to revised permit applications and site plans, and (4) even if the court applied the prior application rule correctly, it improperly found that new considerations had not intervened since the plaintiff filed his 1997 apphcation. We agree with the plaintiffs claims and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues on appeal. The plaintiff owns shoreline property in Groton Long Point. On April 7, 1990, he applied for and obtained a permit from the Groton Long Point zoning commission, approving his installation of a revetment to prevent his property from eroding. That revetment consisted of seventy-five feet of flat, buried stones and was located about twenty feet above the mean water line. Over the next seven years, much of the sand below the revetment eroded and the stones began to shift. The plaintiff contacted Ronald Kollmeyer, an oceanographic scientist, for advice on how to prevent further erosion of the property.

Kollmeyer recommended that a concrete support be erected just landward of the existing stone revetment to provide stabilization. On August 5, 1997, the plaintiff commenced building the recommended support. Apparently believing that an additional permit was unnecessary, the plaintiff did not seek one prior to beginning the project. Thereafter, zoning authorities issued a cease and desist order regarding the construction of the support.

On September 5, 1997, the plaintiff applied to the Groton Long Point Association zoning officer, Raymond S. Munn, for a permit to build the support (1997 application). The 1997 application included a site plan for the concrete support, an erosion and sedimentation control plan and a coastal site plan. Walter Kunzmann, an engineer, assisted the plaintiff in preparing the application. On April 9, 1998, Munn denied the 1997 application, citing a lack of compliance with specific statutory and regulatory provisions as the basis for the denial. The plaintiff appealed from the denial of the 1997 application to the board, which, after a hearing that concluded on August 3, 1998, upheld the denial for the same reasons cited by Munn.

The plaintiff, with the help of Kollmeyer and Kunzmann, prepared a new application to address the deficiencies cited for the denial of the 1997 application and submitted that application to the defendant zoning officer, Lange, on February 8, 1999 (1999 application). Lange denied the 1999 application in a May 6, 1999 letter to the plaintiff, in which he reasoned that the 1999 application proposed the same project as the 1997 application and cited additional reasons for the denial.

On May 18, 1999, the plaintiff appealed to the board from Lange’s denial of the 1999 application. On June 16, 1999, Carreira dismissed the appeal, informing the plaintiff by letter that “ [s]ince this is the same revetment in the same location that was considered by the [board] in hearings last year, we cannot entertain your request for an appeal to the [board].” Carreira did not call a hearing or consult the other members of the board before dismissing the plaintiffs appeal.

On July 13, 1999, the plaintiff applied to the Superior Court for a writ of mandamus to compel the board to hold a public hearing on his appeal from the denial of the 1999 application. After a trial, the court, in a May 5, 2000 memorandum of decision, denied the application, concluding that the prerequisites for the issuance of a writ were not present. Specifically, the court held that the plaintiff had failed to show that he had a clear legal right to a public hearing under the circumstances. This appeal followed. Additional facts will be provided as necessary.

We note at the outset the requirements for the issuance of a writ of mandamus. “Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). We review the court’s decision, therefore, to determine whether it abused its discretion in refusing to issue the writ.

I

The plaintiff claims first that the court improperly failed to find that Carreira usurped the authority of the board by dismissing his appeal without first consulting with and obtaining the vote of the other board members. We agree.

The functions and authority of a municipal officer are derived solely from constitutional, statutoRy or municipal provisions and must be expressly provided for or fairly implied. “When a general power is given to a municipal officer, whatever is necessary for effective exercise of that power is, in the absence of express authority, conferred by implication.” Hartford v. American Arbitration Assn., 174 Conn. 472, 479, 391 A.2d 137 (1978). Connecticut courts have “long been willing to imply to town officials those powers reasonably necessary to implement authority expressly delegated.” Id., 480. In defining the contours of a grant of authority, “[t]he intent of a statute [or ordinance] is to be determined from its language where the language is plain and unambiguous. The enactment, in such a case, speaks for itself and there is no occasion to construe it.” Carruthers v. Vumbacco, 4 Conn. App. 168, 171, 493 A.2d 259 (1985).

The applicable provisions here are clearly worded. Section 12.2 of the Groton Long Point Association zoning regulations provides that “[t]he Zoning Board of Appeals shall elect a Chairman from among its members and all meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine and shall be open to the public.” Section 12.3 provides that “[t]he Chairman, or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses.” These regulatory provisions mirror the language of the state statute enabling the creation of local zoning boards of appeal. See General Statutes § 8-5. Other than providing that he or she may designate alternate board members in the event of an absence; General Statutes § 8-5a; neither the statutes nor the Groton Long Point Association regulations explicitly grant any additional powers to the chairman of a zoning board of appeals.

The applicable provisions, therefore, explicitly confer only specific, narrowly defined powers on the chairman. Collectively, those powers may be characterized as those of oversight of the administrative mechanics of the board’s business—scheduling meetings, calling witnesses to attend and administering oaths. In no explicit terms is the chairman authorized to act on behalf of the board as to any substantive matter, such as the determination of the disposition of an appeal. The power to decide the issues that are the subject matter of hearings can in no way be implied from the power to oversee the procedural aspects of those hearings. This is particularly so when decision-making authority on appeals is specifically allocated to the board itself, and not its individual members, by both statute and regulation. General Statutes § 8-6; Groton Long Point Association Zoning Regs., § 12.6.

Our decisions support the notion that a board, in disposing of matters statutorily committed to it, must act as a whole. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.” (Emphasis added; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). In searching the record for evidence supporting a board’s decision to determine whether that decision can be sustained, we have noted that “[e]vidence of the individual views of one member [of the zoning board of appeals] is not available to show the reasons actuating the board or the grounds of its decision. These can only be shown by a vote of the board.” (Emphasis added; internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 238, 580 A.2d 528 (1990), rev’d on other grounds, 219 Conn. 352, 593 A.2d 118 (1991).

“It is a well-settled rule that when municipal councils or boards . . . are called upon to perform . . . acts involving discretion and judgment in administering the public affairs, they can only act at authorized meetings duly held. The [board] . . . must meet and act as a board .... The members cannot make a valid determination binding upon the [plaintiff] by their assent separately and individually expressed. . . . Wherever a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment of all the persons to whom has been intrusted the decision. . . . All the benefit, in short, which can flow from the mutual consultation, the experience and knowledge, the wisdom and judgment of each and all the members, is endangered by any other rule.” (Emphasis in original; internal quotation marks omitted.) S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, 33 Conn. App. 281, 287, 635 A.2d 835 (1993), quoting Jack v. Torrant, 136 Conn. 414, 420, 71 A.2d 705 (1950).

Because the applicable statutes and regulations do not confer on a chairman alone the power to determine the disposition of appeals, the court’s failure to conclude that Carreira exceeded his authority in deciding unilaterally to dismiss the plaintiffs appeal was improper.

II

The plaintiff also claims that the board is statutorily required to hold a hearing and that its failure to do so cut off his right to further judicial review of the denial of the 1999 application. We agree.

Our determination of whether the plaintiff has a right to a hearing on his appeal from the denial of the 1999 application requires us to construe the relevant statutory and regulatory provisions governing zoning boards and appeals. “The purpose of statutory construction is to give effect to the intended purpose of the legislature. ... If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995). Any ambiguity over whether a particular provision is mandatory or directory may be resolved by examining the statute’s language, its legislative history and the statutory context. Doe v. Statewide Grievance Committee, 41 Conn. App. 671, 676, 677 A.2d 960 (1996), rev’d on other grounds, 240 Conn. 671, 694 A.2d 1218 (1997).

General Statutes § 8-6 (a) provides in relevant part that “ [t]he zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .” (Emphasis added.) Sections 12.6 and 12.6.1 of the Groton Long Point Association zoning regulations mirror the statute, providing that the board “shall have the following powers and duties: To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the Zoning Official, Building Official, or any other official charged with the enforcement of these Regulations.” (Emphasis added.)

General Statutes § 8-7 provides in relevant part that “ [a]n appeal may be taken to the zoning board of appeals by any person aggrieved [by a decision of a zoning official] .... Such board shall, within the period of time permitted under section 8-7d, hear such appeal and give due notice thereof to the parties. . . .” (Emphasis added.) Pursuant to General Statutes § 8-8 (b), “any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. . . .” (Emphasis added.) The remaining portions of §§ 8-7 and 8-8, as well as § 8-7d, set forth specific and extensive procedural requirements for both hearings before boards and appeals before courts.

The legislature’s use of terms such as “shall” and “duty” strongly suggests that it intended that the board’s responsibility to hold a hearing be a mandatory one, as does the further legislative provision of detailed procedural, notice, timing and publication requirements for board hearings in §§8-7 to 8-7d. Although “our past decisions have indicated that the use of the word shall, though significant, does not invariably create a mandatory duty,” where “the prescribed mode of action is the essence of the thing to be accomplished” and “relates to a matter of substance [rather than] a matter of convenience,” it follows that the statutory provision is intended to be mandatory. (Internal quotation marks omitted.) State v. Trahan, 45 Conn. App. 722, 730-31, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997). Here, the stated purpose of § 8-6 is to enumerate the “powers and duties” of zoning boards of appeal, one of which is hearing and deciding appeals from decisions of zoning officials. In addition, the entirety of § 8-7 is devoted to establishing the required protocol for appeal hearings before boards; the holding of a proper hearing is the essence of what the statute seeks to accomplish. Furthermore, the provision of § 8-8 requiring a “decision” of a zoning board as a prerequisite to obtaining review of a zoning decision in the Superior Court presupposes that an aggrieved person will be able to obtain such a decision as a matter of right.

This interpretation finds support in our case law. In Palmieri v. Zoning Board of Appeals, 32 Conn. Sup. 625, 627, 349 A.2d 731 (1975), in deciding whether a writ of mandamus should issue, an appellate panel concluded that the board’s duty to hear an appeal from the ruling of a zoning officer was a mandatory one. The court noted that “[b]efore the plaintiff could avail himself of the right to appeal pursuant to the provisions of § 8-8 of the General Statutes, it was necessary that the [board] render a decision because only a decision is appealable. The [board] had a duty to hear the appeal, and a writ of mandamus is the proper action to compel the performance of such a duty.” Id.

Other decisions have referred to the mandatory nature of a hearing under § 8-7, though not directly so holding. For example, in Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 724 A.2d 1108 (1999), our Supreme Court noted that “a local zoning board of appeals reviewing the decision of a municipal zoning officer must hold an open hearing, in order to afford an opportunity to interested parties to make known their views and to enable the board to be guided by them.” (Emphasis added; internal quotation marks omitted.) Id., 739-40. Similarly, in outlining the procedure for appealing from a decision of a planning director to deny a site plan application, our Supreme Court has stated that “[i]t is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts.” (Emphasis added; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468, 778 A.2d 61 (2001); see also Dietzel v. Planning Commission, 60 Conn. App. 153, 162, 758 A.2d 906 (2000).

Finally, the notion that a property owner must obtain a decision from a zoning board of appeals prior to seeking review in the Superior Court is well established in our case law requiring the exhaustion of administrative remedies. See, e.g., Borden v. Planning & Zoning Commission, 58 Conn. App. 399, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000); Masayda v. Pedroncelli, 43 Conn. App. 443, 683 A.2d 23 (1996); Prospect Gardens Convalescent Home, Inc. v. Norwalk, 32 Conn. Sup. 214, 347 A.2d 637 (1975).

For the foregoing reasons, we conclude that the court incorrectly held that the defendants were not required to hold a hearing on the plaintiffs 1999 application.

III

Next, the plaintiff claims that the court misstated the “prior application rule” regarding revised applications for permits and site plans and, instead, applied the rule applicable to variances. We agree.

An exception or permit “is not to be confused with a variance. While the two words have often been treated as synonymous, they are readily distinguishable. . . . Under a provision usually found in municipal zoning regulations ... a variance may be granted only when the application of the law presents a practical difficulty or imposes an unnecessary hardship upon the property owner. An exception [or permit], however, is not . . . contingent upon the existence of either difficulty or hardship. In the case of a variance, a literal enforcement of the regulations is disregarded; [in contrast] the conditions permitting an exception [or permit] are found in the regulations themselves and, furthermore, those conditions may not be altered.” (Citations omitted.) Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 531-32, 102 A.2d 316 (1953); see also Groton Long Point Association Zoning Regs., §§ 7.1, 7.1.1.

“It is usually said that the essential difference between a variance and a special permit is that the variance permits the owner to develop and use the property in a manner forbidden by the zoning regulations, while the special permit authorizes those uses that are explicitly permitted in the regulations (albeit subject to certain conditions not applicable to other uses in the district).” (Emphasis in original.) T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 177, citing Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975); see also Mitchell Land, Co. v. Planning & Zoning Board of Appeals, supra, 140 Conn. 532-33; 83 Am. Jur. 2d 803-804, Zoning and Planning §§ 831, 960 (1992). Similar to a permit application, a site plan may be required by a zoning agency “to aid [it] in determining the conformity of a proposed building, use or structure with specific provisions of [the] regulations.” General Statutes § 8-3 (g). An application for site plan approval “may be modified or denied [by the agency] only if it fails to comply with requirements already set forth in the . . . regulations.” General Statutes § 8-3 (g); see also General Statutes § 22a-109 (establishing special criteria for coastal site plans). “Unlike a variance which involves the varying of a zoning ordinance, a special exception [or zoning permit or site plan] deals with compliance with the ordinance and imposes upon a board of zoning appeals the duty to grant an exception [or zoning permit or to approve a site plan] once the conditions specified in the ordinance have been met.” 83 Am. Jur. 2d, supra, 804.

The distinction between variances and permits is reflected in the differing circumstances under which a board of appeals may revisit an earlier decision as to each type of application. In considering a subsequent variance application where it has already denied a similar prior one, “[a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen.” Wright v. Zoning Board of Appeals, 174 Conn. 488, 492, 391 A.2d 146 (1978). The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, “there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence.” (Internal quotation marks omitted.) Sipperley v. Board of Appeals on Zoning, 140 Conn. 164, 167, 98 A.2d 907 (1953), overruled on other grounds, Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957).

“Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two situations mentioned above. An additional situation arises when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one. ... To justify a special exception [or permit] ... it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first. ” (Citations omitted.) Mitchell Land Co. v. Planning & Zoning Board of Appeals, supra, 140 Conn. 534; see also Shippee v. Zoning Board of Appeals, 39 Conn. Sup. 436, 438, 466 A.2d 328 (1983); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 22.12, p. 502.

“A subsequent [permit] application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect.” (Internal quotation marks omitted.) Koepke v. Zoning Board of Appeals, 230 Conn. 452, 458, 645 A.2d 983 (1994). “The board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied . . . .” Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 (1968).

“The same concept would apply to a . . . site plan application, where . . . the property owner is basically engaged in an exercise to present an application which conforms with the . . . existing regulations. ... A site plan is only required to comply with the specific requirements of the existing zoning regulations. The fact that a prior site plan did not comply does not allow the zoning commission to turn down one which does.” R. Fuller, supra, p. 503.

In this case, the court in its memorandum of decision did not recognize the distinction between prior applications for variances and those for permits and site plans. It relied largely on cases involving variances and not those involving permits or special exceptions, and cited and applied only the narrower rule regarding similar prior variance applications.

The court focused on protecting the board from “harassment” and did not acknowledge that the plaintiff had a right to revise his application so as to bring the proposed construction into compliance with the applicable regulations. It noted that the plaintiff, in the 1999 application, had “developed his case in more detail” and outlined the differences between the applications, but concluded that, because the details comprised information known to the plaintiff in 1997 that could have been included in the 1997 application, “there were no new conditions or considerations” that would allow the board to revisit the matter. As previously explained, a proper inquiry would have addressed the question of whether the additional details included in the 1999 application corrected the deficiencies cited by the board for the denial of the 1997 application, so as to bring the proposed work into compliance with the applicable regulations. In the context of a permit application, it is of no consequence that the information was previously available to the plaintiff. We therefore conclude that the court’s analysis in this regard was incorrect in law.

IV

The plaintiffs last claim is that even if the court stated the prior application rule correctly, it applied it improperly when it found that new considerations had not intervened since the plaintiff filed the 1997 application. The defendants argue, in this regard, that the court’s de novo determination that there were no changed conditions or intervening considerations was correct and, further, that it cured the board’s failure to hold a hearing on the matter. Because we have determined that the court applied the incorrect standard in evaluating whether the board could have approved the 1999 application, we conclude that the court’s determination was necessarily flawed and could not have cured the board’s failure to hold a hearing to consider whether the objections to the 1997 application were answered by the provision of additional information in the 1999 application such that the zoning official’s denial of the latter was improper.

Our resolution of the foregoing issues leads us to conclude that the court abused its discretion in denying the plaintiffs application for a writ of mandamus compelling the defendants to hold a hearing on his appeal from the denial of the 1999 application. As explained in parts I and II of this opinion, Carreira, as chairman, lacked the power to make a determination on the plaintiffs appeal himself; rather, the board had a mandatory statutory duty to hold a hearing on the appeal and to determine, as a board, what the disposition should be. Although a board may exercise some discretion in determining whether a revised permit application complies with the applicable regulations, it lacks the discretion to refuse to make that determination at all when an applicant brings a proper appeal from a zoning official’s decision. The plaintiff has no other alternative for contesting the official’s decision because, before he may exercise his statutory right to appeal from that decision to a trial court, he must first exhaust the administrative remedy of an appeal to the board.

The plaintiff has established that (1) the law imposes a mandatory duty on the board to hear his appeal, (2) he has a clear legal right to a hearing and (3) there is no other specific adequate remedy available to contest the zoning officer’s decision, and he has therefore met the requirements for a writ of mandamus compelling the board to act. See Miles v. Foley, supra, 253 Conn. 391.

“The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal light to have it performed, and where there is no other adequate legal remedy.” (Internal quotation marks omitted.) Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975). “If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act.” (Internal quotation marks omitted.) State ex rel. Brooks v. Hitchcock, 33 Conn. Sup. 686, 690, 367 A.2d 692 (1976).

The judgment is reversed and the case is remanded with direction to render judgment issuing a writ of mandamus compelling the defendants to hold a hearing to consider the plaintiffs revised application for a zoning permit and coastal site plan.

In this opinion DRANGINIS, J., concurred.

FLYNN, J.,

concurring in part and dissenting in part.

While I agree with the majority that the chairman of the zoning board of appeals could not act on behalf of the entire board in deciding that no hearing should be held on the plaintiffs appeal to the board from the denial of a zoning permit and coastal site plan, I do not agree that the plaintiff has shown a clear legal right to a hearing which is the sine qua non before a writ of mandamus will issue ordering a hearing to be held. Mandamus is an extraordinary equitable remedy. The plaintiff finds himself subject to a cease and desist order because he went ahead and built a concrete seawall without a permit, despite the knowledge that such a permit was required when he built an earlier stone revetment. I would go no further than to remand with a rescript that mandamus issue ordering the entire board to act on the plaintiffs appeal. I would leave to the board, in the first instance, as the administrative body charged with that function, the determination of whether the essence of the renewed proposal to obtain approval nunc pro tunc of the existing concrete wall is so similar in nature to the prior applications that no further hearing is necessary. That is an administrative decision, which the board as fully constituted has not yet made, but has the right to determine before the matter is ripe for courts to intervene or review.

       The plaintiff testified that he believed that the area where the revetment was constructed had been declared “unzoned.”

       Specifically, Munn explained that: “(1) the coastal site plan was found by [the department of environmental protection] to be inconsistent with the [Connecticut Coastal Management Act], and it was found by the zoning commission to fail to identify and consider at least coastal resource policies (A), (C), and a significant portion of (F) under [General Statutes §] 22a-92 (b) (2) and fail to identify and consider the adverse impacts (B), (C), (F), and (H) under [General Statutes §] 22a-93 (15), and thus the plan was denied by the commission; (2) the soil erosion and sediment control plan was found to be deficient in that it could not control or account for the location of a large portion of the soil or sand excavated for the installation of the concrete structure, while [the plaintiffs] presentation admitted that some of the sand was washed away by waves, and thus the plan was denied and not certified by the commission; and (3) the proposed work (some of which is already completed) does not comply with the [Groton Long Point] zoning regulations 3.1, 3.13.1, 3.13.2 (e), 3.15, 3.26, 7.1, 7.6, 10.3.3, 10.4.1 (4), 10.4.3.1 (2), 10.4.3.3 (1), and 11.1.”

       Lange succeeded to Munn’s position in the interim between the plaintiffs applications.

       Lange cited noncompliance with the permit requirements of General Statutes § 22a-361 and of the department of environmental protection. He further stated that it would be “inappropriate” to hold further hearings or otherwise act on the application because the cease and desist order issued in response to the proposed construction was the subject of “ongoing litigation.”

       The defendants’ characterization of Carreira’s decision to dismiss the plaintiffs appeal as a “procedural determination,” akin to establishing whether the requisite filing fee is attached to an application, is disingenuous and wholly unconvincing. As more fully explained in part II of this opinion, Carreira’s decision necessarily precluded any further review of the plaintiffs application before either the board or the Superior Court, types of review that the plaintiff is statutorily entitled to seek.

       The defendants argue, and the court held, that the plaintiff was not entitled to a hearing before the board because the 1999 application was substantially the same as the 1997 application. As more fully discussed in part III of this opinion, it is true that as to the same application, “[a]s a general rule, an administrative tribunal, such as a zoning board of appeals, is not permitted to reverse itself unless a change of circumstances intervenes which materially affects the merits of the case.” Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 (1968). “The board can grant a second application [for an exception orpermit] which has been substantially changed in such a manner as to obviate the objections raised against the original application”; (emphasis added) id.; however, it does not follow that the rule against reversal excuses a board from holding a hearing to determine whether the applications are, in fact, identical or rather, whether the later application responds adequately to the reasons raised by the zoning official in denying the earlier application. See part III of this opinion. A board does have discretion to decide whether two applications request substantially the same relief. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). Nonetheless, a writ of mandamus may issue to compel municipal officials to perform a mandatory duty, even if that duty can be performed in a discretionary manner. Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 718-19, 427 A.2d 866 (1980).

       Groton Long Point Association Zoning Regulation 7.1.1, titled “Procedure for Obtaining a Zoning Permit and/or a Building Permit,” provides in relevant part: “The procedure for obtaining a permit for proposed construction is dependent upon construction category, as follows . . . b. Category II . . . construction of accessory buildings, fences, walls, or docks . . . Procedure ... (1) applicant submits a completed Application for Zoning Permit to the Zoning Official; (2) the Zoning Official approves the permit, if all Zoning Regulations are complied with-, (3) if approved, the applicant then applies for a Building Permit with the Building Official; (4) if the Zoning Permit is denied, the applicant may either revise and resubmit the application or appeal to the Zoning Board of Appeals for a variance. . . .” (Emphasis added.)

       The terms “special exception” and “special permit” are interchangeable. Anastasi v. Zoning Commission, 163 Conn. 187, 190, 302 A.2d 258 (1972). We recognize that this case involves a zoning permit rather than a special permit. The two are similar, however, as to the salient feature, i.e., both are contemplated by the regulations, and the conditions for granting them may be found therein.

       Groton Long Point Association Zoning Regulation 7.1, titled “Building Permits and Zoning Permits,” provides in relevant part: “No construction, reconstruction, replacement, alteration or other work . . . shall be done on any lot, including but not limited to buildings, walls, fences or docks, until a permit has been duly issued. No zoning permit . . . shall be issued . . . unless the plans and intended use are such that [the construction] 'will conform, in all respects with the provisions of these Regulations . . . .” (Emphasis added.)

       See footnote 7.

       Groton Long Point Association Zoning Regulation 3.26 requires, under certain circumstances, the submission of “a soil erosion and sedimentation control plan” as a “prerequisite to issuance of a Zoning Permit for proposed development.” Groton Long Point Association Zoning Regulation 11.1 subjects all “structures fully or partially within the coastal boundary” to statutory “coastal site plan review requirements and procedures . . . .” See General Statutes § 22a-109. In this case, the plaintiff submitted both a soil erosion and sedimentation control plan and a coastal site plan along with his applications for a zoning permit. In reviewing the denial of the 1997 application, the board found that both plans and the permit application did not comply with the applicable statutory or regulatory provisions.

       See footnote 6.

       “[T]he authority of a zoning board of appeals to grant a variance under General Statutes § 8-6 (3) requires the fulfillment of two conditions: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988).

       General Statutes § 8-6 (a) (3), which empowers a zoning board of appeals to grant variances, provides in relevant part: “No suchboard shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.” We note that § 8-6 (a) (1), which empowers boards to hear appeals from zoning officials’ decisions, such as the denial of permit applications, does not contain a similar grant of discretion.

       See, e.g., Grillo v. Zoning Board of Appeals, supra, 206 Conn. 362; Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91, 207 A.2d 375 (1965); Bright v. Zoning Board of Appeals, 149 Conn. 698, 705, 183 A.2d 603 (1962); Fiorilla, v. Zoning Board of Appeals, supra, 144 Conn. 278-79; Sipperley v. Board of Appeals on Zoning, supra, 140 Conn. 164; St. Patrick’s Church Corp. v. Daniels, 113 Conn. 132, 137, 154 A. 343 (1931).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. LUCIS RICHARDSON
    (AC 20700)
    Dranginis, Flynn and Bishop, Js.
    Argued February 28
    officially released April 16, 2002

      Margaret P. Levy, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from the judgment of the trial court denying his motion to dismiss the information against him based on principles of double jeopardy and collateral estoppel. As noted in the court’s comprehensive memorandum of decision, the question of whether a defendant may properly be retried for felony murder after a mistrial due to a deadlocked jury on the felony murder charge, but a conviction of a predicate offense, was answered in the affirmative by our Supreme Court in State v. James, 247 Conn. 662, 674, 725 A.2d 316 (1999). The defendant’s unbriefed claim, raised for the first time in oral argument, that James should not be applied retroactively is unavailing and facially frivolous.

The judgment is affirmed.