author: LANDAU, J. SCBLALLER, J.,

text:
    DENIS PIERI v. CITY OF BRISTOL
    (14232)
    Argued February 14
    officially released October 15, 1996

      Alfred F. Morrocco, Jr., with whom, on the brief, was Thomas Conlin, for the appellant (plaintiff).

      Matthew E. Karanian, for the appellee (defendant).
   LANDAU, J.

The plaintiff, Denis Pieri, appeals from the judgment, rendered after a jury trial, in favor of the city of Bristol. In his complaint, the plaintiff alleged that he was appointed to the position of fire marshal in January, 1982, and, for approximately eleven years, the city failed to compensate him. On appeal, the plaintiff claims that the trial court improperly (1) refused to allow a plaintiffs witness to testify to establish the city’s intent to enter into an implied contract with the plaintiff and (2) instructed the jury as to the statute of limitations governing the plaintiffs claim. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The plaintiff became a firefighter for the city of Bristol in 1972. On January 4, 1982, the plaintiff was appointed to the positions of fire marshal and fire prevention officer. At the time of his appointment, the plaintiff was paid an annual salary of $20,161. The position of fire prevention officer is a designated union position pursuant to the labor contract between Local 773 of the International Association of Firefighters and the city. The position of fire marshal is not included in the labor contract.

In October, 1988, the plaintiff engaged attorney Stephen Duffy, a former city councilman, to represent him in his efforts to assert a claim for remuneration against the city. In separate demand letters received by the city personnel director and the city fire chief, the plaintiff sought remuneration from the city for his services as fire marshal. The letters indicated that, as fire prevention officer and fire marshal, the plaintiff believed he held two separate and distinct positions within the fire department and that any compensation he had received was “strictly for his work under the title of fire prevention officer.” In August, 1992, the plaintiff reiterated his demand for remuneration in follow-up letters to the personnel director, the fire chief and the mayor.

Following the city’s refusal to provide additional compensation, the plaintiff brought this action sounding in breach of implied contract seeking, inter alia, back pay for the entire time he served as fire marshal. In its answer to the complaint, the city denied the plaintiffs allegations and asserted two “special defenses”: (1) that the plaintiffs claims were barred by the applicable statute of limitations pursuant to General Statutes § 52-596, and (2) that the plaintiff received payment for all work performed. The jury returned a general verdict in favor of the defendant and neither party filed interrogatories seeking the jury’s answers to specitlc questions addressed to the pleadings. The plaintiff did not file any motions addressed to the verdict.

I

In his first claim, the plaintiff contends that the trial court improperly precluded Duffy from testifying. The plaintiff argues that Duffy, who was a city councilman at the time the plaintiff was appointed as fire marshal, would have established that the city intended to provide separate compensation to the plaintiff in his capacity as fire marshal in addition to the salary he received as fire prevention officer. The plaintiff asserts that Duffy’s testimony was crucial to his claim because it would have enabled the jury to make an “informed decision” of whether the city entered into an implied contract with the plaintiff.

Following an offer of proof, the trial court found that Duffy’s testimony would merely establish that the plaintiff had attempted to negotiate a settlement with the city regarding his claim for compensation. The court further found that, although Duffy was present at the council meeting in which the plaintiff was sworn in and voted to approve the plaintiffs appointment, his testimony was not probative of the city’s intent regarding the plaintiffs compensation. For that reason, and because the plaintiffs demand letters were already in evidence, the court ruled that Duffy’s testimony would be irrelevant and cumulative.

When we review a trial court’s rulings concerning the admissibility of evidence, we will set aside such rulings only upon a showing of a clear abuse of discretion. Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Coble v. Maloney, 34 Conn. App. 655, 661, 643 A.2d 277 (1994); In re Bassel C., 33 Conn. App. 90, 95, 633 A.2d 733 (1993). We note that, notwithstanding the plaintiffs failure to file a motion to set aside the verdict, our standard of review is plenary. In Santopietro v. New Haven, 239 Conn. 207, 211-21, 682 A.2d 106 (1996), our Supreme Court concluded that properly preserved claims of error need not be presented a second time in a motion to set aside the verdict to be afforded plenary review. We therefore afford the plaintiffs claim plenary review.

Our review of the record reveals that the trial court did not abuse its discretion. In the offer of proof, Duffy was questioned thoroughly by the plaintiffs counsel, by counsel for the city, and by the trial court. The sum and substance of Duffy’s testimony would have been that he was a councilman at the time the plaintiff was appointed to the position of fire marshal, he was present at the council meeting when the plaintiff was sworn in, he voted to approve the appointment, and that the budgeted salary for the fire marshal position was $20,161. Duffy’s testimony was devoid of any information that would have enabled the jury to draw an inference regarding the city’s intent. Thus, we conclude that the trial court properly excluded Duffy’s testimony.

We are convinced that the trial court properly exercised its discretion in ruling to preclude Duffy’s testimony.

II

In his second claim, the plaintiff asserts that the trial court improperly instructed the jury that the appropriate statute of limitations in this case was two years pursuant to General Statutes § 52-596. Because we conclude that the general verdict rule operates in this case, we do not reach the merits of the plaintiffs claim.

“The general verdict rule provides that, where a jury returns a general verdict in favor of a party, and no party submits special interrogatories, an appellate court properly presumes that the jury found in favor of the prevailing party on every issue. . . . The rule applies whenever a verdict for one party could reasonably be rendered on one or more . . . distinct defenses.” (Citations omitted; internal quotation marks omitted.) O’Brikis v. Supermarkets General Corp., 34 Conn. App. 148, 151, 640 A.2d 165 (1994).

“In Curry v. Burns, [225 Conn. 782, 801, 626 A.2d 719 (1993)], our Supreme Court limited the application of the general verdict rule to five categories: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense . . . (4) denial of a complain t and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Emphasis in original; internal quotation marks omitted.) O’Brikis v. Supermarkets General Corp., supra, 34 Conn. App. 151-52.

This case falls within the fourth category, the denial of a complaint and pleading of a special defense. In its answer, the city denied the plaintiffs allegations and asserted two “special defenses,” which were subsequently denied by the plaintiff. The first special defense asserted that the plaintiffs claims are barred by the two year statute of limitations pursuant to § 52-596. The second special defense asserted that the plaintiff has “received payment for all work performed.”

In Curry, however, our Supreme Court noted that the general verdict rule should not be applied in cases where various grounds of defense are admissible as mere denials of the complaint. Curry v. Burns, supra, 225 Conn. 799. Thus, as a threshold issue, although the defendant’s answer labeled its defenses “special defenses,” we must determine whether the defenses constitute mere denials or whether they allege facts that would show that the plaintiff has no cause of action. See Practice Book § 164. “[I]t is the distinctiveness of the defenses raised, and not the form of the pleading that is the decisive test governing the applicability of the general verdict rule.” Curry v. Burns, supra, 787-88.

With regard to the second special defense, the record reveals that, notwithstanding the number of positions and titles the plaintiff claims to have held, it was the city’s position that he was fully compensated for all services rendered to the city. Had the city not set up the special defense stating that the plaintiff received payment for all work performed, at trial the city would have been precluded from introducing evidence tending to prove that, although the plaintiff performed the duties of the fire marshal and the fire prevention officer, he was entitled to only one salary, which he received. “ ‘The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 164.’ ” Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 445, 671 A.2d 1303 (1996). Having failed to allege such facts, the defendant would have been precluded from proving them at the time of trial. “A defendant’s failure to plead a special defense precludes the admission of evidence on the subject. DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971).” Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 436, 651 A.2d 281 (1994). We conclude, therefore, that the defense of payment was a special defense within the meaning of § 164, and that this case falls within the fourth category of Curry—the denial of a complaint and the pleading of a special defense.

In this case, the jury could have reached its general verdict in favor of the defendant on the ground either that the plaintiff failed to prove his prima facie case, or that the defendant proved its special defense of payment. In any event, because neither party filed interrogatories, we must presume that the jury found every issue in favor of the defendant. Accordingly, we hold that the general verdict rule precludes us from reviewing the plaintiffs challenge to the trial court’s juiy instructions concerning the statute of limitations where it is impossible to tell whether the jury’s verdict was based on a finding of an absence of proof as to the plaintiffs complaint, or on a finding of payment on the part of the defendant. See O’Brikis v. Supermarkets General Corp., supra, 34 Conn. App. 153.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

SCBLALLER, J.,

concurring. Although I concur with the result reached by the majority, I respectfully disagree with the analysis in part II of the opinion.

In part II, the majority holds that the general verdict rule precludes this court from reviewing the plaintiffs challenge to the trial court’s instruction concerning the applicable statute of limitations. Before concluding that the general verdict rule applies, the majority appropriately first discusses whether the city’s special defense operates as a mere denial or whether it is a special defense within the meaning of Practice Book § 164. I disagree with the majority’s conclusion that the city’s second special defense of payment is a special defense under Practice Book § 164.

In reaching its decision regarding the city’s second special defense, the majority determines the basis of the city’s position to be that the plaintiff was paid one salary for his duties both as fire marshal and as fire prevention officer. If the majority is correct in making such a determination, payment would, in fact, be a proper special defense, the purpose of which “ ‘is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 164.’ ” Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 445, 671 A.2d 1303 (1996). In my view, however, the basis of the city’s defense is not that the plaintiff was compensated for both positions, but, rather, that there never were two distinct positions for which payment was intended and that the titles of fire marshal and fire prevention officer were simply interchangeable terms used to refer to the same position. Such a defense is inconsistent with the allegations of the plaintiffs complaint and, therefore, operates as a mere denial, not a special defense. Since the general verdict rule should not be applied where various grounds of defense are admissible as mere denials of the complaint; Curry v. Burns, 225 Conn. 782, 787-88, 801, 626 A.2d 719 (1993); I do not believe that the general verdict rule applies to this case. Consequently, I would reach the plaintiffs claim concerning the applicable statute of limitations.

The resolution of this appeal, however, does not require a review of the merits of that claim. Even if we assume, arguendo, that the trial court applied and instructed the jury on the wrong statute of limitations, any such error, which simply would have reduced the period of time for which the plaintiff could recover payment, would be rendered harmless by virtue of the verdict in favor of the defendant.

Accordingly, I concur in the result.

       The basis of the plaintiffs complaint was that he held and performed the duties of two distinct positions, but was paid for only one. The city’s position was that the plaintiff held only one position with two titles.

       General Statutes § 52-596 provides in pertinent part: “No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues . . . .”

       The basis of the plaintiffs claim is that, because the position of fire marshal is administrative and professional in nature, he is an “exempt employee" within the meaning of §§ 31-60-15 and 31-60-16 of the Regulations of Connecticut State Agencies. The plaintiff argues that, as an exempt employee, his claim is not governed by the two year statute of limitations as the court charged; rather the applicable statute of limitations governing this implied contract action was six years pursuant to General Statutes § 52-576.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STANLEY MASAYDA ET AL. v. RONALD PEDRONCELLI ET AL.
    (14915)
    Dupont, C. X, and Foti and Spear, Js.
    Submitted on briefs September 30
    officially released October 22, 1996

      Robert L. Fisher and Eric A. Russman filed a brief for the appellants (defendants).

      Thomas P. Byrne filed a brief for the appellees (plaintiffs).
   PER CURIAM.

The defendants appeal from the judgment of the trial court granting the plaintiffs’ request for a permanent injunction to enjoin the defendants from operating a trucking business and rebuilding a barn on their property in Watertown. The judgment also included an award of costs, including reasonable attorney’s fees, and a civil penalty in the amount of $100 per day for a violation of a cease and desist order.

The following facts are relevant to this appeal. The plaintiffs are Stanley Masayda, the planning and zoning officer of the town of Watertown, and Mary Greene, the assistant planning and zoning officer of Watertown. The defendants, Ronald Pedroncelli and his wife, Jeanne Pedroncelli, purchased a 2.4 acre parcel of land in Watertown in 1993 and operated a trucking business at that location. The defendants also began to rebuild a barn that was situated on the parcel.

After conducting a site visit on October 29, 1993, Greene, on November 16, 1993, served the defendants with an order to cease and desist both the operation of their trucking business and the rebuilding of the bam. Although the land is zoned restricted industrial IR 80, the order alleged that the defendants’ operation of the trucking business violated § 2.1 of the Watertown zoning regulations, which forbids a change in the use of land or buildings until a certificate of zoning compliance is issued by the zoning enforcement officer. The defendants had not applied for a certificate of zoning compliance. Greene identified herself in the cease and desist order as the “Assistant Planning and Zoning Officer.”

It is undisputed that the defendants did not appeal the decision of Greene to the zoning board of appeals in accordance with General Statutes § 8-6 (a) (l). Rather, after the plaintiffs filed a complaint seeking the permanent injunction, civil penalties and attorney’s fees, the defendants claimed in the trial court that Greene was without authority to issue the cease and desist order. The trial court determined that the defendants should have challenged the validity of the cease and desist order before the zoning board of appeals pursuant to the provisions of § 8-6 (a) (1). It concluded that the defendants were not permitted to contest the validity of the order in an action where the zoning officials sought its enforcement.

On appeal, the defendants claim that the trial court improperly determined that (1) Greene was a de facto planning and zoning officer, and (2) they could not contest the validity of the cease and desist order because they failed to exhaust their administrative remedies. We disagree and affirm the judgment of the trial court.

The defendants’ second claim is dispositive of this appeal. The defendants assert that the trial court is the only forum in which they could raise the issue of whether Greene had authority to issue the cease and desist order. Their reasoning is based on the discrepancy between the language of the Watertown regulations and Greene’s title. The defendants argue that § 71.2.1 of the regulations provides that the board of appeals hears and decides appeals where it is alleged that there is an error in any order, requirement or decision made by the zoning enforcement officer. In addition, § 72.1 of the regulations provides that a “Deputy Zoning Enforcement Officer” may act for the zoning enforcement officer. Greene, however, in the cease and desist order, identified herself as the “Assistant Planning and Zoning Officer.” Also, the order provided that it was issued by the “Planning and Zoning Office.” The defendants reason, therefore, that because Greene’s title did not identify her as a “deputy zoning enforcement officer” and the words “zoning enforcement” did not appear anywhere on the order, Greene was without legal authority to issue the order and, consequently, the board of appeals had no jurisdiction to hear an appeal of the order.

“It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief . . . .” (Citations omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 503-504, 661 A.2d 1018 (1995); see Loulis v. Parrott, 42 Conn. App. 272, 278-79, 679 A.2d 967 (1996). Section 8-6 (a) (1) provides that zoning boards of appeal shall have the power 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 . . . any . . . regulation adopted under the provisions of this chapter . . . .” Section 71.2.1 of the regulations provides that the board of appeals hears appeals “where it is alleged that there is an error in any order, requirement or decision made by the Zoning Enforcement Officer.” When a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not contest the validity of the order if zoning officials seek its enforcement in the trial court after the alleged violator has failed to appeal. Gelinas v. West Hartford, 225 Conn. 575, 595, 626 A.2d 259 (1993). This does not end our inquiry, however, because “ ‘[e]ven in an action brought by a zoning enforcement officer to require conformity with the zoning regulations, the granting of injunctive relief, which must be compatible with the equities of the case, rests within the trial court’s sound discretion. . . . Those equities should take into account the gravity and wilfulness of the violation, as well as potential harm to the defendants. . . (Citations omitted.) Id., 595-96, quoting Johnson v. Murzyn, 1 Conn. App. 176, 183, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984); see also Dept. of Transportation v. Pacitti, 43 Conn. App. 52, 57-58, 684 A.2d 707 (1996).

In determining whether the trial court abused its discretion in balancing the equities in this case, we take note of the following. As the defendant Ronald Pedroncelli testified, and as the trial court concluded, the defendants failed to respond to the order issued by the planning and zoning office. In addition, the record reveals that Greene testified that, prior to the issuance of the order, the defendants ignored several entreaties by Greene to apply for site plan approval. The defendants did not dispute this testimony. Finally, Ronald Pedroncelli testified that he had spoken to Greene when, shortly after acquiring the property, he had gone to the town hall to apply for a permit to reconstruct the house on the land.

We conclude that the equities in this case lie with the plaintiffs. The defendants rely solely on the discrepancy between Greene’s title and the regulations for their assertion that the board of appeals was without jurisdiction to hear an appeal of the order. This contention is unavailing. Clearly, as the defendants’ prior experience with Greene makes clear, the defendants were aware that Greene was an “official charged with the enforcement of . . . any. . . regulation . . . .” General Statutes § 8-6 (a) (1). As a result, any appeal arising from the alleged error in the order due to Greene’s legal authority should have been brought before the board of appeals. In short, the defendants chose to ignore both the order and the proper channel for appealing that order, despite notice that they were violating the Watertown regulations.

The decision to grant an injunction is discretionary and will not be reversed absent a clear abuse of discretion. Crabtree v. Coyle, 19 Conn. App. 208, 211, 561 A.2d 455 (1989). The defendants have failed to demonstrate that the trial court, in weighing the equities, abused its discretion in granting injunctive relief.

The judgment is affirmed.

       Section 72.1 of the Watertown zoning regulations provides: “Zoning Enforcement Officer. The Commission shall appoint a Zoning Enforcement Officer who shall have the responsibility and authority to enforce the provisions of these Regulations in accordance with any administrative rules and procedures established by the Commission. The Commission may appoint [a] Deputy Zoning Enforcement Officer to assist and act for hint."

       General Statutes § 8-6 provides in relevant part: “Powers and duties of board of appeals, (a) The 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 . . . .”

       The trial court did, nevertheless, address the merits of the defendants’ claim. See footnote 4.

       The trial court decided that, while there may have been a technical defect in Greene’s appointment, she was a de facto planning and zoning officer pursuant to Furtney v. Zoning Commission, 159 Conn. 585, 596-97, 271 A.2d 319 (1970).

       See footnote 1.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. ROY GUBITOSI, JR.
    (14690)
    Dupont, C. X, and Landau and Freedman, Js.

      Argued September 25
    officially released October 22, 1996

      Catherine E. Teitell, for the appellant (defendant).

      Ronald G. Weller, with whom, on the brief, were Donald A. Browne, state’s attorney, and Nicholas J. Bove, Jr., for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a plea of nolo conten-dere; see General Statutes § 54-94a; to possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence of drugs seized by the police during a warrantless search of his person.

The trial court found the following facts. On October 12, 1994, the police received a call from a citizen informant in Bridgeport. The informant stated that he observed the defendant in and around a car, that the defendant appeared to be “drunk or stoned,” and that the hood of the car was up and he thought the defendant was going to “take it apart.” Officer Carl O’Ravitz of the Bridgeport police department responded to a call from the police dispatcher that a male was “stripping” a car.

Upon arriving at the scene, O’Ravitz observed the defendant in a car on the passenger side of the front seat with the passenger side door opened. He was bending over doing something near the floor. As O’Ravitz and the defendant simultaneously exited their respective cars, O’Ravitz observed that the defendant was nervous, talking very fast, seemed dazed, and appeared to be under the influence of something. O’Ravitz asked the defendant to put his hands on the roof of the car and, before doing so, the defendant hesitated. With his gun drawn, O’Ravitz, concerned for his safety, conducted a patdown of the defendant for weapons. In the course of conducting his patdown of the defendant, O’Ravitz felt a large object in the defendant’s pocket, which he immediately concluded contained crack vials. O’Ravitz reached into the defendant’s pocket and seized 111 crack vials and, upon further investigation, discovered glassine envelopes containing narcotics. The defendant was then arrested.

The defendant moved to suppress the narcotics that had been seized from him on the ground that the narcotics had been discovered during an illegal search. The trial court denied the defendant’s motion to suppress the narcotics, finding that O’Ravitz did not violate any constitutional prohibitions either in the stop and seizure, the protective patdown search for weapons, or in his subsequent search of the defendant’s pockets.

On appeal, our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is “clearly erroneous in view of the evidence and pleadings in the whole record . . . .” Practice Book § 4061; State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. State v. Oquendo, supra, 645; State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991).

Applying this standard of review, we conclude that the trial court’s findings and conclusions are legally and logically consistent with the evidence and, thus, are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal .... The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .” See also Practice Book § 4003.

       General Statutes § 21a-277 provides in pertinent part: “Penalty for illegal manufacture, distribution, sale, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than filly thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, and be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. . . .”

       In his brief, the defendant argues that the “plain feel” doctrine is unconstitutional under our state constitution and cites State v. Trine, 37 Conn. App. 561, 657 A.2d 675 (1995). After the defendant’s brief was filed, our Supreme Court reversed Trine and adopted the “plain feel” doctrine. State v. Trine, 236 Conn. 216, 234, 673 A.2d 1098 (1996).
      The defendant also claims under the federal constitution that O’Ravitz exceeded the permissible bounds of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), by “flexing his fingers” during the patdown. We disagree. In Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the United States Supreme Court adopted the “plain feel” doctrine, concluding that if during a patdown an object’s identity is “immediately apparent,” the search and subsequent seizure is constitutional. In our case, O’Ravitz testified that when he first felt the object in the defendant’s pocket he knew it to be crack vials. Because the identity of the object was “immediately apparent,” O’Ravitz’s search of the defendant was within the permissible bounds of Terry.


text:
    GARRY KLINGER v. CONNECTICUT REAL ESTATE COMMISSION
    (15189)
    Dupont, C. J., and Landau and Stoughton, Js.
    Argued September 27
    officially released October 22, 1996

      Garry Klinger, pro se, the appellant (plaintiff).

      Neil G. Fishman, with whom, on the brief, was Richard Blumenthal, for the appellee (defendant).
   PER CURIAM.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision by the defendant Connecticut Real Estate Commission (commission) revoking his license to sell real estate and denying his application for a brokerage license. The commission’s initial decision was issued on September 30,1991. On October 3,1991, the plaintiff petitioned the commission for reconsideration. On November 13,1991, the commission granted the petition and scheduled a new hearing. On November 14, the plaintiff filed his appeal to the Superior Court from the September 30 decision. On February 6, 1992, the commission repeated the findings made in its earlier decision and issued another decision affirming the earlier decision.

The plaintiffs appeal from the commission’s September 30,1991 decision is moot because it was superseded by the commission’s February 6, 1992 decision. Although the plaintiff may have had a right to appeal from the commission’s February 6 decision, he did not do so.

The judgment of dismissal is affirmed.


text:
    BONNIE D. DAVIS v. NEIL DRUKS
    (14908)
    Dupont, C. X, and Foü and Spear, Js.
    Submitted on briefs September 30
    officially released October 29, 1996

      Thomas F. Brown filed a brief for the appellant (plaintiff).

      Daniel E. Ryan III and Darren P. Renner filed a brief for the appellee (defendant).
   PER CURIAM.

The plaintiff appeals following the trial court’s denial of her motion to set aside the verdict and for an additur. On appeal, the plaintiff claims that the trial court improperly denied her motion and argues that the jury’s award of $6000 for noneconomic damages was inadequate to compensate her for her past and future pain and suffering, and was against the weight of the evidence.

The plaintiff commenced an action against the defendant seeking damages for personal injuries arising out of a tooth extraction performed by the defendant. The matter was tried to a jury, which returned a verdict for the plaintiff in the amount of $17,000 for economic damages and $6000 for noneconomic damages. The plaintiff filed a motion pursuant to General Statutes § 52-228b requesting the trial court to order an additur and, if the defendant failed to accept the additur, requesting the trial court to set aside the verdict as to noneconomic damages only.

“Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury. . . . The trial court’s refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake, or corruption.” (Citations omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 112—14, 663 A.2d 398 (1995).

The jury could have found reasonably the facts that follow. The defendant, in extracting the plaintiffs impacted lower wisdom tooth on December 7, 1987, negligently used inappropriate force to remove the tooth. This inappropriate force proximately caused the plaintiffs injuries. These injuries included temporo-mandibular joint dysfunction (TMJ); trismus, a temporary limited ability to open one’s mouth resulting from muscle pain or infection; and a fractured lingual plate, which caused an exposed bone chip in the plaintiffs mouth. There is a risk of creating each of these conditions when a lower wisdom tooth is extracted even in the absence of negligence by the dentist. The plaintiff visited the office of two oral surgeons for treatment of these problems on numerous occasions following the extraction. The plaintiff was in no pain until shortly after December 23,1987, when she displayed symptoms of TMJ. Subsequently, the plaintiff underwent arthroscopic surgery and physical therapy and wore a mouth appliance to correct the TMJ. In April, 1990, the plaintiff had intermittent pain that interfered with her life only to a slight degree. The prognosis was that the plaintiff might have recurring difficulty with TMJ, including headaches.

We conclude, after carefully reviewing the record in the light most favorable to sustaining the jury’s verdict, that the jury could reach fairly a verdict of $6000 for noneconomic damages. That award does not shock the sense of justice. Consequently, the trial court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict and for an additur.

The judgment is affirmed.

       General Statutes § 52-572h (a) (2) defines “noneconomic damages” as “compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . . .”

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages axe excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       The jury’s completed verdict form included the following interrogatories:
      “5. Do you find that the defendant Dr. Neil Druks was negligent in this treatment of the plaintiff, Mrs. Bonnie Davis in that he used inappropriate force to remove the tooth in question?
      “Yes.
      “6. If you find that the answer to the preceding interrogatory is yes, do you find that such negligence was the proximate cause of the injuries claimed by the plaintiff?
      “Yes.”


text:
    DMITRY TOLCHINSKY ET AL. v. TOWN OF EAST LYME ET AL.
    (15448)
    Landau, Schaller and Healey, Js.
    Argued September 26
    officially released October 29, 1996

      Russell L. Case, for the appellants (plaintiffs)

      Michael S. Taylor, with whom, on the brief, was John B. Farley, for the appellee (defendant Consulting Environmental Engineers, Inc.).
   PER CURIAM.

The plaintiffs appeal from the judgment that followed the trial court’s granting of the motion filed by the defendant Consulting Environmental Engineers, Inc. (Consulting Engineers), to strike the third count of the amended complaint.

The plaintiffs claim that the trial couxt improperly granted Consulting Engineers’ motion to strike in that the facts alleged in that sole count against it were sufficient to state the existence of a duty owed by Consulting Engineers to the plaintiffs and, thus, stated a viable cause of action. The plaintiffs have failed to present a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court explaining the factual basis for its decision, nor have they served notice on the trial court to provide the parties with a written decision. See Practice Book § 4059. Further, even if we could afford review based on the transcript itself, it would be unavailing here because the trial court failed to place on the record its reasons for granting the motion from which the defendant seeks review. The trial court merely signed the short form order, granting Consulting Engineers’ motion to strike. We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review. Practice Book § 4061; Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). We see no reason to depart from this rule.

The judgment is affirmed.

       The plaintiffs filed claims against six defendants in their amended complaint. Consulting Environmental Engineers, Inc., is the only defendant involved in this appeal.

       This appeal is properly before this court pursuant to Practice Book § 4002B, which provides in pertinent part: “A judgment disposing of only a part of a complaint ... is a final judgment if that judgment disposes of all causes of action in that complaint. . . brought by or against a particular party or parties.
      “Such a judgment shall be a final judgment regardless of whether judgement was rendered on the granting of a motion to strike pursuant to Sec. 157 .. . .”

       The plaintiffs provided in the record a copy of the trial court’s decision addressed to a motion to strike filed by codefendant KWP Associates involving the fourth count of the amended complaint and at argument suggested that this would satisfy the rule requiring that they provide an adequate record. This reasoning defies common sense and our rules of practice. See Practice Book § 4059.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. JONATHAN WILD
    (15093)
    Lavery, Heiman and Hennessy, Js.
    Argued September 20
    officially released October 29, 1996

      Richard T. Miller, with whom was John F. Cocheo, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Theresa Ferryman, deputy assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a/ and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant asserts that the trial court (1) improperly admitted evidence of prior misconduct as relevant to the issue of proof of the defendant’s intent, and (2) failed to give limiting jury instructions at the time the constancy of accusation witnesses testified. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. The victim is the defendant’s daughter. The defendant and the victim’s mother were divorced on December 6, 1991. Following the divorce, the victim and her younger sister visited with the defendant at his home every other weekend. During these visits, the victim usually slept in a guest bedroom while the defendant slept in another room.

During a weekend visit in June, 1993, the victim, who was seven years old at the time, slept in the defendant’s bed because other relatives were also visiting and were staying in the guest bedroom. While the defendant was in bed with her, he unzipped the victim’s pajamas, put his hand under her underpants, and touched her vaginal area. The victim was frightened and hid under the bed.

The victim did not tell anyone about the incident at that time. During the fall of 1993, a police officer spoke at the victim’s school about improper touching.' Subsequently, in January, 1994, the victim told her mother about the June, 1993 incident. The victim also talked about the incident with Trooper Todd Lynch of the Connecticut state police and Elizabeth LaChapelle, a clinical psychologist.

Lynch investigated the victim’s complaint and took statements from the defendant on January 18 and January 31, 1994. In those two signed statements, the defendant admitted to spending the night in the same bed with his daughter, but claimed he could not remember unzipping her pajamas or touching her vaginal area. He did recall, however, waking up in the morning with his hand on his daughter’s stomach. The defendant disclosed that he had suffered an epileptic seizure in 1991. He was subsequently arrested and charged with sexual assault for behavior that occurred during the seizure. The defendant suggested that it was possible that he had experienced a seizure that night in June, 1993, and had touched his daughter during the seizure. The defendant was arrested on March 4, 1994.

At trial, the victim testified as to the June, 1993 incident. The victim’s mother, Lynch and LaChapelle testified as to, among other things, what the victim had told them regarding the June, 1993 incident. Rose Niedz-wicki, a clinical psychologist, testified as an expert on child sexual assault victims. S, a young girl who formerly babysat for the defendant’s children, testified to an incident in 1991 when the defendant touched her vaginal area.

The defendant and his sister, Nancy Davis, testified in his defense. The defendant admitted to having slept in the same bed with the victim in June, 1993, but asserted that the only time he touched his daughter that night was when she repeatedly rolled over onto his right arm, and he had to push her away. The defendant’s sister testified that she was at the defendant’s home that same weekend in June, 1993, and she did not notice anything unusual. The jury found the defendant guilty as charged, and this appeal follows.

I

The defendant first asserts that the trial court improperly admitted into evidence an act of prior misconduct as relevant to the issue of the defendant’s intent. We disagree.

The following additional facts are necessary to resolve this issue. On July 5, 1995, the trial court held a hearing outside the presence of the jury to determine whether it should permit the state to introduce evidence of prior sexual misconduct committed by the defendant.

During the hearing, the state presented the testimony of S, the victim of the defendant’s prior misconduct. S testified that she knew the defendant and formerly babysat for the victim and her younger sister. Sometime in 1991, S went to the defendant’s house to visit with his family. The defendant told S that the victim and her mother were not at home but would be back shortly. S went into the defendant’s house to wait for the others to return. She was sitting on the floor of the living room, playing with the victim’s sister when the defendant began touching her back. S stood up and took the victim’s sister out to the front porch. The defendant followed them and touched S on the chest and vaginal areas. S tried to fight off the defendant, then walked off of the front porch and onto the grass. The defendant followed, got down on the grass, crawled between S’s legs and pushed her up on his shoulders. The defendant put S down and she went home. S was fourteen years old at the time of the incident, weighed between eighty-five and ninety pounds, and was not very physically developed.

The state argued that S’s testimony was admissible to prove the defendant’s intent in touching the victim as well as the defendant’s common scheme to molest young girls sexually. The state noted that the defendant’s two written statements to the police, which had been admitted into evidence, did not deny that something had happened with the victim in 1993, but suggested that the defendant may have had an epileptic seizure and been unaware of what he was doing. The state argued that these statements brought the element of intent into question. Thus, it argues, the prior misconduct with S was admissible to show that the defendant’s touching of the victim’s vaginal area was intentional, not inadvertent, and was not behavior of which the defendant was unaware or that he could not control.

The defendant objected to the evidence of the prior misconduct, arguing that the incident with S was too different from the incident with the victim to be admissible. He also argued that admission of the evidence would be extremely prejudicial to the defendant.

The trial court held that S’s testimony was not admissible to prove a common scheme, but was admissible to show the defendant’s intent. The court noted that the state was required to prove intent with regard to both of the crimes with which the defendant was charged, and that the defendant’s statements to the police had called this element into question.

When the jury returned to the courtroom, the trial court instructed it (1) that the state was required to prove intent with regard to both of the charges against the defendant, (2) that S’s testimony was relevant only to the element of intent, and (3) that they could not consider the testimony with regard to any other element. The state then called S as a witness and she testified to the same facts regarding the incident with the defendant that she had related during the hearing. After S’s testimony, the trial court gave the jury another limiting instruction. During the charge, the trial court again instructed the jury on the limited purpose of S’s testimony.

The law in Connecticut regarding the admission of evidence of prior misconduct is well established. “As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity, to name some exceptions to the rule. . . . The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency.” (Citations omitted; internal quotation marks omitted.) State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. ...” (Citations omitted; internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).

The defendant asserts that the prior sexual misconduct evidence was irrelevant to the issue of intent because it was dissimilar as well as remote from the sexual misconduct at issue in this case. Thus, the defendant asserts that the trial court abused its discretion when it determined that the prior sexual misconduct evidence was more probative than prejudicial. We are unpersuaded.

The prior sexual misconduct was very similar to the sexual misconduct at issue in this case. Both of the victims were young, undeveloped girls whom the defendant knew well. In both instances, the defendant touched the victim in the vaginal area, when the defendant was alone with the victim and his younger daughter in an area of the defendant’s home. The prior sexual misconduct occurred only two years before the sexual misconduct at issue here.

The trial court conducted a full hearing outside the presence of the jury in which it allowed the defendant to argue extensively against the offer of proof. The trial court also allowed the parties to file written briefs addressed to the issue. After careful consideration of the parties’ arguments, the court determined that the probative value of the prior misconduct evidence outweighed its prejudicial tendency. Moreover, the trial court lessened the potential prejudice to the defendant by repeatedly giving the jury limiting instructions. Id., 663. The care with which the trial court weighed the evidence and devised measures for reducing its prejudicial effect militates against a finding of abuse of discretion. See State v. Morowitz, 200 Conn. 440, 447, 512 A.2d 175 (1986). We conclude that the trial court did not abuse its discretion in admitting the evidence of prior misconduct as relevant to the issue of the defendant’s intent.

II

The defendant next asserts that the trial court’s failure to give limiting instructions at the time the constancy of accusation testimony was offered, deprived the defendant of a fair trial. We disagree.

Certain additional facts are necessary to our resolution of this issue. On July 5, 1996, the victim testified about the defendant’s June, 1993 touching of her vaginal area. The state then presented the testimony of the victim’s mother, Lynch and LaChapelle. All three of these witnesses testified as to what the victim had told each of them regarding the June, 1993 sexual assault. The defendant neither objected to the constancy of accusation testimony nor requested that an instruction be given at the time of the testimony regarding the limited use of such testimony. The court did not give limiting instructions immediately before or after the testimony of these witnesses.

The next morning, during the charge, the trial court instructed the jury that the testimony of the victim’s mother, Lynch and LaChapelle had included constancy of accusation evidence. The court further instructed the jury that this evidence could be used only to corroborate the victim’s testimony, and that it was not being offered to prove that the June, 1993 incident actually occurred. Defense counsel took no exceptions to the trial court’s charge.

The defendant concedes that at the time the constancy of accusation witnesses testified, he did not object, nor did he request that the trial court give limiting instructions. Thus, he claims entitlement to review of this unpreserved claim pursuant to the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In support of his claim for Golding review, the defendant asserts that the trial court’s failure to give limiting jury instructions at the time the constancy of accusation witnesses testified violated his constitutional rights to due process and a fair trial. We are unpersuaded.

“We have previously held that the failure of the trial court to give a limiting instruction concerning the use of evidence ... is not a matter of constitutional magnitude. . . . Absent a claim of constitutional magnitude, the defendant’s unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 40 Conn. App. 374, 381, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). We thus conclude that the defendant’s unpreserved claim does not warrant Golding review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a provides in pertinent part: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       General Statutes § 53-21 provides: “Anypersonwho wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant had recently had surgery on his right arm, which was sore and in a sling.

       The first incident of sexual misconduct occurred when the defendant was alone with S and his younger daughter at his home. The second incident occurred when the defendant was alone with the victim and her sister in an upstairs bedroom of the defendant’s home while other family members were elsewhere in the house.

       The trial com! instructed the jury as follows: “Also, there is some testimony I’m going to instruct you on shortly, which is called constancy of accusation testimony, and that is when certain witnesses testify what [the victim] told them about the incident in question. When the witness got on the witness stand and said [the victim] told me—whatever [the victim] told them—that’s not being offered for the truth of whether or not that occurred, but whether or not [the victim] was constant in her accusation, whether or not she corroborated her story to outside people. And I’ll instruct you on more of that in a moment. But as a limiting instruction now, please be aware what those people said [the victim] told me this. It doesn’t mean that they’re telling you whether or not it’s true. It means they’re telling you whether or not [the victim] told them. All right? . . . The victim has testified here in court as to the offense she claims was committed upon her. Now, if that was all that was present before you, you’d ask yourself why did she keep silent about it until she came here before the court to testily. So, for the sole purpose of corroborating her testimony, the state is permitted to prove that outside of court, she made the complaints of the injury done to her. Here, the witnesses Trooper Lynch, Dr. LaChapelle and [the victim’s mother] testified regarding the issue of constancy of accusation. Now understand also, that these witnesses offered testimony on other areas of this case other than constancy of accusation. However, as to their testimony of constancy of accusation, this evidence is admitted solely to corroborate the testimony of the victim in court. It is to be considered by you only in determining the weight and the credibility of the victim’s testimony. The fact that the victim made these statements is not being offered to prove that it happened, but merely that she claimed it happened to corroborate her court testimony. In determining the extent of such corroboration in [the victim’s] statements out-of-court, you will carefully consider all the circumstances under which they are made, particularly, you should consider whether she has been constant and consistent in what she has said.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances. ” State v. Golding, supra, 213 Conn. 239-40.

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).


author: HENNESSY, J.

text:
    SAVINGS BANK LIFE INSURANCE COMPANY v. DAVID A. LINTHICUM ET AL.
    (16244)
    O’Connell, Spear and Hennessy, Js.
    Considered September 25
    officially released October 10, 1996

      Thomas V. Battaglia, in support of the motion.

       October 10, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   HENNESSY, J.

The plaintiff in this foreclosure action moves to dismiss the defendant’s appeal for lack of a final judgment. We agree with the plaintiff that the denial of an application for protection from foreclosure under General Statutes § 49-3 If is not immediately appealable.

The following facts are relevant to the disposition of this motion. The defendant David Linthicum executed a note and mortgage to the plaintiff. Following the defendant’s default on the note, the plaintiff brought this action to foreclose its mortgage on the defendant’s property located in the town of Fairfield. The pro se defendant then filed an answer to the complaint and an application for protection from foreclosure pursuant to § 49-3 If. The trial court denied his motion and this appeal followed.

“In determining whether an order is a final judgment for purposes of appellate review, we rely on the standard articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). That standard permits the immediate appealability of an order 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. Madigan v. Madigan, [224 Conn. 749, 753, 620 A.2d 1276 (1993)], quoting State v. Curcio, supra, 31.” (Internal quotation marks omitted.) In re Elisabeth H., 40 Conn. App. 216, 218-19, 669 A.2d 1246 (1996). We conclude that neither of the two circumstances set forth in Curdo are present in this appeal.

“The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be severable from the central cause to which it is related so that the main action can proceed independent of the ancillary proceeding. In re Juvenile Appeal (85-AB), 195 Conn. 303, 307, 488 A.2d 778 (1985). ... The question to be asked is whether the main action could proceed independent of the ancillary proceeding. State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984).” (Internal quotation marks omitted.) G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 121-22, 679 A.2d 32 (1996).

The puipose of an application for protection from foreclosure under § 49-31f is to grant the defendant an opportunity for the restructuring of the mortgage debt. General Statutes § 49-31g. If the application is approved, the foreclosure action is stayed for the restructuring period, pursuant to § 49-3 If (f). “If, for a period of three months following the end of the restructuring period, there are no further proceedings to continue the foreclosure proceedings based upon a default on the mortgage as restructured, the foreclosure action shall be dismissed. . . .” General Statutes § 49-31f (f).

The main foreclosure action cannot proceed independent of the ancillary § 49-31f proceeding because, under the terms of the statute, the effect of the § 49-3 If proceeding is to stay, and possibly terminate, the foreclosure action. Because the application for protection from foreclosure is not a proceeding separate and distinct from the foreclosure action, the denial of the application does not terminate a separate and distinct proceeding.

Likewise, the denial of the defendant’s § 49-3 If application does not so conclude the rights of the parties that further proceedings cannot affect those rights. After the court renders a final judgment as to the foreclosure, the defendant may appeal and then challenge the denial of his application for protection from foreclosure. See Savings Institute v. Wagner, 31 Conn. App. 939, 626 A.2d 1346 (1993). Because the defendant’s right to protection from foreclosure under § 49-3 If may be vindicated on appeal from the judgment on the merits of the foreclosure action, it is not necessary for the defendant to appeal at this time to prevent the irretrievable loss of that right. Ruggiero v. Fuessenich, 237 Conn. 339, 347, 676 A.2d 1367 (1996).

Because the denial of the defendant’s application for protection from foreclosure under § 49-31f does not satisfy either standard of finality, the order is not a final judgment for the purpose of appeal. “ ‘The lack of a final judgment is a jurisdictional defect that requires that [this court] dismiss the appeal.’ Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 81, 597 A.2d 1289 (1991), citing Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985).” Connecti cut National Bank v. L & R Realty, 40 Conn. App. 492, 495, 671 A.2d 1315 (1996).

The plaintiffs motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       General Statutes § 49-31Í provides in relevant part: “(a) Subject to the provisions of subsection (b), a homeowner who is underemployed or unemployed against whom a foreclosure action is brought may make application, together with a financial affidavit, to the court having jurisdiction over the foreclosure action for protection from foreclosure . . . .”

       Also named as defendants were Derby Savings Bank, Joan Burry, Berj Haroian, the United States Department of the Treasury and the town of Fairfield. The complaint alleged that the interests of the above parties in the property were subordinate to that of the plaintiff. The plaintiff later withdrew the action as to Joan Burry and Berj Haroian. The term defendant in this opinion refers only to David Linthicum.

       For a discussion of what constitutes a final judgment on the merits of the foreclosure action, see Connecticut National Bank v. L & R Realty, 40 Conn. App. 492, 671 A.2d 1315 (1996), and Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991).


author: O’CONNELL, J.

text:
    YANKEE MILLWORK SASH AND DOOR COMPANY v. JOSEPH A. BIENKOWSKI
    (16240)
    O’Connell, Foti, Lavery, Landau and Hennessy, Js.
    Considered September 18
    officially released October 29, 1996

      Joseph W. McQuade and Nancy J. Valerio, in support of the motion.

      David L. Griffith, in opposition.
   O’CONNELL, J.

The defendant moves to dismiss the

plaintiffs appeal for lack of a final judgment. He argues that the granting of a motion to cite in a party in order to pursue an interpleader claim is not an immediately appealable order. We agree.

The following facts are necessary to the disposition of the defendant’s motion. The defendant and PRE Builders, Inc. (PRE), entered into an agreement for the performance of construction work on the defendant’s house. The plaintiff then entered into a contract with PRE to furnish materials for PRE’s use in completing the work on the defendant’s house. The plaintiff furnished the materials, but PRE failed to pay the plaintiff. As a result, the plaintiff placed a mechanic’s lien on the defendant’s property and brought this foreclosure action.

The defendant does not contest that he owes $2250 for the work completed on his house pursuant to his contract with PRE. He alleges, however, that the Internal Revenue Service (IRS) notified him of its levy on any moneys owed to PRE and its hen against PRE for failure to pay taxes. Therefore, he argues that if he paid the plaintiff, he could still be liable to the IRS. The defendant therefore filed a motion to cite in the United States as a party, and a motion for permission to file an interpleader claim against the plaintiff and the United States pursuant to General Statutes § 52-484. The trial court granted both motions and ordered the defendant to serve the United States and the plaintiff with an interpleader complaint. This appeal followed.

“The general rule, which is embodied in the Connecticut interpleader statute, is that a party who is confronted with conflicting claims from various alleged creditors to a fund in his possession and who does not claim any interest in the fund . . . may in good faith interplead the various claimants . . . .” Franklin Construction Co. v. F & M Concrete Construction Co., 35 Conn. Sup. 79, 81, 396 A.2d 510 (1978). An interpleader claim is most commonly raised in an independent action. It can be raised, however, as in this case, by counterclaim or cross claim. See Bishop v. Groton Savings Bank, 96 Conn. 325, 114 A. 88 (1921).

“A complaint in an interpleader action should allege only such facts as show that there are adverse claims to the fund or property and need not, in fact, should not, allege the basis upon which any claimant relies to justify his claim; the latter allegations are to be made in the statement of claim following the interlocutory judgment of interpleader.” John Hancock Mutual Life Ins. Co. v. Advance Realty Co., 9 Conn. Sup. 367, 368 (1941); Practice Book § 538.

The interlocutory judgment of interpleader determines the propriety of the interpleader procedure. 45 Am. Jur. 2d 179, Interpleader § 38 (Sup. 1996). Until the interlocutory judgment of interpleader has been rendered, there can be no trial on the merits of the interpleader proceeding. Practice Book § 539. In an interpleader proceeding, therefore, “there are, in effect, two separate and distinct suits, the first suit . . . [determining] whether there shall be a decree of inter-pleader, and the second . . . [determining] who shall get the fund or thing in dispute.” 45 Am. Jur. 2d 459, Interpleader § 35 (1969).

In Kerite Co. v. Alpha Employment Agency, Inc., 166 Conn. 432, 437-38, 352 A.2d 288 (1974), our Supreme Court held that the interlocutory judgment of inter-pleader is immediately appealable. The proceeding before us, however, has not yet reached the point of an interlocutory judgment of interpleader. At the time the plaintiff appealed, the only developments as to the interpleader matter were the granting of the defendant’s motion to cite in the United States and the granting of his motion for permission to file an interpleader claim against the United States and the plaintiff. The defendant had not yet served the.parties nor filed the return with the court. A judgment, even an interlocutory judgment, cannot be rendered in an action that has not yet been brought.

The appeal is jurisdictionally defective because it was not taken from an immediately appealable interlocutory judgment. The appeal therefore must be dismissed. Connecticut National Bank v. L & R Realty, 40 Conn. App. 492, 494, 671 A.2d 1315 (1996), citing Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985), and Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 81, 597 A.2d 1289 (1991).

The defendant’s motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       General Statutes § 52-484 provides: “Whenever any person has, or is alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill of interpleader, to any court which by law has equitable jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to or interested in such money or other property. Such court shall hear and determine all questions which may arise in the case, may tax costs at its discretion and, under the rules applicable to an action of interpleader, may allow to one or more of the parties a reasonable sum or sums for counsel fees and disbursements, payable out of such fund or property; but no such allowance shall be made unless it has been claimed by the party in his complaint or answer.”

       Practice Book § 538 provides: “The complaint in an interpleader action shall allege only such facts as show that there are adverse claims to the fund or property.”

       Practice Book § 539 provides: “No trial on the merits of an interpleader action shall be had until (1) an interlocutory judgment of interpleader shall have been entered; and (2) all defendants shall have filed statements of claim, been defaulted or filed waivers. Issues shall be closed on the claims as in other cases. The complaint and the answer or disclaimer shell follow the applicable Practice Book forms as nearly as possible.”


author: FOTI, J.

text:
    RICHARD POWERS ET AL. v. RUDOLPH FARRICELLI ET AL.
    (14834)
    O’Connell, Foti and Hennessy, Js.
    Argued September 16
    officially released October 29, 1996

      Richard M. Franchi, for the appellant (named plaintiff).

      Terrence J. Molinari, with whom, on the brief, was David J. Dwyer, for the appellees (defendants).
   FOTI, J.

The plaintiff Richard Powers appeals from the judgment rendered for the defendants after a jury trial. The plaintiff claims that the trial court improperly (1) instructed the jury and (2) decided his motion to set aside the verdict before a motion for additur could be presented to the court. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendants, Rudolph Farricelli and Nora Far-ricelli, owned a house at 105 Tyler Street in West Haven, which needed shingles on its roof replaced. They asked the plaintiff, a friend, to assist in this task. The plaintiff agreed to help them without compensation. On September 10, 1988, after the plaintiff had removed some shingles, he stepped on the exposed wood and fell through the roof. He stopped the fall with his arms, causing his left elbow to dislocate and fracture.

I

The plaintiff first claims that the trial court improperly instructed the jury instead of answering the jury’s question as presented. During deliberation, the jury delivered the following written request: “We would like to confirm that plaintiffs verdict # 2 would be the appropriate form to use if we find both plaintiff and defendant equally at fault without any monetary award.” The question was signed by the foreperson and dated. In response, the trial court reread a portion of its charge and further instructed the jury. In support of this claim, the plaintiff cites Fox v. Colony T.V. & Appliance, Inc., 37 Conn. App. 453, 656 A.2d 705, cert. denied, 233 Conn. 915, 659 A.2d 185 (1995).

As a preliminary matter, we must determine whether this claim is precluded from review. The plaintiff failed to object to this instruction as given or to note his exception to the method in which the trial court responded to the jury’s inquiiy. Additionally, it appears from the record, and the plaintiff concedes, that he agreed to both the method and the instruction. After the court and the parties were made aware of the question posed by the deliberating jury, counsel for the parties met in chambers with the trial judge to discuss the proper way to handle the situation. All agreed that the question may have been confusing and that a simple yes or no response would be inadequate. Both counsel agreed with the trial court that the proper method of proceeding would be to reread certain portions of the instruction. The judge and both counsel then reviewed the instruction as given to the jury and agreed on which portions would be reread, including that portion of the charge dealing with the proper use of the jury verdict forms. Both counsel confirmed on the record that they had agreed with the judge’s method and instruction.

The plaintiff first raised his dissatisfaction with the trial court’s response to the jury’s written request in his motion to set aside the verdict filed two days after the jury verdict was accepted. The plaintiff claims that he “did give the trial court the opportunity to correct its error by bringing the matter [to] the attention of the court in the motion to set aside the verdict” and, therefore, our review should be by a standard of “abuse of discretion.” He claims for the first time in his reply brief that he is entitled to plain error review in that the interests of justice require it and that both parties and the court overlooked “controlling common law precedent.” We do not agree.

Our Supreme Court has “made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967). This same principle requires “parties to raise an objection, if possible, when there is still an opportunity for the trial court to correct the proposed error.” Tessman v. Tiger Lee Construction Co., 228 Conn. 42, 57 n.10, 634 A.2d 870 (1993); see also Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993). Unquestionably, it was possible for the plaintiff to object in a timely fashion to allow the trial court an opportunity to correct any claimed error in the procedure or the instruction. Raising that objection as an issue for the first time in a motion to set aside the verdict, obviously does not allow such a possibility because the jury has been excused. When we speak of correcting the claimed error, we mean when it is possible during that trial, not by ordering a new trial. We do not look with favor on parties requesting, or agreeing to, an instruction or a procedure to be followed, and later claiming that that act was improper. We therefore do not reach the merits of the plaintiffs claim. See Practice Book § 315.

We also decline the plaintiffs invitation to afford plain error review to this claim. Such review is granted only in extraordinary situations where the error is so obvious that it affects the fairness and integrity of public confidence in the judicial proceeding. See Practice Book § 4061; State v. Taheri, 41 Conn. App. 147, 153, 675 A.2d 458, cert. denied, 237 Conn. 931, 677 A.2d 1374 (1996). We have carefully reviewed the trial court’s jury instructions and conclude that the plaintiffs claim of error does not merit consideration under the plain error doctrine.

II

The plaintiff next alleges that the trial court improperly denied his motion to set aside the verdict. On appeal, the plaintiff claims only that the amount of the verdict was inadequate. He argues that the denial of his motion to set aside the verdict was improper because the court’s action was accomplished before he presented a motion for additur, or in the alternative, that the court itself should have set an amount as an “additur.”

The plaintiff correctly argues that, even absent his filing a motion for additur, the trial court, has the right to conclude at the end of the trial that the verdict is inadequate as a matter of law and may order an additur pursuant to General Statutes § 52-216a. The plaintiff contends that the trial court should have set an amount as an additur and presented that to the parties allowing a reasonable time for the acceptance of that amount. The plaintiff mistakenly relies on Jeffries v. Johnson, 27 Conn. App. 471, 478, 607 A.2d 443 (1992), where we concluded, after the jury had returned a verdict in favor of the plaintiff, that the trial court should have ordered an additur pursuant to General Statutes § 52-228b rather than ordering a new trial.

The plaintiff cannot prevail on his claim because the jury returned a verdict for the defendants. Section 52-228b is inapplicable because it applies only to a verdict for the plaintiff that may be deemed to be inadequate. A court may not order an additur to a defendant’s verdict. Accordingly, because the trial court in this case could neither grant the plaintiffs motion for additur nor order an additur on its own, it properly denied the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

      A second plaintiff, Lisa Marie Powers, withdrew her claim against the defendants on March 2, 1995. We refer to Richard Powers as the plaintiff in this opinion.

       This issue as framed on appeal is: “Did the court erroneously decide the plaintiffs motion to set aside the verdict before an additur could be presented by the court?”
      In his preliminary statement of issues, the plaintiff listed the issue: “Did the court fail to stay its decision as the plaintiffs motion to set aside the verdict until an additur could be presented by the court?” The plaintiff had simultaneously filed both a motion to set aside the verdict and a motion for stay of the court’s decision as to his motion to set aside the verdict. Both were denied. We sua sponte ordered this issue stricken as an apparent improper attempt to obtain a review of an order concerning a stay of execution by appeal rather than by a motion for review. Practice Book § 4049.

       That decision was published subsequent to the trial court’s denial of the plaintiffs motion to set aside the verdict.

       A review of the plaintiffs motion to set aside the verdict, reveals that “inadequacy of the amount” was not the sole basis for the motion.

       The word “additur” is defined as “[a]n increase by the court in the amount of damages awarded by the jury.” Ballentine’s Law Dictionary (3d Ed. 1969).

       General Statutes § 52-216a provides in pertinent part,: “If [at the conclusion of the trial] the court concludes that the verdict is inadequate as a matter of law, it shall order an additur . . .

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       Our standard of review of a trial court’s decision to grant or to deny a motion to set aside a verdict as inadequate as a matter of law is that of an abuse of discretion. Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996).

       General Statutes § 52-228a permits an appeal by a party aggrieved by the court order of additur only on the issue of damages; the judgment on the verdict of liability stands.


text:
    STATE OF CONNECTICUT v. ANTHONY ODEN
    (15419)
    O’Connell, Foti and Hennessy, Js.

      Argued September 16
    officially released November 5, 1996

      Frank P. Cannalelli, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger S. Dobris, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Anthony Oden, appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c (a) (1). On appeal, the defendant claims that the trial court improperly (1) denied his motion to view the premises where the assault took place, (2) denied the jury’s request to view the premises after jury deliberation had commenced, (3) asked the jury to narrow its request for the transcript of a witness’ full testimony, and (4) allowed the prosecutor to demonstrate a karate kick during final argument. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On May 9, 1994, two New Haven police officers, Karen Hale and Sydney Collier, were patrolling the Newhallville section of the city. Around 9:30 p.m., they received a citizen’s complaint that “people were either using or selling drugs” in an abandoned house at 577-579 Winchester Avenue. The officers went to the address to investigate. Although there were no hghts in the house, the officers could see clearly because the fight from the moon and the street lamps was shining through the broken windows. In addition, the officers were using their flashlights.

During the search of the abandoned house, Hale, from an upstairs window, spotted the defendant walking down the street and into an alley next to the house. From a downstairs window, Collier also observed the defendant. Both officers recognized the defendant from previous encounters. The defendant came into the house and started up the stairs. Hale heard the footsteps and started down the stairs. When she saw the defendant, Hale yelled, “Police! Police!” After Hale observed the defendant reaching into his waistband, she drew her revolver. The defendant then “kicked [Hale] in the chest with a side motion of his foot,” and Hale fell backward down five or six stairs. The defendant fled from the premises but later turned himself in to the police after an arrest warrant was issued.

The defendant was arrested and charged with assault of a peace officer. At trial, the defendant claimed the defense of alibi and testified that at the time of the incident, he was at home with his mother and Yule Mitchell. The defendant’s mother and Mitchell testified in support of the defendant’s alibi. The jury returned a guilty verdict. This appeal followed.

I

The defendant first asserts that the trial court improperly denied his motion to allow the jury to view the location of the assault. In support of his motion, the defendant claimed the jury view was important to his alibi defense in order to refute the officers’ testimony that the house was well lit.

“ ‘Pursuant to Practice Book § 844, a trial court may permit a viewing of the scene of the crime if it is of the opinion that a viewing would be helpful to the jury in determining some material factual issue in the case.’ ” State v. Cintron, 39 Conn. App. 110, 116, 665 A.2d 95 (1995), quoting State v. Flynn, 14 Conn. App. 10, 28, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). The determination as to whether to permit the jury to view the scene of a crime is within the sound discretion of the trial court. State v. Cintron, supra, 116. “Thus, unless the action of the trial court in denying the motion constitutes an abuse of discretion, the decision of the trial court must stand. ” Id.

In deciding a motion to view the scene, “ ‘[t]he court should consider whether viewing the scene is necessary or important so that the jury may clearly understand the issues and properly apply the evidence.’ ” Id., quoting State v. Cato, 21 Conn. App. 403, 410, 574 A.2d 240, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). “Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and reasonably necessary to do justice.” (Internal quotation marks omitted.) State v. Cintron, supra, 39 Conn. App. 116.

In this case, the defendant conceded that the lighting conditions at the time of the view would be different from those that existed on the night of the crime. Furthermore, the defendant made no attempt to show that these admitted differences were minor or that the conditions were sufficiently similar. Thus, the trial court found that there was nothing in the record to indicate that the present lighting conditions were the same as those that existed on the night of the crime. The defendant, as the moving party, had the burden of making a preliminary showing that the conditions were sufficiently similar to the conditions on the day of the occurrence as to make a view meaningful in the resolution of the issues in dispute. Giannitti v. Stamford, 25 Conn. App. 67, 72, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 9.3.2, p. 276. Here, the defendant failed to make such a showing.

Moreover, the trial court found that the view was not necessary because the lighting conditions were fully described in Hale’s and Collier’s uncontroverted and unambiguous testimony. The jury was presented with evidence that the light from the moon and the street lamps shone brightly through the broken windows of the abandoned house. Both officers testified that they had used flashlights and had a clear view of the defendant, whom they recognized from previous encounters. In addition, the defendant also had an adequate opportunity to cross-examine Hale and Collier. The jury, therefore, had sufficient evidence to allow it to assess the scene of the crime. A firsthand view of the scene would have been cumulative and was neither necessary nor important to understand the issues or the evidence. See State v. Cintron, supra, 39 Conn. App. 117. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a jury view of the scene of the assault.

II

The defendant’s next two claims are based on two of three requests made to the trial court by the jury during its deliberation. The defendant first claims that the trial court improperly denied the jury’s request to view the crime scene after deliberation had commenced. He argues that the discretionary standard set out in Practice Book § 844 is not applicable to this situation because here, the jury, rather than one of the parties, made the request to view. He further argues that the trial court should have placed the burden of persuasion of the necessity of the view on the state and, that by placing the burden on the defendant, the court violated the defendant’s right to a fair trial and due process. In the defendant’s second claim based on the jury requests, the defendant maintains that the trial court improperly asked the jury to limit its request for the transcript of Hale’s entire testimony. We decline to review these claims as they were not properly preserved at trial and do not merit review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The following facts are necessary to the resolution of these issues. After jury deliberation had commenced, the jury sent a note to the trial court requesting the transcript of Hale’s entire testimony and parts of the defendant’s testimony. The court informed the parties of the jury’s request. The court also told the parties that it was going to ask the jury to narrow its request regarding Hale’s testimony because the testimony was available only through a tape recording, and the entire testimony was about two hours long. The defendant did not file an objection to the court’s action.

Later, the jury sent another note requesting to view the crime scene at approximately 9:30 p.m. Again, the court informed the parties of the jury’s request. At that time, the defendant asked the court for permission to “redo” his motion for a jury view “if I find sufficient research that supports me.” The trial court allowed the defendant to conduct his research but indicated that it was inclined to deny the request for the same reasons it denied the defendant’s motion to view. Pending the renewal of the defendant’s motion to view, the court informed the jury that its request to view was denied. The defendant failed to object to the trial court’s denial of the jury’s request and did not renew his motion for a jury view. Moreover, at trial, the defendant did not raise the issue of the inapplicability of Practice Book § 844 or the constitutional claims that he now asserts on appeal.

We will not review a claim that is not distinctly raised at trial. Practice Book § 4061; State v. Teel, 42 Conn. App. 500, 504, 682 A.2d 1012 (1996); State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). “We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic. Thus, we have consistently declined to review claims based on a ground different from that raised in the trial court ... or where the claim has not been raised before the trial court in the first instance.” (Citation omitted; internal quotation marks omitted.) State v. Beliveau, 36 Conn. App. 228, 242, 650 A.2d 591 (1994), aff'd, 237 Conn. 576, 678 A.2d 924 (1996); see also State v. Harrison, 34 Conn. App. 473, 482-83, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Furthermore, the defendant has not requested that we review his claims under State v. Golding, supra, 213 Conn. 233. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.’’(Internal quotation marks omitted.) State v. Teel, supra, 504, quoting State v. Rogers, supra, 787. We decline, therefore, to review the defendant’s claims.

Ill

In the defendant’s final claim, he contends that the trial court improperly allowed the prosecutor to demonstrate a karate kick during closing argument. The defendant argues that this alleged conduct was prejudicial and warranted a cautionary instruction by the trial judge. The defendant, however, did not request such an instruction or otherwise object at trial.

Moreover, the record is inadequate to review this claim. A defendant can prevail on an unpreserved claim of error only if the record is adequate for appellate review. It is the responsibility of the appellant to provide an adequate record for review. Practice Book § 4061; State v. Arisco, 39 Conn. App. 11, 15, 663 A.2d 442 (1995). The defendant has failed to provide any record of his unpreserved claim, thus, this claim is unre-viewable.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 844 provides in pertinent part: “When the judicial authority is of the opinion that a viewing by the jury of the place where the offense being tried was committed, or of any other place or thing involved in the case, will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the closing arguments, order that the jury be conducted to such place . . . .”

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       Even if we were to consider the reviewability of these claims under Golding, it would fail to satisfy the second prong. See footnote 2. It is well established that “[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” (Internal quotation marks omitted.) State v. Reddick, 33 Conn. App. 311, 331-32, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). The defendant’s claims are not of constitutional magnitude and are thus not entitled to Golding review.

       The defendant also claims that the denial of his motion to view infringed on his constitutional rights. The defendant did not raise this claim at trial and does not seek Golding review on appeal. For the same reasons outlined in part II, that claim is not entitled to review.