text:
    In re Steven G.

    (5613)
    Daly, Stoughton and Norcott, Js.
    Argued November 18, 1987
    decision released April 19, 1988

      Shelley White, with whom, on the brief, was Beth A. Merkin, for the appellant (respondent).

      Cathleen Mulligan Edwards, state’s advocate, for the appellee (state).

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

   Stoughton, J.

The respondent appeals from the denial of his motion to dismiss certain charges against him and his subsequent adjudication as a delinquent.

On February 3, 1986, the respondent was charged with criminal liability for robbery in the second degree in violation of General Statutes §§ 53a-8 and 53a-135 in connection with a theft that occurred at a natural foods store in New Haven on January 18 of that year. The petition alleged that the respondent “on or about 01/18/86 ... did aid another who committed a robbery on a victim at 1012 State Street, New Haven.” The respondent’s trial commenced on July 9,1986. The state called the complaining witness who testified that on the day of the incident she was working alone at a natural foods store in New Haven. Approximately twenty minutes before closing, two boys came into the store. One boy walked to the rear of the store and engaged the witness in conversation. The other boy remained at the front of the store, placed his hand on the cash register and began pushing the buttons. The complaining witness testified that when she noticed this, she walked back to the cash register. She opened the drawer to the cash register because she “felt threatened.” She testified that the boy who had touched the register earlier grabbed some money and that both boys. then ran from the store. She did not notice what, if anything, the boy who had spoken with her in the back of the store did during the transaction at the cash register. She was unable to make an in-court identification of the respondent.

The state’s other witness was the juvenile who participated in the robbery with the respondent. He testified that he and the respondent had a discussion about taking some money from the store and that their plan was to have him go up to the cash register while the respondent was to “lead up the back.” He further testified that the respondent approached the register, directed the complaining witness to open the drawer, and that the respondent grabbed some money from the drawer.

Cross-examination of this witness commenced, but had not been completed when the court recessed for that day. The trial was scheduled to resume on July 16, 1986. Before the trial began again, the state moved to amend the petition of delinquency to include four additional charges, conspiracy to commit robbery in the second degree; General Statutes §§ 53a-48 and 53a-135; larceny in the sixth degree; General Statutes § 53a-125b; conspiracy to commit larceny in the sixth degree; General Statutes §§ 53a-48 and 53a-125b; and criminal liability for larceny in the fifth degree. General Statutes §§ 53a-8 and 53a-125a. This motion was made pursuant to Practice Book § 1029 and made largely as the result of the juvenile’s testimony concerning the respondent’s actions that day. Over the respondent’s objection and exception, the court granted the motion. The case was continued for one week for completion of the trial.

The respondent moved to dismiss the four additional counts. When trial was to resume on July 23,1986, this motion was denied. Thereupon, the respondent entered a plea of nolo contendere to a reduced charge of conspiracy to commit robbery in the third degree, General Statutes §§ 53a-48 and 53a-136, the plea being specifically conditioned on his right to appeal the denial of his motion to dismiss, General Statutes § 54-94a. The respondent was then adjudicated a delinquent child.

On appeal, the respondent argues that the trial court erred in granting the state’s motion to amend the petition to include the four additional charges after the commencement of the trial on the original petition of delinquency pursuant to Practice Book § 1029, which governs amendments in delinquency proceedings. In brief, the defendant asserts that Practice Book § 1029 is unconstitutional to the extent that it allows amendments under circumstances that would not allow for amendments pursuant to Practice Book § 624, which governs amendments in adult criminal proceedings. The defendant maintains that the amendments to his petition of delinquency, coming as they did in the middle of trial, were violative of his right to adequate and timely notice of the charges against him and his right to effective assistance of counsel and the right to cross-examine witnesses against him as guaranteed by the sixth and fourteenth amendments to the United States constitution. We disagree.

Practice Book § 624 limits the right of the prosecuting authority to amend the information under certain circumstances after commencement of trial. This section provides that “[ajfter commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” (Emphasis added.) It is clear that such limitations are required so that a criminal defendant’s constitutional right to fair notice is not violated. State v. Jacobowitz, 182 Conn. 585, 438 A.2d 792 (1981). In sharp contrast, Practice Book § 1029 allows for amendments involving changed facts and circumstances “at any time” prior to the final adjudication of delinquency. There is no corresponding requirement that the state demonstrate good cause for such late amendments and, by its very terms, § 1029 allows additional and different charges to be brought. This section provides that a continuance shall be granted if the new facts require that the defendant be given additional time to respond adequately.

Juveniles are constitutionally entitled to notice, sufficiently in advance of any hearing, of the specific issues that they must meet. They are also entitled to notification of their right to counsel, the right to cross-examine any witnesses against them, and to be informed regarding their privilege against self-incrimination. In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1966). The notice provided a juvenile “must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ ” Id., 33. Certain formalities and safeguards which attend adult proceedings need not, however, be afforded juveniles accused of criminal behavior. McKiever v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (juveniles are not constitutionally guaranteed jury trials). There is no constitutional requirement that the rules of practice which govern juvenile delinquency proceedings mirror those which govern adult proceedings. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). The hearing provided a juvenile, however, “must measure up to the essentials of due process and fair treatment.” Id., 562; In re Gault, supra, 30. While Gault did not specifically address the constitutionality of mid-trial amendments to charges in delinquency proceedings, it does provide us with a basic standard of essential due process and fair treatment. We note that the Supreme Court of Texas has applied a similar analysis in determining whether midtrial amendments to petitions in juvenile delinquency proceedings constitute a denial of due process. In Carrillo v. State, 480 S.W.2d 612 (Tex. 1972), that court reasoned that Gault required that any amendment “must come at such time, and under such circumstances, as to be basically fair to the minor.” Id., 615. The court there found that the tendered amendments, occurring as they did toward the end of the trial, alleging a different owner of certain stolen property and the taking of additional property not set forth in the original petition and affording defense counsel until the next day to respond to the changed charges, surprised and prejudiced the defendant.

We apply this same fundamental fairness analysis in determining whether the midtrial amendments allowed by Practice Book § 1029 violated the respondent’s constitutional rights in terms of adequate and timely notice of the charges against him, his right to cross-examine the witnesses against him, and his right to effective assistance of counsel. That stricter provisions govern such amendments in adult proceedings is of no consequence in this analysis.

As early as February 3, 1986, the respondent was informed that he was being accused in connection with a theft incident which had occurred on January 18 at 1012 State Street in New Haven and that one other individual was involved. Thus, well before the hearing began, the respondent was apprised of the nature of the offense he allegedly committed. The state complied with the respondent’s pretrial discovery motion and the respondent’s counsel in fact stated to the court that her reading of the statement made by the coconspirator to the police established that there was enough evidence therein on which to base a conspiracy charge. During the. hearing, the testimony of the other juvenile clearly demonstrated that a conspiracy charge would have been warranted, as well as the larceny charge. For these reasons, the amendments could not have come as a complete surprise to the respondent, whose attorney was presumably familiar with the provisions of Practice Book § 1029. Lastly, the time, location and basic nature of the offense remained unchanged by the amendments.

As for the respondent’s right to cross-examine the witnesses against him, we are not persuaded that the respondent’s cross-examination of either the victim or the coconspirator would have differed had he been charged with the conspiracy counts and larceny at the outset of the hearing. As we have noted earlier, however, the hearing was continued and the opportunity for further cross-examination of the coconspirator existed. The defense still had its entire case to present at the time the amended petition was filed and nothing prevented the respondent from again calling the victim to the stand.

Finally, the record indicates that the respondent’s counsel was given the opportunity to conduct additional negotiations, which resulted in the respondent’s conditional plea to a reduced charge. Moreover, the court afforded the respondent the option of a continuance if his counsel believed one was necessary in light of the amendments.

There is no error.

In this opinion the other judges concurred.

       The respondent was being held pursuant to General Statutes § 46b-133 during the trial court proceedings. He urged that, under the circumstances, the availability of a continuance only served to present him with a “Hobson’s choice” between his liberty interest in freedom from incarceration and the need for sufficient time to prepare his defense. The respondent concedes, however, that the additional charges were not the primary reason for his detention. Moreover, Practice Book § 1032 requires that such detentions be reviewed every fifteen days. The record indicates that the court scheduled such a review between July 16 and 23.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Jay F. Clark v. Benjamin A. Muzio, Commissioner of Department of Motor Vehicles
    (5581)
    Spallone, O’Connell and Norcott, Js.
    Submitted on briefs February 5
    decision released April 26, 1988

      Michael J. Dodson, Aaron P. Slitt and Brian M. O’Connell, certified legal intern, filed a brief for the appellant (plaintiff).

      Joseph I. Lieberman, attorney general, and Cornelius F. Tuohy, John F. Gill and Carl J. Schuman, assistant attorneys general, filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment of the trial court dismissing his administrative appeal.

On October 6, 1984, Officer John P. Kraft, a member of the New Britain police department, investigated a collision in a church parking lot involving the plaintiff’s automobile. The plaintiff was identified by witnesses present at the time of the accident as the vehicle’s operator. On the basis of the information supplied by the witnesses and his own observations of the plaintiff, including the plaintiff’s performance of a field sobriety test, the officer arrested him for operating under the influence of liquor.

Kraft, pursuant to the provisions of General Statutes (Rev. to 1983) § 14-227b, requested that the plaintiff submit to a chemical analysis to determine the alcohol content of his blood. The plaintiff responded that he wanted to talk to his lawyer before deciding whether to submit to the test. The plaintiff’s response was construed by Kraft as a refusal to take the test until the plaintiff could consult an attorney.

After conducting a hearing and making the required affirmative findings of fact, the commissioner of motor vehicles ordered that the plaintiffs license be suspended for a period of six months. The plaintiff appealed the suspension to the Superior Court. In its memorandum of decision, the court, Hammer, J., found that the administrative record reasonably supported the commissioner’s findings that there was probable cause to arrest the plaintiff, that the arresting officer adequately warned the plaintiff of the possible consequences of his refusal to submit to the test, and that the plaintiff did not have a constitutional right to consult with an attorney before deciding whether he would take the test.

On appeal, the plaintiff claims that the trial court erred (1) in dismissing the plaintiffs administrative appeal on the ground that the plaintiffs request to communicate with an attorney under the circumstances in this case constituted a refusal, and (2) in dismissing the plaintiff’s administrative appeal on the ground that the failure of the plaintiff to be given a reasonable opportunity to contact an attorney violated the plaintiff’s constitutional rights under the sixth and fourteenth amendments to the United States constitution.

We hold that neither claim of error is sustainable. The commissioner found, as a factual matter, and the trial court concurred, that the request of the plaintiff to converse with an attorney before agreeing to take the chemical sobriety test constituted a refusal. Such a finding is fully supported by the facts and circumstances in this case and we will not retry this issue. On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981). We cannot say that the factual finding that the plaintiff refused to take the chemical sobriety test was clearly erroneous.

The plaintiffs second claim of error, that he was denied his constitutional rights to consult with an attorney, is also without merit. This issue is controlled by the holding in State v. Cichowski, 203 Conn. 97, 523 A.2d 503 (1987). “We, therefore, conclude that no sixth amendment right to counsel attached before the defendant decided to refuse to submit to any of the chemical sobriety tests.” (Footnote omitted.) Id., 102.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 14-227b (a) created an implied consent to submit to chemical testing on behalf of anyone operating a motor vehicle in this state. The remaining subsections of the provision, (b) through (h), detail the ramifications of an individual’s refusal to be so tested.
      This section was amended, effective October 1,1985, by Public Acts 1985, No. 85-596, § 2 (b), which added a requirement that the arrestee be “afforded a reasonable opportunity to telephone an attorney prior to the performance of [the chemical analysis] . . . .” General Statutes (Rev. to 1987) § 14-227b (b). Because the plaintiff’s arrest occurred prior to the effective date of this revision, however, this option was not available to the plaintiff.
      Although we do not find the amendment controlling in this case, we attach significance to its passage. A legislative amendment carries with it a presumption that it effects a change in existing law. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 21 n.6, 434 A.2d 293 (1980). We may safely presume that prior to the enactment of Public Acts 1985, No. 85-596, no right to consult with counsel existed under these circumstances.

       General Statutes § 14-227b (d) requires that the following questions be answered in the affirmative: “(1) Did the police officer have probable cause to arrest the person for operating a motor vehicle under the influence of intoxicating liquor or drug or both . . . (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis; and (4) was such person operating the motor vehicle.” If any of these inquiries are answered in the negative, the commissioner must reinstate the individual’s operator’s license.

       In his brief, the plaintiff supports Ms claim of an infringement of his federal constitutional right to due process, guaranteed by the fourteenth amendment, on only a vague notion of “fundamental fairness.” Given our Supreme Court’s holding in State v. Cichowski, 203 Conn. 97, 523 A.2d 503 (1987), we are not persuaded to find a right to counsel under the fourteenth amendment at a point earlier in time than the right to counsel attaches under the sixth amendment. It would be curious indeed to find that the due process clause grants an arrested driver “a right to consult with counsel before deciding whether to take a test that the law says he is required to take . . . .” Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512, 516-17 (Minn. 1985) (neither sixth nor fourteenth amendment of federal constitution grants right to consult with counsel to drunk driving suspect), appeal dismissed for want of a substantial federal question, 474 U.S. 1027, 106 S. Ct. 586, 88 L. Ed. 2d 567 (1985).


author: Stoughton, J. Bieluch, J.,

text:
    State of Connecticut v. Enrique C. Gonzalez
    (5807)
    Spallone, Bieluch and Stoughton, Js.

      (One judge dissenting)

    Argued December 17, 1987
    decision released April 26, 1988

      Robert P. Dutcher, for the appellant (defendant).

      Susan E. Gill, assistant state’s attorney, with whom, on the brief, was Frank Iannotti, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant was convicted, after a trial to a jury, of operating under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1985) § 14-227a (a). The defendant submitted a request to charge the jury on the offense of operating while impaired, General Statutes (Rev. to 1985) § 14-227a (b), as a lesser included offense of § 14-227a (a). The defendant now appeals from the trial court’s denial of his request.

The state offered evidence from which the jury might reasonably have found the facts as follows. On June 21, 1985, members of the Connecticut state police were running a spot check for drunk drivers on the eastbound lane of Interstate Route 95 at the West Haven toll plaza. At about 11 p.m., the defendant drove up in the exact change lane behind another car. A trooper was in each lane and talked to each operator as the operator paid the toll. Trooper Peterson saw the defendant feel around for the money for the toll, and he smelled a very strong odor of alcohol. He had not noticed the defendant’s manner of operation because he was watching the cars as they entered the lane and there was a car ahead of the defendant’s car. Peterson told the defendant of the spot check and turned back to make sure oncoming traffic stopped while he had the defendant drive off the highway to a parking area. Peterson asked the defendant to get out of his car, and noticed that the defendant held onto the door as he got out. The defendant was laughing and giggling and when he spoke his speech was slurred as if his tongue was heavy.. His choice of words was very confused. His walk was very unstable, his eyes were very glassy and bloodshot and his face was flushed. He fumbled while getting out his license and registration. The defendant agreed to take a number of field sobriety tests. The first test was a balance test in which Peterson asked the defendant to stand straight with his hands at his side and to lift one foot six inches and hold it there for about thirty seconds. The defendant performed the test with each foot, but was unable to hold either foot up more than a few seconds. Peterson administered a walking test which consists of walking a straight line placing one foot in front of the other heel to toe. He had the defendant try to take eight steps forward, turn around and take seven steps back. The defendant was unable to touch heel to toe and could not perform that test. Peterson then had the defendant tilt his head backward, close his eyes, point the index finger straight ahead and then touch his nose. The defendant was unable to point forward and missed his nose with both hands. Peterson then asked the defendant if he knew the alphabet and the defendant said that he did. The defendant said that he understood English, but when asked he was unable to start reciting the alphabet in English. Peterson then asked the defendant to recite the alphabet in Spanish, but the defendant was unable even to start it. Peterson noticed a strong odor of alcohol during the tests and he concluded that the defendant had failed to pass any of the sobriety tests. He concluded that the defendant was intoxicated and he placed him under arrest. Peterson then read the defendant his constitutional rights. The defendant said that he understood his rights and that he did not want to consult a lawyer and that he understood that his answers to questions would be used against him. He said that he had been drinking and that he had consumed six beers and a half-pint of rum in his car and had nothing to eat between New York City and the West Haven toll. Peterson saw several empty beer cans on the floor of the car and an empty rum bottle in a paper bag on the front seat. The defendant did not know the time or what town he was in.

The defendant testified that he could recite the alphabet in English from the letter “a” through the letter “f” and that he could do the same in Spanish. He said that on June 21, 1985, he worked for eight hours until 4:30 p.m. in West Haven. He drove to Wallingford to pick up his girlfriend and had a drink of Bacardi and an egg sandwich at her house. He left Wallingford with his girlfriend at about 5:30 or 5:45 p.m. to drive her to New York City. He stopped in West Haven and in Greenwich and had a drink of Bacardi in each place. He stopped “somewhere else” and bought a half-pint of Bacardi and two beers. When they arrived at their destination in New York, he did not want to go in, so he had one more shot of Bacardi and one beer. His girlfriend had the other beer and he gave her the bottle of rum because he did not want to have it in the car. After he left his girlfriend, he started back to Connecticut at about 8:30 p.m. He made one stop to buy a hamburger which he ate in the car. There were no beer cans or bottles in the car and he did not have a half-pint Bacardi bottle or any empty bottles in his car. He did not go to the exact change lane at the West Haven toll booth, and when he stopped the woman collecting the toll asked him if he could drive and told him to stay there. She told him not to move his car, and then Peterson came over and told him to drive to the parking lot. He got out of the car and he had his license, registration and insurance card all ready. Peterson told him to say the alphabet and he told Peterson that he just knew a couple of letters and he recited it from “a” through “f.” The defendant further testified that he did not tell Peterson anything at all about how - much he had been drinking and the alcohol he had consumed did not affect his driving in any way. He was able to walk without assistance, did not stumble or sway on his feet and did not feel that he had to hold onto the car to stand up. He explained that he could not get his legs straight after an hour and a half sitting down and his legs felt tired.

The defendant also called his sister to testify. She said that her brother had telephoned her on June 21, 1985, at about 11 or 11:30 p.m. and asked her to pick him up because he had been arrested. His speech was normal and clear. She drove to the West Haven toll area, arriving there around 12 or 12:30. Her brother was waiting in the parking lot, and he was laughing and smiling. He did not seem to her to be under the influence of alcohol and his speech was not slurred. She saw no problem with the way he walked. To her, he seemed only to be tired. She also testified that she did not know what “under the influence” meant and that she had not really paid attention to how her brother was walking.

The defendant argues, in brief, that driving while under the influence is to drive while one is impaired “to an appreciable degree.” 3 D. Wright, Connecticut Jury Instructions (2d Ed.) § 930, p. 1558. He argues that, since one cannot be under the influence without being impaired, impairment is a lesser included offense of operating while under the influence. Thus, the trial court erred in refusing to instruct the jury as the defendant requested. The sole issue before us is whether driving while impaired; General Statutes (Rev. to 1985) § 14-227a (b); is a lesser included offense of driving while under the influence. General Statutes § 14-227a (a). A criminal defendant is entitled to a lesser included offense instruction in those circumstances where “it is not possible to commit the greater offense . . . without having first committed the lesser; [and] there is some evidence . . . which justifies conviction of the lesser offense . . . .” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). We, therefore, must determine if it is possible to commit the crime of operating a motor vehicle while “under the influence” without necessarily operating while “impaired,” and whether there was evidence presented sufficient to convict the defendant of the latter. We turn to the language of the statute, the legislative history, and relevant case law in this analysis.

The intent of the legislature is to be ascertained from the language of the statute if it is plain and unambiguous. State v. Ellis, 197 Conn. 436, 442, 497 A.2d 974 (1985). The state contends that the statutory definition of the offense of operation while impaired authorizes a conviction only when an operator’s blood alcohol ratio falls between the prescribed limits of .07 and .1 percent. State v. Hancich, 200 Conn. 615, 629, 513 A.2d 638 (1986) (Shea, J., concurring).

General Statutes (Rev. to 1985) § 14-227a (b) provided that “[n]o person shall operate a motor vehicle . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.” (Emphasis added.) General Statutes (Rev. to 1985) § 227a (d) (3) provided that “evidence that at such time the ratio of alcohol in the blood was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight, shall constitute impairment within the meaning of this section . . . .” (Emphasis added.) The statute provides no definition of driving while impaired apart from the blood' alcohol parameters set forth above. The legislature has provided us no definition of impairment in a behavioral context, nor have our courts developed one.

In spite of these clear indications that prosecutions for operating while impaired are warranted only when evidence of a certain blood alcohol content exists, we will turn to the legislative history. In discussing Public Acts 1983, No. 83-534, Senator Howard T. Owens, Jr., stated: “It establishes a new offense of driving while impaired, blood alcohol content of above .07 or below .10 and imposes a penalty of an infraction.” 26 S. Proc., Pt. 13,1983 Sess., p. 4424. Additionally, Representative Christopher Shays stated: “It establishes a new offense called impairment. If someone’s blood alcohol content is between .07 and below .10 that is an offense, an infraction.” 26 H.R. Proc., Pt. 19, 1983 Sess., p. 6676.

From the foregoing, it is clear that the legislature did not intend to establish degrees of intoxication but to provide specifically that the infraction of operation while impaired occurred only when the ratio of an operator’s blood alcohol content fell within certain limits. If we were to read the statute as the defendant desires us to do, the intoxicated driver could seek to avoid the penalty for driving under the influence through simply refusing to take the test and then offering testimony contradicting that of the officer. We are unwilling to do this. There was no evidence that the defendant’s blood alcohol level fell within the parameters set forth in General Statutes § 14-227a (b), and hence the defendant fails the aspect of the Whistnant decision which requires that there be a sufficient evidentiary basis on which to instruct the jury on a lesser included offense. Whistnant, supra, 586-88.

Our Supreme Court had occasion to consider whether a lesser included offense instruction of operating while impaired was warranted in a prosecution for driving while under the influence. In State v. Hancich, supra, the defendant’s blood alcohol level was measured at .165 percent. The majority held that there was no error in the trial court’s refusal to instruct the jury on driving while impaired as a lesser included offense because the defendant had introduced no evidence from which a jury could have found that the defendant was impaired as opposed to under the influence. The court did not define impairment or how driving while impaired differs from driving while under the influence, nor did it expressly hold that driving while impaired was a lesser included offense of driving while under the influence.

Here, too, there was substantial evidence that the defendant was under the influence, although his own testimony was that the alcohol he had had to drink did not affect his driving in any way. His testimony conflicted sharply in many respects with that of the police officer who made the arrest, but the import of it was not that his ability to operate was impaired but that his driving was not affected at all by what he had had to drink.

We decline to formulate or adopt a behavioral definition of driving while impaired when the applicable statute, by its very terms, provides that one commits the offense only when one’s blood alcohol ratio falls between .07 and .1 percent. In the absence of such evidence, the trier of fact would necessarily have to engage in speculation as to whether a defendant’s behavior reflected a blood alcohol ratio between .07 and .1 percent. On these facts, there was no basis on which to instruct a jury on the offense of operating while impaired.

There is no error.

In this opinion Spallone, J., concurred.

Bieluch, J.,

dissenting. The sole issue before this court is whether, in the absence of blood alcohol evidence, operation of a motor vehicle while impaired by liquor, in violation of General Statutes (Rev. to 1985) § 14-227a (b), is a lesser included offense of operation under the influence of liquor, in violation of General Statutes (Rev. to 1985) § 14-227a (a). The majority opinion holds that since the operation while impaired statute, “by its very terms, provides that one commits the offense only when one’s blood alcohol ratio falls between .07 and .1 percent,” it cannot be a lesser included offense of operation under the influence of liquor. (Emphasis added.) I disagree with that conclusion.

The arrest of the defendant occurred on June 21, 1985. The statutes relating to driving after drinking have been undergoing progressive development in recent years. For that reason, we must confine our analysis of the question before us to the law in effect on the date of the offense. General Statutes (Rev. to 1985) § 14-227a (b) provided: “No person shall operate a motor vehicle . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.”

In determining the true meaning of a statute when there is genuine uncertainty as to how it should apply, identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute under litigation is helpful. State v. Gaines, 196 Conn. 395, 400, 493 A.2d 209 (1985); State v. Belton, 190 Conn. 496, 505-506, 461 A.2d 973 (1983); State v. Campbell, 180 Conn. 557, 562, 429 A.2d 960 (1980).

General Statutes (Rev. to 1985) § 14-227a (b) had its genesis in the 1983 legislative session as Substitute House Bill No. 6420. This bill, as reported favorably by the committee on the judiciary, was entitled “An Act Concerning the Penalties for Drunk Driving.” It created three degrees of the offense of operating a motor vehicle under the influence of liquor, with proportionate penalties, and varying with a person’s blood alcohol percentage as follows: first degree — .2 percent or more; second degree — .15 percent or more, but less than .2 percent; third degree — .1 percent or more, but less than .15 percent. The bill also created a fourth offense as follows: “A person is guilty of operating a motor vehicle while impaired when the evidence establishes that such person was operating a motor vehicle and at the time of the alleged offense the ratio of alcohol in the blood of such person was five-hundredths of one per cent or more of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight, and additional competent evidence is presented indicating that at the time of the alleged offense the ability of such person to operate the motor vehicle was impaired by the consumption of intoxicating liquor.” (Emphasis added.) The penalty provided was a fine of not more than five hundred dollars.

Other relevant new provisions were as follows: Evidence that the defendant refused to submit to a blood, breath or urine test requested under the law was admissible in any criminal prosecution for operation under the influence of liquor or while impaired by liquor. If any person, after being arrested for driving while impaired by the consumption of liquor, refused to submit to a blood alcohol test, the arresting officer was required to revoke his operator’s license immediately for twenty-four hours. A sworn report to the commissioner of motor vehicles must then be made setting forth “the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor . . . .” Thereafter, a suspension of license for ninety days followed, subject to an immediate administrative hearing to determine, inter alia, the existence of probable cause for the arrest. A subsequent refusal of a blood alcohol test called for a further sworn report of probable cause to arrest, and a similar hearing after suspension of the operator’s license.

The first consideration of the proposed legislation took place in the House of Representatives. During the debate, several amendments were adopted to give the bill its final form as Public Acts 1983, No. 83-534, of which General Statutes (Rev. to 1985) § 14-227a (b) was an integral part. House amendment schedule “A” was the most comprehensive. By this amendment, the proposed three degrees of operation under the influence of liquor were abolished. Instead, the amendment provided for increased penalties upon conviction for first and subsequent offenses.

The most important change was the adoption of what later became General Statutes (Rev. to 1985) § 14-227a (b). For the per se violation of operation under impairment, the threshold blood alcohol level was increased from .05 to more than .07 percent, and its criminal classification was reduced from a misdemeanor to an infraction. The judiciary committee’s proposal requiring additional evidence of impaired driving was removed in amendment schedule “A.” Evidence of a refusal to submit to a blood alcohol test was now admissible in the criminal prosecution of operation under the influence only. Continued in this amendment were the provisions that the officer make a sworn report to the commissioner of motor vehicles of his grounds to believe probable cause existed to make the arrest, and for proof of such probable cause at the subsequent suspension hearing. Such report and proof were also required upon a subsequent refusal to submit to a blood alcohol test.

The only remarks on the floor during the consideration of this amendment were these of Representative Christopher Shays: “It establishes a new offense called impairment. If someone’s blood alcohol content is between .07 and below .10, that is an offense, an infraction.” 26 H.R. Proc., Pt. 19, 1983 Sess., p. 6676.

Of significance in this legislative review is the adoption of house amendment schedule “D.” This was a further amendment to schedule “A” adopted earlier and provided in relevant part as follows: “In any criminal prosecution for a violation of [operation under the influence of liquor or operation while impaired], evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied.” (Emphasis added.) The legislative proceedings contain no explanation for the extension to prosecutions for operation while impaired of this evidential rule, originally included in the committee bill, but previously excluded by amendment schedule “A.”

Also relevant to our analysis of this legislative history of § 14-227a (b) is house amendment schedule “G,” which was rejected by that body. This amendment sought to establish a “per se” violation standard for operating a motor vehicle under the influence of intoxicating liquor “while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.” During the debate on this proposal, Representative Robert Farr made these remarks: “[I]n the bill in chief, we in fact have established a per se law. The bill in chief says that .07 to or below .1 is per se, a violation. And that’s all we are doing here is establishing .1 or above as a violation.” 26 H.R. Proc., Pt. 19, 1983 Sess., p. 6850.

Further relevant to our legislative review is house amendment schedule “L,” which failed of adoption. This amendment proposed to limit the definition of driving while impaired by restoring the two-fold requirement of proof originally proposed in the committee bill, but rejected by amendment schedule “A.” It provided as follows: “A person is guilty of operating a motor vehicle while impaired when the evidence establishes that such person was operating a motor vehicle and at the time of the alleged offense the ratio of alcohol in the blood of such person was more than eight-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight, and additional competent evidence is presented indicating that at the time of the alleged offense the ability of such person to operate the motor vehicle was impaired by the consumption of intoxicating liquor.” (Emphasis added.)

Upon receipt of Substitute House Bill No. 6420, as amended by the House of Representatives, the Senate adopted a further amendment not relevant to driving while impaired. In the debate on approval of the bill with all amendments, Senator Howard T. Owens, Jr., made the following explanatory remarks: “It establishes a new offense of driving while impaired, blood alcohol content of above .07 or below .10 and imposes a penalty of an infraction. I can say that the original plan was to make that a criminal misdemeanor. I thought and someone had talked about a .05 to a .10 level and I thought that could be two or three beers and maybe that’s not what we were trying to come at and to not make it where they have a criminal penalty, .07 to below .10 is obviously impaired but does not reach the test by any expert’s opinion of being under the influence or being intoxicated.” 26 S. Proc., Pt. 13, 1983 Sess., p. 4424. As amended by the Senate, the bill was finally approved by the House of Representatives on June 7, 1983. Upon signing by the Governor, the bill became Public Acts 1983, No. 83-534.

The precise question raised by this appeal is one of first impresssion in this state. It is helpful, therefore, to examine the particular statute in effect, its language and its legislative development. See Penfield v. Jarvis, 175 Conn. 463, 466, 399 A.2d 1280 (1978). In construing statutes, courts consider their legislative history, their language, their purpose, and the circumstances surrounding their enactment. We look to the history of the law, its language, considered in all its parts, the mischief the law was designed to remedy, and the policy underlying it. Kellems v. Brown, 163 Conn. 478, 505-506, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973).

The cardinal rule is that statutes are to be construed so as to carry out the expressed intent of the legislature. While the intent of the statute must be ascertained from the language used if it is clear and unambiguous, where the language is of doubtful meaning, the statute is to be construed in the light of all of its provisions, the object which it seeks to accomplish and all other relevant circumstances. Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 46, 301 A.2d 244 (1972); Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978). The debate surrounding passage of a law may be an aid to statutory construction if it sheds light on the legislature’s purpose. The title and stated purpose of the legislation are also valid aids to construction. Anderson v. Ludgin, supra, 545. No word in a statute should be treated as superfluous or insignificant. Kulis v. Moll, 172 Conn. 104, 111, 374 A.2d 133 (1976). No part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a statute. Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978). Insofar as it is possible, the entire enactment is to be harmonized, each part made operative. State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978).

Applying these principles of statutory construction to the enactment of Public Acts 1983, No. 83-534, I reach the conclusion that in the absence of blood alcohol evidence, operation of a motor vehicle while impaired by liquor, in violation of General Statutes (Rev. to 1985) § 14-227a (b), is a lesser included offense of operation under the influence, in violation of § 14-227a (a).

Substitute House Bill No. 6420 was reported favorably by the judiciary committee for adoption by the legislature. Its purpose was defined in its title, “An Act Concerning the Penalties for Drunk Driving.” House Bill No. 6420, upon its introduction, contained no provision for driving while impaired when it was originally referred to the judiciary committee. That section was first inserted by the committee in the substitute bill that it reported favorably for passage.

The substitute bill originally restructured the offense of “drunk driving” into four degrees, carrying proportionate penalties, and varying numerically with a person’s decreasing blood alcohol percentage in this sequence: first degree — .2 percent or more; second degree — .15 percent or more, but less than .2 percent; third degree — .1 percent or more, but less than .15 percent. The “fourth degree,” however, was not so called. Because it classified an offense relating to a blood alcohol percentage of under .1 percent, which is generally considered to be the blood alcohol level needed for the offense of driving under the influence of liquor, the “fourth offense or degree of drunk driving” was designated as “operating a motor vehicle while impaired.” This offense was to apply when the blood alcohol ratio fell between .05 percent or more, but less than .1 percent “and additional competent evidence is presented indicating that at the time of the alleged offense the ability of such person to operate the motor vehicle was impaired by the consumption of intoxicating liquor.” (Emphasis added.) The new offense was a misdemeanor carrying a maximum fine of five hundred dollars.

As initially proposed by the judiciary committee, conviction for operation while impaired required the stated amount of blood alcohol plus other evidence of impaired driving. House amendment schedule “A” eliminated the three degrees of operation under the influence of liquor and redefined the new offense of driving while impaired by removing the second requirement of “additional competent evidence” of impaired driving.

Section 1 (a) reverted to the then existing offense of operation of a motor vehicle “while under the influence of intoxicating liquor or any drug or both.” The offense continued not to be further defined. Subsection (b) provided that no person shall operate a motor vehicle “while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor.” Such “impaired driving,” like “driving under the influence,” was not defined, except that a “per se” violation was contained in the provision that “[a] person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.”

I disagree with the majority opinion in its conclusion that this “per se” standard is the only manner in which the offense may be committed. The specified prohibition was against driving while one’s ability to operate was impaired by the consumption of intoxicating liquor, and not just against driving with a blood alcohol percentage above .07 and below .1 percent, which is merely one manner of violating the statute, now made an infraction. That was the thrust of the legislation. That was the intent of the legislature.

Other provisions of amendment schedule “A” written into Public Acts 1983, No. 83-534, confirm my conclusion of error below. Evidence of a blood alcohol test was admissible under certain conditions as follows: (1) a reading above .05, but less than .1, percent could be considered with other evidence in determining operation under the influence of liquor; (2) a reading above .07, but less than .1, percent “shall constitute impairment within the meaning of this section”; (3) a ratio of .1 percent or more of alcohol “shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section.”

Section 2 of schedule “A” amended the implied consent to blood test law. General Statutes (Rev. to 1985) § 14-227b. It now applied to an arrest for driving while impaired by the consumption of liquor. In the event of a test refusal, the police officer was required to make a sworn report setting forth “the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor . . . .’’(Emphasis added.) The administrative hearing thereafter, relative to the suspension of a license for such test refusal, required a determination, inter alia, of whether “the police officer [had] probable cause to arrest the person for operating a motor vehicle . . . while his ability to operate such motor vehicle [was] impaired by the consumption of intoxicating liquor.” Upon a subsequent refusal of blood alcohol test, a similar report and administrative inquiry were required. Such a sworn report and administrative finding of probable cause for arrest in the event of a blood alcohol test refusal must of necessity relate to an arrest for operation while impaired based upon facts other than the proscribed blood alcohol percentages. Of similar import and conclusion is the provision adopted by house amendment schedule “D,” providing that in the event of prosecution for a violation of operation under the influence of liquor or operation while impaired, evidence of a blood alcohol test refusal was admissible.

The only logical conclusion to be drawn from this legislative history is that a violation of the impaired driving statute, while provable per se by an operator’s blood alcohol ratio of more than .07, but less than .1, percent, may be established by other competent evidence in the same manner as a violation of operation under the influence of intoxicating liquor may be proven without a blood alcohol report. The interrelationship of the various amendments adopted by the legislature and incorporated into the final bill show a harmony of purpose and design to extend the scope of “drunk driving” offenses, but to a lesser degree ofproof and punishment, to driving while one’s ability to operate a motor vehicle is impaired by the consumption of intoxicating liquor, whether provable by a blood alcohol test or by other competent evidence.

The operation of a motor vehicle while under the influence of intoxicating liquor within the prohibition of General Statutes § 14-227a (a) “has been construed to require ‘that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.’ Infeld v. Sullivan, 151 Conn. 506, 509, 199 A.2d 693 [1964].” Higgins v. Champ, 161 Conn. 200, 203, 286 A.2d 313 (1971); see State v. Hancich, 200 Conn. 615, 622, 513 A.2d 638 (1986). Driving while one’s ability to operate is impaired by the consumption of intoxicating liquor has not been defined, except for the statutory per se violation by a blood alcohol ratio of more than .07, but less than .1, percent of alcohol, by weight. State v. Hancich, supra, 620. Our courts have not had occasion before this case to define the full meaning of driving while one’s ability to operate is impaired by the consumption of intoxicating liquor.

Section 14-227a (b) prohibiting the operation of a motor vehicle while impaired by the consumption of intoxicating liquor is a unique law. A related statute, however, is found in Michigan Statutes Annotated § 9.2325 (2), which provides: A person shall not “operate a vehicle . . . when, due to consumption of intoxicating liquor . . . he has visibly impaired his ability to operate the vehicle. Where a person is charged with [driving while under the influence of intoxicating liquor], a finding of guilty shall be permissible under this section.” The Michigan Supreme Court has approved the following charge to express the legislative intent necessary for a conviction under its impaired driving law: “ ‘The distinction between the crime of driving under the influence of intoxicating liquor and the lesser included offense of driving while ability is visibly impaired is the degree of intoxication which the people must prove. To prove driving under the influence of intoxicating liquor, the people must prove that defendant’s ability to drive was substantially and materially affected by consumption of intoxicating liquor. To prove driving while ability is visibly impaired, the people must prove that defendant’s ability to drive was so weakened or reduced by consumption of intoxicating liquor that defendant drove with less ability than would an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be visible to an ordinary, observant person.’ ” People v. Lambert, 395 Mich. 296, 305, 235 N.W.2d 338 (1975).

For the above reasons, I would find that in the absence of blood alcohol evidence, the operation of a motor vehicle by a person while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, in violation of General Statutes (Rev. to 1985) § 14-227a (b), is a lesser included offense of operation under the influence of liquor, in violation of General Statutes (Rev. to 1985) § 14-227a (a).

Accordingly, I would find error.

       “[General Statutes (Rev. to 1985)] Sec. 14-227a. operation while UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) operation while under the influence. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while under the influence of intoxicating liquor or any drug or both.”

       “[General Statutes (Rev. to 1985)] Sec. 14-227a. . . . (b) operation while impaired. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.”

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       We note that General Statutes (Rev. to 1985) § 14-227a (f) provided that evidence of a defendant’s refusal to submit to a blood, breath, or urine test shall, under certain circumstances, be admissible in prosecutions under subsection (a) or (b) of that section. This, the defendant maintains, indicates that the legislature intended the offense of impairment to be provable by other evidence. It is equally likely, however, that the legislature knew that blood alcohol evidence which indicates impairment may come from sources other than a test administered by the police, such as a test conducted by a medical expert at the defendant’s request. Impairment could thus be established even though the defendant elected not to take the test provided by the police.

       Such a “per se” violation of operating a motor vehicle while under the influence of intoxicating liquor was adopted in 1985 by Public Acts 1985, No. 85-596, § 1.


author: Norcott, J.

text:
    Jeff Cholewinski v. John Conway
    (5935)
    Spallone, Daly and Norcott, Js.
    Argued March 8
    decision released April 26, 1988

      Richard D. O’Connor, with whom was Frederick L. Dorsey, for the appellant (defendant).

      Jejf Cholewinski, pro se, the appellee (plaintiff), with whom, on the brief, was Ernest C. LaFollette.

   Norcott, J.

The defendant appeals from the judgment for the plaintiff in an action for damages which was originally brought in the small claims court and transferred to the regular session docket. The defendant claims that the trial court erred (1) by rendering a default judgment against him on January 13, 1987, in a trial which was allegedly assigned in violation of Practice Book §§ 261, 270 and 271, (2) by vacating the January 20,1987 nonsuit against the plaintiff ordered by another trial judge, and (3) by denying the defendant’s motion to open the default judgment. We find error in part.

The following facts are relevant to this appeal. On September 22, 1986, the plaintiff filed a small claims action in Bridgeport to recover $500 he allegedly paid the defendant to get his job back. The plaintiff alleged that he had been terminated from Brake Systems, Inc., and that the defendant, the manager of employee relations, had promised to get the plaintiff reinstated to his job. The plaintiff further alleged that the defendant had not only failed to get him reinstated but also demanded more money. On October 29, 1986, the case was transferred from the small claims docket to the regular session docket of the Superior Court in Bridgeport.

On December 10, 1986, the matter was initially assigned for trial but was dismissed for failure of the plaintiff to appear at the calendar call. The plaintiff then filed a pro se motion to open. In support of the motion, the plaintiff alleged as the reason for his nonappearance that he “did not come to the calendar date because [he] did not get a hearing date in the mail.” In an affidavit attached to the motion to open a coworker swore to the facts alleged in the plaintiff’s complaint. The plaintiff’s motion to open was granted on December 22, 1986. On that same date, the trial court, Spear, J., assigned the case to trial on January 13,1987, informing both counsel from the bench that “the case goes forward on that day. It will go to trial.”

By January 12,1987, the case did not appear on the trial list for the next day. The defendant contends that on January 12 his counsel contacted the case flow office of the Bridgeport Superior Court and was told that no trial had been scheduled for January 13 and that he would receive notice of the new scheduling within the next two weeks. On January 13,1987, the defendant did not appear at trial and the trial court, Spear, J., rendered a default judgment against him. After hearing testimony from the plaintiff, the court then ordered judgment for damages of $500 plus costs against the defendant.

On January 16, 1987, the defendant received an assignment of court cases scheduling the case for a January 20,1987 trial date. On January 20, the defendant, unaware of the default judgment, appeared before the trial court, Berdon, J., to whom the case had been assigned for trial. The plaintiff did not appear, and Judge Berdon, equally unaware of the default judgment rendered by Judge Spear on January 13,1987, entered a nonsuit against the plaintiff.

This confusing procedural scenario continued until January 23, 1987 when the defendant received yet another assignment of court cases scheduling the trial for January 28, 1987. On January 28 both counsel appeared before the trial court, Spear, J., once again, and the court vacated the nonsuit against the plaintiff and left intact the January 13,1987 default judgment against the defendant.

Thereafter, on February 4,1987, the defendant filed a motion to open the default judgment against him. In support of the motion, the defendant cited procedural confusion and mistake on the part of the clerk of the court’s office as the reason for his nonappearance on January 13, 1987. In addition, the defendant alleged that he had, “at the time of the said judgment entered, and has, a good defense to the Plaintiff s action . . . .” On March 2, 1987, the court denied the defendant’s motion to open the judgment, and the defendant took the present appeal.

We find that the resolution of the defendant’s third claim of error is dispositive of this appeal. The essence of the defendant’s third claim is that in denying the defendant’s motion to open the judgment the trial court abused its discretion in finding that the defendant was not prevented by mistake, accident or other reasonable cause from making a defense to the plaintiff’s action. We agree.

Our review of a denial of a motion to open a default judgment rests on the requirements of General Statutes § 52-212. Practice Book § 377 is almost identical to the statutory language. To obtain relief from a judgment rendered after default a two pronged test must be satisfied. “The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense.” Triton Associates v. Six New Corporation, 14 Conn. App. 172, 174, 540 A.2d 95 (1988); see also Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., 196 Conn. 233, 235, 492 A.2d 159 (1985). “In granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion.” Pantlin & Chananie Development Corporation v. Hartford Cement & Building Supply Co., supra, 235.

Our review first reveals that the defendant did show that at the time of the default judgment a good defense existed. We next turn to the question of whether the defendant was prevented by mistake, accident or other reasonable cause from making that defense.

“It is the defendant’s burden to show that [he] was prevented by mistake, accident or other reasonable cause unrelated to its own negligence from appearing in the case prior to the rendition of judgment. Manchester State Bank v. Reale, 172 Conn. 520, 525, 375 A.2d 1009 (1977).” Triton Associates v. Six New Corporation, supra, 177. The entire procedural record below abounds with confusion and mistake. The confusion and clerical mistake which caused the defendant to question whether the case was to be tried on January 13,1987, was in essence no different from that which caused the plaintiff’s failure to appear on December 10, 1986. While we are respectful of the need for the trial court to control its docket and demand the presence of counsel ordered before it, we fail to see why the defendant here should be penalized for the clerical confusion in the clerk’s office which came about following his counsel's efforts to reassure himself of the trial date. Under the circumstances of this case, fraught with confusion and procedural deficiency, we find that the trial court’s denial of the defendant’s motion to reopen the default judgment was unreasonable and erroneous.

Because of our disposition of the defendant’s third claim of error we need not address the claim that the trial court erred in rendering the default judgment on January 13,1987. With respect to the defendant’s second claim, we do find, however, that the court did not err in vacating the nonsuit unwittingly ordered against the plaintiff by a second trial court where that court, Berdon, J., had no knowledge of the prior default judgment against the defendant.

There is error in part, the order denying the defendant’s motion to open the default judgment is set aside, and the case is remanded with direction to open the default judgment against the defendant and to proceed according to law.

In this opinion the other judges concurred.

       The record reveals that on two occasions prior to January 13,1987, the defendant had appeared in court with his counsel only to have the matter continued.

       On March 2, 1987, at the hearing on the defendant’s motion to open judgment, the following colloquy between the court and defendant’s counsel took place:
      “The Court: All right. I have read the motion.
      “[Defense Counsel]: Thank you, Your Honor. I believe that reasonable cause does exist. One time out of the five times this case has been on the docket since December 22nd, Your Honor, that we weren’t here was the only time it wasn’t calendared and we were told by the case flow officer not to be here. I understand, Your Honor, that you had indicated in December that the trial would be set for January 13th. But not having received the calendar and having been told by the case flow office that the case would not be tried the 13th and we would be getting a calendar the next week, which in fact we did, was the reason that nobody from the defendant was here. The four other times the case was calendared we were here.
      “The Court: I have had this problem before. I try to make it as clear as possible when people are standing in front of me. And I want them in front of me so I can tell them on the record what the court trial date is. I think I said it as effectively as I am capable of saying it to people in front of me that this case would be tried January 13th. This gentleman is pro se and I like to have pro se parties in front of me and tell them the date on the record. I made it absolutely clear that January 13th was the trial date. I am sure I made this gentleman repeat the date and the time to me. I assume with the lawyer I didn’t have to do that. And it was not a question of you will get a calendar; I said January 13th is the trial date. I don’t know how else I could have said it.
      “[Defense Counsel]: Well, Your Honor, I think that with that in mind if the next time the case flow office tells us there is not going to be a trial we will disregard that information.
      “The Court: No. No. The case flow can’t tell you there won’t be a trial; only the judge will do that. I told the lawyer who was in front of me that the case will be tried on January 13th.
      “[Defense Counsel]: I understand that, Your Honor. But I still think that there is reasonable cause for not appearing on that date.
      “The Court: Why would there be reasonable cause when I told you the case is going to be tried?
      “[Defense Counsel]: Well, first of all the lawyer who was before Your Honor was not the lawyer who is trying it. I am sure he conveyed the fact that the 13th was the trial date set by Your Honor, but when the attorney who was handling the case called to confirm that date and was channeled to the case flow office who told him that there was not going to be a trial that day and that he’d be getting a calendar, having been here two occasions before with the defendant’s witnesses only to have to go home, it was I think prudent on his part not to have everybody here the third time having been told not to come.
      “The Court: No. It was not very prudent on the part of the lawyer in front of me because I tell people, I am not being facetious with them when I tell them to repeat the court date, the time and place back to me. And I did that here.
      “The motion is denied. I don’t know how else I Can do it. You may have an exception.
      “[Defense Counsel]: Thank you, Your Honor.”

       “[General Statutes] Sec. 52-212. reopening judgment upon default OR nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motions shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.”

       Practice Book § 377 provides: “opening judgment upon default or nonsuit. Any judgment rendered or decree passed upon a default or non-suit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any part or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion.”

       In support of the motion to open, the defendant denied and alleged that the plaintiff had attempted to bribe him in violation of General Statutes § 53a-160. The defendant further alleged that the amount tendered to him by the plaintiff was not $500 but $200.


author: Per Curiam.

text:
    Henry C. Werba v. Rosemarie Werba
    (5705)
    Spallone, Daly and Stoughton, Js.
    Argued March 10
    decision released March 30, 1988

      Jean L. Welty, with whom, on the brief, was Sara D. Eldrich, for the appellant (defendant).

      James R. Greenfield, with whom was Helen D. Murphy, for the appellee (plaintiff).
   Per Curiam.

The defendant is appealing from the judgment rendered in a dissolution action.

The initial question before us is whether the factual finding of the state trial referee, that the separation agreement entered into by the parties was fair and equitable, was clearly erroneous. A further question raised by this appeal is whether the factual findings by the trial court, after a hearing held on a motion to open, were also clearly erroneous. We respond in both instances in the negative.

An appellate court may not retry facts and its duty upon review of a claim which challenges the factual basis of the trial court’s decision is limited to a determination of whether the trial court’s judgment was clearly erroneous in this respect or otherwise contrary to law. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B. C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984).

Our review of the record, transcripts and briefs clearly discloses a sufficient basis to sustain the decision of both the state trial referee and the trial court.

There is no error.


text:
    State of Connecticut v. James Harris
    (6141) (6142)
    Spallone, O’Connell and Norcott, Js.
    Argued February 3
    decision released April 26, 1988

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, were Frank M. DAddabbo and James G. Clark, assistant state’s attorneys, for the appellant (state).

      Susan O. Storey, assistant public defender, for the appellee (defendant).
   Norcott, J.

The state appeals from the judgments of the trial court dismissing the informations charging the defendant with one count of sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (1), two counts of sexual assault in the third degree, in violation of General Statutes § 53a-72a (a) (1) and (2), and three counts of injury or risk of injury to a minor, in violation of General Statutes § 53-21. The dispositive issue on appeal is whether the trial court erred in concluding that the speedy trial provisions of General Statutes § 54-82c apply to this defendant. We find error.

The facts relevant to the defendant’s claims are as follows. On May 12,1986, the defendant was charged with sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (4) and risk of injury to a minor, in violation of General Statutes § 53a-21, in connection with a series of sexual assaults occurring between 1978 and 1985. On June 9,1986, the defendant was again charged with the crime of risk of injury to a minor, this time in connection with assaults occurring on divers dates between 1983 and 1984. At the time these charges were filed, the defendant was already serving a sentence in the Enfield correctional facility for a conviction of assault in the first degree, in violation of General Statutes § 53a-59.

On November 14, 1986, while still serving the sentence for assault in the first degree, the defendant made a request for a speedy trial pursuant to General Statutes § 54-82c. The request was given to the prison records supervisor, Patricia Dion, who completed the motion for speedy trial and a warden’s certificate detailing the defendant’s prisoner status and good time credit. Dion then forwarded the motion via certified mail to both the clerk 6f the court in which the charges against the defendant were pending and the office of the prosecuting attorney. The trial court found that the motion was received on November 21, 1986.

On March 19,1987,118 days after the motion for new trial was deemed to have been received, the defendant was discharged with respect to his sentence for first degree assault. The defendant, however, remained in custody at the Hartford community correctional facility in lieu of bond on the pending charges.

On April 2,1987, the state filed two substituted informations charging the defendant with one count of sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (1), two counts of sexual assault in the third degree, in violation of General Statutes § 53a-72a (a) (1) and (2), and three counts of injury or risk of injury to a minor, in violation of General Statutes § 53-21. The defendant responded by filing a motion to dismiss these charges pursuant to General Statutes § 54-82d claiming that the state had violated General Statutes § 54-82c by failing to try him within 120 days of the filing of his motion for speedy trial.

On May 27,1987, the trial court granted the defendant’s motion to dismiss. The trial court, in its memorandum of decision, concluded that “the plain meaning of [General Statutes § 54-82c] is that this particular speedy trial mechanism applies to any prisoner who has outstanding charges pending against him during the term of his imprisonment, regardless of when he is released.” We disagree.

General Statutes § 54-82c (a) provides in relevant part: “Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information.” This statute is part of a comprehensive statutory scheme designed to ensure that all persons charged with a crime in this state will be afforded a speedy trial. In enacting General Statutes § 54-82c, the legislature clearly felt that those persons who had pending untried informations against them while serving criminal sentences were entitled to speedier trials than others who were charged with crimes. See General Statutes § 54-82m.

The rationale for affording speedier trials to those serving criminal sentences was recently explored by this court in State v. Foshay, 12 Conn. App. 1, 530 A.2d 611 (1987). In Foshay, we noted: “General Statutes § 54-82c is patterned after a similar provision codified at General Statutes § 54-186 and known as the Interstate Agreement on Detainers [hereinafter the I AD], which applies to prisoners who are incarcerated in one jurisdiction and face charges in another. A primary purpose behind both detainer statutes is to alleviate problems posed by outstanding detainers on efforts at rehabilitation.” Id., 11. We further noted that in legislative hearings on the bill which was to become General Statute § 54-82e, Representative Marjorie D. Farmer noted that “ ‘[a]ny program of rehabilitation which is undertaken in a penal institution is ineffective if a man has time hanging over his head.’ Conn. Joint Standing Committee Hearings, General Law, Pt. 1,1957 Sess., p. 229. Similarly, proponents of the Interstate Agreement noted that the uncertainty and anxiety accompanying outstanding charges often inhibits prisoner response to training programs and thwarts efforts at rehabilitation.” Id.

The concern for rehabilitation, clearly relevant to defendants who are serving a prison sentence, is not similarly applicable to those awaiting trial even if those persons are incarcerated in lieu of bond. As other courts have noted, when a defendant is not serving a criminal sentence there is no rehabilitation process to upset. See Crooker v. United States, 814 F.2d 75, 77 (1st Cir. 1987); Lublin v. Johnson, 628 F. Sup. 1496 (E.D.N.Y.1986).

In this case, the defendant was serving a criminal sentence when the charges against him were originated but was released before the 120 day time limit imposed by General Statutes § 54-82c had expired. Upon his release, the defendant acquired the status of a pretrial detainee. Thus, once the defendant was released there was no compelling reason why he should have been afforded a trial within 120 days.

Nonetheless, the defendant asserts that the language used in General Statutes § 54-82c should be strictly construed in his favor. While it is true that criminal statutes are to be strictly construed in favor of the defendant; State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); it is a basic proposition of law that “[a] statute should be construed so as to give effect to the legislative intent, while keeping in view the object of the statute.” Stephen Reney Memorial Fund v. Old Saybrook, 4 Conn. App. 111, 113, 492 A.2d 533 (1985). In this case, the legislative intent is clear. The speedy trial provisions of General Statutes § 54-82c shall apply only to thosé whose rehabilitation would be upset by pending charges. Thus, the defendant was not entitled to invoke the provisions of General Statutes § 54-82c.

We note at this point that the defendant’s right to a speedy trial under the General Statutes was not totally abrogated once he was released. Because the defendant was not entitled to a speedy trial under General Statutes § 54-82c, yet was still incarcerated, he was entitled to a trial within eight months from the date of the filing of the information. General Statutes § 54-82m.

There is error, the judgments of the trial court dismissing the informations against the defendant are set aside and the cases are remanded with direction that the charges against the defendant be reinstated.

In this opinion the other judges concurred.

       General Statutes § 54-82c provides in pertinent part: “prisoner’s right to speedy trial on pending charges, (a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.”

       The state also challenges the trial court’s conclusion that the motion was received by the prosecuting attorney. Because our ruling on the first issue, however, is dispositive of the appeal we need not address this issue.

       General Statutes § 54-82d provides: “dismissal of charges on failure to grant prisoner speedy trial. If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”

       General Statutes § 54-82m provides: “rules re speedy trial to be ADOPTED BY JUDGES OF SUPERIOR COURT EFFECTIVE JULY 1, 1985. In accordance with the provisions of section 51-14, the judges of the superior court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1,1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1).”


text:
    Victoria Kapilotis v. Shop Rite Supermarket, Inc.
    (5666)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 11
    decision released April 4, 1988

      Jack G. Steigelfest, with whom, on the brief, was James T. Haviland II, for the appellant (defendant).

      Eugene K. Swain, with whom, on the brief, was Kerin M. Woods, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from a judgment rendered by the trial court following a jury verdict for the plaintiff. The plaintiff brought this negligence action for injuries suffered when she slipped in the defendant’s supermarket on an uneven section of an area rug that was raised due to the presence of a piece of candy lodged underneath the rug.

The defendant claims that the trial court erred in denying its motion for a directed verdict and in refusing to set aside the verdict on the ground that there was insufficient evidence of constructive notice to the defendant of the uneven condition of the rug. Whether the defendant had constructive notice of this condition turns on the question of whether the condition had existed for a length of time sufficient for the employees of the defendant, in the exercise of due care, to have discovered the defect in time to have remedied it. McCrorey v. Heilpern, 170 Conn. 220, 221, 365 A.2d 1057 (1976); Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 432, 505 A.2d 1272 (1986). There was testimony at trial that the type of candy lodged under the rug was displayed near the rug, that the area around the rug was swept several times daily, that on the day the accident occurred the rug itself had been turned over during such cleaning, and that the raised portion of the rug was visible to the plaintiff upon arising from her fall. Although there was not an abundance of evidence, there was sufficient evidence presented from which the jury could reasonably have concluded that the candy had been lodged under the rug for some time, and that such condition would have been discovered by a reasonable inspection by the defendant. Morris v. King Cole Stores, Inc., 132 Conn. 489, 494, 45 A.2d 710 (1946); Schwarz v. Waterbury Public Market, Inc., supra, 432-33.

The defendant also claims that the trial court erred in failing specifically to charge the jury that they should return a verdict for the defendant if they found no evidence that the defendant had notice of the condition of the rug and an opportunity to remedy that condition. We disagree. The trial court clearly instructed the jury that, in order to reach a verdict for the plaintiff, it was necessary to find that the defendant had either actual or constructive notice of the unsafe condition of the rug. Although the trial court’s instructions to the jury may not have been phrased precisely to the defendant’s liking, there is no error when, as here, the charge states the law correctly. Tripp v. Anderson, 1 Conn. App. 433, 438, 472 A.2d 804 (1984).

There is no error.

       The plaintiff argues that we should not review this claim due to the defendant’s failure to file a verbatim statement of all relevant portions of the jury charge and the relevant exceptions to the charge, as required by Practice Book § 4065 (d) (2). There is no merit to this argument as the defendant has filed an appendix to its brief that complies with § 4065 (d) (2). We will not review, however, an additional claim of error raised by the defendant regarding the jury instructions due to the defendant’s failure to take exception to the jury charge as required by Practice Book § 315.


author: Borden, J.

text:
    William C. Lyon v. Adgraphics, Inc., et al.
    (5682)
    Borden, O’Connell and Stoughton, Js.

      Argued February 11
    decision released April 26, 1988

      Susan M. Cormier, with whom were Wesley W. Horton and Martin M. Rutchik, for the appellants (defendants).

      Lloyd L. Langhammer, with whom, on the brief, was Andrew Brand, for the appellee (plaintiff).
   Borden, J.

The defendants appeal from a judgment of specific performance in this contract action. The sole issue is whether the trial court erred in finding that the plaintiff had accepted the defendants’ counteroffer prior to the defendants’ revocation of that counteroffer and thus created an enforceable contract between the parties. We find error.

The trial court found the following facts. The defendant Edward Sherman had engaged Y.R. Brokers as listing agent for the sale of a business with the principal asset being a real estate advertisement publication known as the “Showcase of Homes.” The plaintiff contacted V.R. Brokers as a prospective purchaser. On December 5, 1985, the plaintiff, made a written offer to purchase the business for $75,000, and attached certain conditions to the offer. Later the same day, Sherman signed a written counteroffer to sell the business for $80,000, and indicated that two of the conditions which the plaintiff attached to his offer were not acceptable.

On December 7, at 11:35 a.m., the plaintiff, purporting to accept the counteroffer, signed it before a notary public, and then brought it to the office of V.R. Brokers around noon on that day. At about 9 a.m. on that same day, Sherman informed the principal of V.R. Brokers, Robert Renault, that he wanted to cancel his counteroffer. This information was communicated to the plaintiff by Renault verbally immediately before the plaintiff handed the signed counteroffer to Renault at noon on December 7.

On the basis of these findings, the court concluded that the counteroffer was not effectively revoked because the revocation was not communicated to the plaintiff before he accepted the counteroffer. The court specifically found that there was a contract enforceable against the defendants when the plaintiff signed the counteroffer before a notary public at 11:35 a.m. on December 7.

“It is a basic principle of contract law that in order to form a binding contract there must be an offer and acceptance based on a mutual understanding by the parties. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249, 268 A.2d 391 (1970); Zahornacky v. Edward Chevrolet, Inc., 37 Conn. Sup. 751, 754, 436 A.2d 47 (1981).” Cavallo v. Lewis, 1 Conn. App. 519, 520, 473 A.2d 338 (1984). The counteroffer by Sherman created a power of acceptance in the plaintiff. Cavallo v. Lewis, supra; 1 Restatement (Second), Contracts § 35. That counteroffer, however “was revokable by the defendant at any time before acceptance by the [plaintiff].” Lloyd & Elliot, Inc. v. Parke, 112 Conn. 504, 507, 152 A. 825 (1931); J. Calamari & J. Perillo, The Law of Contracts (2d Ed.), § 2-20 (d).

The trial court’s conclusion that the plaintiff’s acceptance of the counteroffer was effective when he signed the counteroffer was contrary to our law. “Revocation of an offer in order to be effectual must be received by the offeree and 'before he has exercised his power of creating a contract by acceptance of the offer.’ Restatement, 1 Contracts, § 41 and § 69, Comment a; 1 Page, Contracts, § 134. Acceptance is operative, if transmitted by means which the offeror has authorized, as soon as its transmission begins and it is put out of the offeree’s possession . . . irrespective of whether or when it is received by the offeror.” (Citations omitted.) L & E Wertheimer, Inc. v. Wehle-Hartford Co., 126 Conn. 30, 35, 9 A.2d 279 (1939). See also 1 Restatement (Second), Contracts §§ 56, 63. The plaintiff’s act of signing the written counteroffer was not sufficient to constitute an acceptance of the counteroffer. The act of signing the counteroffer in this case failed to communicate the acceptance to Sherman or his agent and failed to put the acceptance out of the plaintiff’s possession. It was, therefore, ineffective to create a contract.

When Sherman, through his agent, informed the plaintiff that the counteroffer was withdrawn, the plaintiff’s power to accept the counteroffer no longer existed. 1 Restatement (Second), Contracts § 42. This was done before the plaintiff had properly accepted the counteroffer by transmitting the signed counteroffer to Renault. Accordingly, no enforceable contract between the parties was ever created.

There is error, the judgment is set aside and'the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The defendants in this action are Adgraphics, Inc., and Edward Sherman, individually and as executor of the estate of Ellen Sherman. At all times relevant to this action, Edward Sherman acted on behalf of Adgraphics, Inc., in those capacities.


text:
    State of Connecticut v. Anthony Testo
    (6070)
    Spallone,.Daly and Norcott, Js.
    Argued March 10
    decision released March 31, 1988

      David J. Laudano, with whom, on the brief, was Raymond W. Ganim, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, was David Sullivan, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant is appealing from the trial court’s denial of his motions to withdraw his plea of nolo contendere and to open the judgment rendered against him. The defendant, a pharmacist, had pleaded guilty to one count of vendor fraud in violation of General Statutes §§ 17-83k and 53a-124 (a) (1).

The principal issue raised in this appeal is whether the defendant’s plea was entered voluntarily and intelligently where the defendant claims that he was not advised by his counsel concerning administrative sanctions which could result from his conviction. The trial court, in denying the defendant’s motion to withdraw his plea of nolo contendere, found there existed no valid reason to withdraw the plea or to open the judgment.

The trial court filed a detailed and legally sound memorandum of decision which indicates that the trial court afforded the defendant a full evidentiary hearing on the defendant’s motions. The court fully analyzed the issues raised, cited the proper authorities and properly found that the defendant failed to prove that misadvice by counsel was grounds to allow withdrawal of the plea or opening of the judgment of conviction. The trial court’s decision articulates the issues involved in this appeal and explains the legal basis for its conclusions. It may be referred to for a detailed discussion of the facts and applicable law. See Cantor v. Department of Income Maintenance, 12 Conn. App. 435, 437-38, 531 A.2d 606 (1987).

There is no error.

       The defendant claims that he was not advised by his counsel that, as a result of his conviction, he could be suspended from participation in the medicaid and medicare reimbursement programs for a period of three years.

       See memorandum of decision filed in State v. Testo, Superior Court in the Judicial District of Fairfield, Docket No. 31406, April 22, 1987.


text:
    City of Stamford v. Stamford Police Association
    (5607)
    Dupont, C. J., Borden and Stoughton, Js.

      Argued February 11
    decision released April 26, 1988

      Deborah Steeves, assistant corporation counsel,' for the appellant (plaintiff).

      William W. Ward, for the appellee (defendant).
   Borden, J.

The plaintiff city appeals from the judgment of the trial court denying its application to vacate and granting the defendant union’s application to confirm an arbitration award of the state board of mediation and arbitration (state board). The plaintiff claims that the court erred in finding that the arbitration award did not violate public policy. We find no error.

The following facts are relevant to this appeal. Robert Esposito is a Stamford police officer and a member of the Stamford Police Association. Esposito, who is blind with little hope of recovering his sight, was terminated from sick leave status. Esposito and the defendant union ultimately brought their grievance to the state board, contending, inter alia, that article seven of the collective bargaining agreement between the parties made no provision for the cessation of an extended sick leave status for an officer. The state board agreed that the plaintiff had violated article seven and ordered that Esposito be restored to his extended sick leave status.

The plaintiff moved to vacate the arbitration award pursuant to General Statutes § 52-418. The defendant moved to have the award confirmed pursuant to § 52-417. The plaintiff claimed that the arbitration award was void in that it violates public policy. Specifically, the plaintiff asserted that because it cannot replace disabled policemen on sick leave status with officers who are capable of performing the duties of the disabled policemen, the award violates the city’s public policy of providing public safety. The trial court disagreed, concluding that “[although the safety and security of town residents is an important and aspirational public policy . . . whatever impact restoring a disabled officer to sick leave status would have on this policy, it does not amount to such a ‘violation of public policy’ to warrant vacating the award.” This appeal followed.

“[T]he judiciary’s power to enforce the terms of a collective bargaining agreement is at all times exercised subject to the restrictions and limitations of public policy as manifested in constitutions, statutes and applicable legal precedents.” Stratford v. Local 134, IFPTE, 201 Conn. 577, 590, 519 A.2d 1 (1986). “Parties cannot expect an intervening arbitral award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). ‘In such a case, we are not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. . . . If the contract term is illegal in light of conflicting statutes, it is not legitimated by the arbitration process; and if the agreement should not on that account be enforced, it is not rendered enforceable by an arbitrator’s decision.’ Id., 195-96; International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145-47, 483 A-2d 626 (1984).” State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986); see also State v. AFSCME, 13 Conn. App. 461, 467, 537 A.2d 517 (1988).

The plaintiff, however, has failed to show how this arbitration award violates any recognized public policy. The plaintiff’s reliance on the fact that police officers are engaged in the important field of public safety and that “the need for public confidence in the police force is a matter of great concern and public policy,” is not sufficient to invalidate the arbitration award which is the subject of this appeal. We fail to see how a police officer’s contractual entitlement to unlimited sick leave benefits is the type of event which will undermine either public safety or public confidence in law enforcement activities. Cf. International Brotherhood of Police Officers v. Windsor, supra, 148 (because honesty of police officers is central to criminal justice system, arbitration award upholding suspension of officer for insisting on being truthful in performing his official duties violates public policy). That the city may not be able to fill Esposito’s position in the field because he remains on extended sick leave status simply does not rise to the level of a violation of public policy. The collective bargaining agreement, as interpreted by the state board, may be anomalous, but it violates no recognized public policy.

There is no error.

In this opinion the other judges concurred.